Anderson v. O'Conner

• Decision Date: 28 October 1884
• Docket Number: 11,858
• Parties: City of Anderson v. O'Conner
• Court: Indiana Supreme Court

98 Ind. 168

City of Anderson v. O'Conner

No. 11,858

Supreme Court of Indiana

October 28, 1884

From the Madison Circuit Court.

The judgment is affirmed, with costs.

M. S Robinson and J. W. Lovett, for appellant.

W. R Pierse, C. B. Gerard and R. Lake, for appellee.

OPINION

Howk J.

This was a suit by the appellee, Hannah O'Conner, against the appellant, the City of Anderson, in a complaint of two paragraphs. The cause was put at issue by the appellant's answer in general denial of the complaint. The issues joined were tried by a jury, and a verdict was returned for the appellee, assessing her damages in the sum of $ 85, and over the appellant's motion for a new trial, judgment was rendered on the verdict.

The appellant has here assigned, as errors, the following decisions of the circuit court:

1. In overruling its demurrer to appellee's complaint; and,

2. In overruling its motion for a new trial.

In the first paragraph of her complaint, the appellee alleged that, on the 17th day of March, 1883, the appellant leased and rented of the appellee a house belonging to her, in Anderson, Indiana, by the month, for which house appellant agreed and promised to pay appellee $ 5 per month for each month in advance; that in pursuance of such agreement, appellant took possession of said house, on March 17th, 1883, and then paid appellee the first month's rent therefor in advance; that the appellant had never surrendered said house to appellee, that the tenancy still continued, and that there was then due from appellant, for such rent, the sum of $ 40, which sum appellant failed and refused to pay. Wherefore, etc.

In the second paragraph of her complaint, the appellee first stated the appellant's indebtedness to her for rent of her house, substantially as the same is stated in the first paragraph, and then alleged that the appellant, in further consideration of the premises, agreed to properly take care of and protect said property and house from all danger and damages, and to be guilty of no negligence in the care and protection of the same, and to properly repair the same whenever necessary, and to deliver the same to appellee, at the expiration of the tenancy, in as good condition and repair as the same then was; that the house was then in good repair as a residence, and was rented and received, and was to be held by appellant and occupied as a residence; that, under such contract, appellant took possession of said residence on March 17th, 1883, and on that day placed therein a person, then under appellant's control, who had the dangerous disease known as the small-pox, to be there treated and nursed for such disease, well knowing that such person then had such dangerous disease; that a few days after such diseased person was so placed in said house, he died of said small-pox; and the appellant removed the dead body of such person from said house for burial, and, without giving appellee any notice whatever, negligently left no person in charge of said house, left fire in the fire-place therein, did not lock or bolt the doors thereof, but wholly abandoned the same as to all care therefor, and procured no one to watch over or protect the same, and left such house without any one to look after it or to take care or charge thereof; that by reason of appellant's negligence as aforesaid, the appellee's said house, on or about March 20th, 1883, was wholly destroyed by fire; that such house, at the time it was so destroyed, was worth the sum of $ 300, in which sum the appellee, by means of the premises, had sustained damages. Wherefore, etc.

The appellant demurred to each of the paragraphs of complaint, "separately and severally," upon the ground "that neither of said paragraphs states facts sufficient to constitute a cause of action." This was the demurrer which the court overruled. But it can hardly be said that this ruling is called in question by assigning, as error, the overruling of a demurrer to the entire complaint. This latter ruling is not shown by the record, and, if it were, there would be no error in the ruling, if either paragraph of the complaint stated a cause of action. Millikan v. Temple, 94 Ind. 261. Waiving this point, however, and conceding, without deciding, that appellant's assignment of error questions, "separately and severally," the sufficiency of each of the paragraphs of complaint, we are of opinion that each paragraph stated facts sufficient to constitute prima facie a cause of action against the appellant.

In discussing the supposed insufficiency of the complaint, the appellant's counsel say: "We have only to say that the complaint and each paragraph show that the contract of renting set out was, as to the city of Anderson, ultra vires and void. The city, as a municipal corporation had no authority to rent or lease the property. The first paragraph shows that defendant rented the house, without showing for what purpose it was rented or leased, or that it was for any purpose ...