Brown v. American Steel & Wire Company

• Decision Date: 23 April 1909
• Docket Number: 6,383
• Citation: 88 N.E. 80,43 Ind.App. 560
• Parties: BROWN, ADMINISTRATRIX, v. AMERICAN STEEL AND WIRE COMPANY
• Court: Indiana Appellate Court

88 N.E. 80

43 Ind.App. 560

BROWN, ADMINISTRATRIX, v. AMERICAN STEEL AND WIRE COMPANY

No. 6,383

Court of Appeals of Indiana

April 23, 1909

From Tipton Circuit Court; J. F. Elliott, Judge.

Action by Minnie C. Brown, as administratrix of the estate of William Cruse, deceased, against the American Steel and Wire Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Charles O. Roemler, H. O. Chamberlain, John M. Bailey, W. R. Oglebay and F. C. Oglebay, for appellant.

Robert B. Beauchamp, Marcellus A. Chipman, Sanford M. Keltner, Edgar E. Hendee and Gilbert R. Call, for appellee.

OPINION

MYERS, J.

Appellant brought this action against appellee to recover damages for the alleged negligent killing of William Cruse, appellant's intestate. From the amended complaint which was in one paragraph, it appears that on January 27, 1903, appellee was engaged in the manufacture of nails, and other metal goods, at Anderson, Indiana, and on that day said decedent was in its employ as a helper in and about one of its nail machines, the cogs, gearing, belting, etc., of which machine appellee had negligently and carelessly failed and omitted to guard; that, while said machine was being operated said decedent was caught by said unguarded cogs, etc., and thereby greatly and seriously injured; "that such described injuries so received by said decedent, through and by the carelessness and negligence of the defendant in the manner aforesaid, did cause and produce the death of said William Cruse on or about October 30, 1903." The sufficiency of the complaint is not before us.

Appellee answered the complaint in two paragraphs, one in denial, the other averring a compromise and settlement with the decedent for all claims by reason of the injuries so sustained by him. The contract of settlement was in writing, and was made a part of the answer. To said affirmative paragraph of answer a reply in eight paragraphs was filed. The first was a denial. The fifth and sixth were withdrawn. The second paragraph was a partial reply, and related to that part of the answer averring the payment of $ 500 for care and treatment of the decedent. The other paragraphs alleged a tender and offer to return to appellee the money paid by it to the decedent on account of the alleged compromise set up in the answer, and also alleging that, at the time of said compromise and settlement, said decedent was, as appellee well knew, a person of unsound mind, and incapable of understanding and knowing the nature and consequence of the pretended settlement. No question as to any one of these paragraphs is presented. The cause was twice tried. The first trial resulted in a verdict in favor of appellant. On November 28, 1905, appellee's motion for a new trial was sustained. On December 7, 1905, at the request of appellant, ninety days were given in which to file her bill of exceptions. Thereafter such proceedings were had in said cause whereby a second trial was had, and at the close of appellant's evidence the court instructed the jury to return a verdict for the appellee. The jury returned a verdict as directed by the court, and thereupon the appellant filed her motion for a new trial, which on March 6, 1906, was overruled, and 150 days were given in which to file her bill of exceptions, and judgment was rendered in favor of appellee.

The record purports to contain three bills of exceptions. The first is said to include a copy of all the pleadings and order-book entries up to and including the granting of appellee's motion for a new trial. The second bill is said to include all of the evidence given at the first trial. The third includes the evidence introduced and rulings of the court at the second trial.

Appellee insists that neither the second nor the third bill of exceptions is properly a part of the record.

Again looking to the record, we find that on February 22, 1906, and during the time first given, at the request of appellant, the time for filing bill of exceptions number two was extended to June 10, 1906. On May 24, 1906, and within the limit of the first extension, upon the petition of appellant, the time for filing said bill of exceptions number two was extended until July 25, 1906. On July 24, bills of exceptions numbered two and three were presented to the trial judge for settlement and signature, and the same were taken under advisement until October 11, 1906, when they were signed and ordered made a part of the record, and both were filed with the clerk of the Tipton Circuit Court on October 12, 1906. The dates and action of the judge relative to said bills appear from the order-book entries, except the date when said bills were presented to the trial judge, and that date is stated in each of the bills.

Under the common law a bill of exceptions had to be filed during the term at which the alleged erroneous rulings were made. Kirby v. Bowland (1879), 69 Ind. 290; Lengelsen v. McGregor (1904), 162 Ind. 258, 67 N.E. 524. But by statute (§ 656 Burns 1908, § 626 R. S. 1881), the trial court had the power to give time within which to reduce exceptions to writing, and the party so objecting, under § 660 Burns 1908, § 629 R. S. 1881, within the time thus allowed, may "present to the judge a proper bill of exceptions, which, if true, he shall promptly sign and cause it to be filed in the cause; * * * and delay of the judge in signing and filing the same shall not deprive the party objecting of the benefit thereof. The date of the presentation shall be stated in the bill of exceptions, and the entry shall show the time granted, if beyond the term, for presenting the same." Section 661 Burns 1908, Acts 1905, p. 45, makes provision for the extension of time in which to file such bills, where such extension is made necessary on account of the inability or failure of the court reporter to prepare and furnish a transcript of the evidence, "provided, such application for such extension must be made prior to the expiration of the time first given." It is clear under these sections of our statute, that time beyond the term for filing a bill of exceptions bringing into the record the rulings of the court for review, which are reasons for a new trial, may be had only by special leave of the court given on the day the ruling on the motion for a new trial is made, and the fact that time was given must be made to appear by an order-book entry. Citizens' St. R. Co. v. Marvil (1903), 161 Ind. 506, 67 N.E. 921; Theobald v. Clapp (1909), ante, 191. With reference to bill number two, it will be seen that it was nine days after the court had sustained appellee's motion for a new trial before appellant asked, and the court made the order allowing her, ninety days in which to prepare and present to the judge her bill of exceptions. It further appears that this bill was not presented to the judge within the first extension of time, but was presented within the time covered by the second extension. The language of the statute contemplates but one extension, and for that purpose parties are bound to take notice of an application therefor. When the judge extended the time to June 10, his authority in that particular ended, and any order by him made thereafter, under the facts in this case, was without authority and of no effect. Lengelsen v. McGregor, supra; Citizens St. R. Co. v. Marvil, supra; Theobald v. Clapp, supra; Nichols v. Central Trust Co. (1909), ante, 64.

It has been suggested that the order-book entry of the filing of the application by the appellant for the second extension, and the order of the court granting such extension, show that the parties by counsel were present at the time the order was made, and no objection or exception to the action of the court was taken, and for that reason appellee waived its right thereafter to object to the court's action in the premises. We cannot concur in this conclusion. Such an order-book entry, at best, could not be construed as showing more than a mere consent on the part of the appellee to the making of the order. The validity of the order depended upon the power of the judge to make it, and not upon the consent of the parties. The statute, as we have said, has reference to an extension of time based upon an application made to the judge within "the time first given." The principle applicable here is not unlike that enforced in Lengelsen v. McGregor, supra, where it is said: "After the expiration of the time allowed, the judge loses jurisdiction over the subject-matter, and cannot be reclothed with it by agreement of the parties." Bill number two is not properly a part of the record.

Bill of exceptions number three was presented to the judge for settlement within the time first given, and while it was not signed and filed by the judge until after that time had expired, such failure was not because of any fault chargeable to appellant. Having done all that she was required to do under the statute, her right to have this bill considered a part of the record will not be denied because of the failure of the court to sign and file it within the time designated for that purpose. Malott v. Central Trust Co. (1907), 168 Ind. 428, 79 N.E. 369; Warner v. Marshall (1906), 166 Ind. 88, 75 N.E. 582; Brower v. Ream (1896), 15 Ind.App. 51, 42 N.E. 824.

It is assigned that the court erred in overruling appellant's motion for a new trial. The reasons in support of the motion, and not waived, are that the verdict of the jury is not sustained by sufficient evidence; that it is contrary to law; and that the court erred in instructing the jury to return a verdict for appellee.

As the record comes to us, and as argued by counsel, the question is: Was the alleged negligence of appellee the proximate cause of decedent's death,...