Citizens Street Railroad Co. v. Heath

Decision Date26 November 1901
Docket Number3,747
Citation62 N.E. 107,29 Ind.App. 395
CourtIndiana Appellate Court

Transfer denied June 20, 1902.

From Hendricks Circuit Court; T. J. Cofer, Judge.

Action by Samuel Heath against the Citizens Street Railroad Company for personal injuries of his wife. From a judgment for plaintiff, defendant appeals.


F Winter, C. Winter, W. H. Latta, E. G. Hogate and J. L. Clark for appellant.

W. J. Beckett, T. S. Adams and S. A. Enloe, for appellee.

COMSTOCK C. J. Henley and Wiley, JJ., dissent.



Appellee, who was plaintiff below, recovered a judgment for $ 5,500 in the court below in an action for the loss of services of his wife, and for expenses incurred on account of an injury to her alleged to have been caused by negligence on the part of appellant while his wife was a passenger upon one of appellant's cars. The action was commenced in the Marion Superior Court and tried upon change of venue in the Hendricks Circuit Court.

The first and second specifications of error question the sufficiency of the complaint. Counsel for appellant contend that it contains no general allegation that the injuries to appellee's wife were sustained without any fault or negligence on her part. It is claimed that it is necessary, before any recovery can be had on account of the injuries complained of, to aver that no negligence on the part of the wife contributed to such injury. The general allegation that the injury for which suit is brought was caused without fault upon the part of plaintiff is the proper one to be made. "It relates directly to the cause of action, and includes the acts which caused the injury, as well as the injury itself, and negativing contributory negligence as to all the matters concerning which its existence would defeat a recovery." The freedom from contributory negligence may, however, be shown by the general averment stated, and by specific facts alleged. If it appears from the allegations of the complaint that the injured party was without fault contributing to his injury, the complaint is good as against a demurrer. A pleading is to be judged by its general scope, and a reasonable construction given its averments; a strained construction is not justified.

In Chicago, etc., R. Co. v. McDaniel, 134 Ind. 166, 172, 32 N.E. 728, the Supreme Court say: "A strained construction can not be placed upon a pleading, as against the pleader, to invalidate his pleading, if a fair and reasonable construction will sustain it, and especially is this true in this court in relation to a pleading construed and held good by the trial court."

The complaint before us alleges that plaintiff's wife desired to alight at the intersection of Greer street and Virginia avenue in the city of Indianapolis, said point being a regular stopping place for defendant's cars; that she notified defendant of her intention to alight there, and that in response to her notice the car was stopped at said point, "And this plaintiff's wife proceeded with due diligence and care to alight from said car, but the plaintiff says that while his said wife was in the act of alighting from said car, and without fault or negligence on her part, or on the part of this plaintiff, the defendant negligently started said car, and negligently threw this plaintiff from said car to the ground, without fault or negligence on her part, and without fault or negligence on the part of the plaintiff, negligently injuring this plaintiff's wife," etc. The whole occurrence is detailed in the complaint, and every fact that occurred from the time the defendant was notified to stop its car until the plaintiff's wife was thrown to the street and injured, is set forth.

The only reasonable inference to be drawn from these averments is that the plaintiff's wife was without fault on her part injured by the negligence of appellant. While the pleading shows that certain negligent acts of the defendant caused the injury, and that the plaintiff was without fault in respect to those acts, the pleading shows that there was no contributory negligence. The complaint alleges no act that could have caused her injury, except of being thrown from the car. This act is alleged to have been negligent, and that plaintiff and his wife were free from fault. The injury is charged to be so directly the result of the negligent acts of the defendant as to negative every inference that such injury was caused or aggravated by the negligence of the plaintiff, or that there had been any want of ordinary care on the part of the plaintiff or his wife.

Appellant next contends that the court erred in allowing appellee to amend the second paragraph of reply after the trial had been in progress several days. This is made the fifth specification of error. The original second paragraph of reply by the amendment was taken out of the record. It is not claimed that this paragraph as amended was insufficient. The right to amend pleadings is given the trial court, subject to be reviewed by the Appellate Court. §§ 345, 397 Burns 1901, §§ 342, 394 Horner 1901. It is insisted by counsel for appellee that no showing was made by appellant that the issues were changed by the amendment, or that appellant was surprised or prejudiced by this action of the court. We are not referred by appellant's counsel to any page of the record where such showing is made. "The defendant made no offer to show that he was misled or prejudiced by the amendment, but did nothing more than except to the ruling of the court. Our decisions establish the rule that where it does not appear that the defendant was prejudiced by the amendment the judgment will not be reversed, although the attempted amendment was not made until after the court had announced its finding." Judd v. Small, 107 Ind. 398, 8 N.E. 284; Burns v. Fox, 113 Ind. 205, 14 N.E. 541; Hay v. State, ex rel., 58 Ind. 337; Wabash, etc., R. Co. v. Morgan, 132 Ind. 430, 31 N.E. 661; Chicago, etc., R. Co. v. Hunter, 128 Ind. 213, 27 N.E. 477; Bever v. North, 107 Ind. 544, 8 N.E. 576.

The third paragraph of reply is claimed to have been insufficient for defects that are set out in appellant's brief. It is stated in appellee's brief that it nowhere appears in the transcript that any ruling was made upon their demurrer. Appellant does not cite the court to the page of the transcript showing such ruling. We take it, in the absence of any counter-statement in the reply brief, that such showing does not appear. The question of the sufficiency of these paragraphs is not therefore presented. Fleming v. McClaflin, 1 Ind.App. 537, 27 N.E. 875; Memphis, etc., Co. v. Pikey, 142 Ind. 304, 40 N.E. 527.

It is assigned as causes for the granting of a new trial, separately as to each, that the court erred in refusing to submit to the jury the sixth, eighth, fourteenth, sixteenth, twentieth, twenty-first, twenty-second, twenty-third, and twenty-fourth interrogatories submitted by the appellant. The complaint alleged that the defendant had negligently injured his wife. The defendant answered (1) by general denial; (2) plea of settlement. Appellee replied (1) by general denial; (2) no consideration; (3) fraud in procurement of settlement; (4) non est factum. Appellant introduced no evidence to show that the accident and injury of appellee's wife did not occur as alleged in the complaint and testified to by appellee's witnesses. The defense made to the action was that appellee had released appellant from whatever claim he had on account of the injuries to his wife for $ 25.

The sixth, eighth, fourteenth, and sixteenth interrogatories refer only to the issues raised by the third paragraph of reply. The jury found specially in favor of appellee on the issue raised by the second and fourth paragraphs of reply, (1) that there was no consideration for the execution of the release; (2) that the plaintiff did not execute the release. The jury finding that there was no consideration for the release, and that the plaintiff never executed it, he was entitled to a verdict without reference to what the answers of the jury might have been upon the question of fraud. The refusal to submit them, if error, was harmless. Board, etc., v. Nichols, 12 Ind.App. 315, 54 Am. St. 528, 40 N.E. 277. Interrogatories twenty, twenty-one, twenty-two, twenty-three, and twenty-four asked the jury to itemize appellee's damages. It has been held that this is not proper practice in actions for tort. Ohio, etc., R. Co. v. Judy, 120 Ind. 397, 401, 22 N.E. 252; Keller v. Gaskill, 20 Ind.App. 502, 50 N.E. 363.

Appellant contends that instructions thirteen, fourteen, fifteen, and twenty-three requested by it were erroneously refused, and that instructions nineteen and twenty given by the court were erroneously given. We are not referred to the page of the voluminous transcript where these instructions may be found but their purport is stated in brief of counsel. In instruction thirteen appellee asked the court to instruct the jury that whoever receives money from another at the time a contract is signed, which contract recites as its consideration the same sum of money so paid, is estopped in law to deny that the money so received was received as a consideration for the contract, or to say that the money was paid on account of some other and different contract. In the fourteenth instruction, the jury were told that if they found that the appellee had executed a release, and had received $ 25 from the appellant, then it was their duty to find for appellant upon the issues joined in the second paragraph of reply; in the fifteenth that if appellee signed a written instrument, and received $ 25, and was at the time in the full exercise of his normal...

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  • Citizens' St. R. Co. v. Heath
    • United States
    • Indiana Appellate Court
    • November 26, 1901
    ... ... 26, 1901 ... Appeal from circuit court, Hendricks county; Thomas J. Cofer, Judge.Action by Samuel Heath against the Citizens' Street Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.F. Winter, Hogate & Clark, and W. H. Latta, for appellant. W. J ... ...

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