City of Columbus v. Strassner
| Decision Date | 25 April 1893 |
| Docket Number | 16,252 |
| Citation | 34 N.E. 5,138 Ind. 301 |
| Parties | City of Columbus v. Strassner |
| Court | Indiana Supreme Court |
Reported at: 138 Ind. 301 at 305.
From the Decatur Circuit Court.
Judgment reversed, with directions to grant a new trial.
C. J Kollmeyer, for appellant.
F. E Gavin and J. C. Orr, for appellee.
This was an action by the appellee against the appellant, to recover damages sustained by the appellee on account of a personal injury suffered by reason of a defective and unsafe sidewalk. No question is made as to the sufficiency of the pleadings in the cause. A trial by a jury resulted in a verdict for the appellee, upon which the court, over a motion for a new trial, rendered judgment.
The assignment of error calls in question the correctness of the ruling of the circuit court in overruling the appellant's motion for a new trial.
It is contended by the appellant that the circuit court erred:
First. In overruling an application for a change of venue.
Second. In admitting improper and incompetent evidence to go to the jury on behalf of the appellee.
Third. In its instructions to the jury.
The parties entered into an agreement to the effect that, if the appellant filed an affidavit sufficient to entitle it to a change of venue, the cause should be sent to the Shelby Circuit Court. The affidavit was not filed until it was too late, under the rules of the court, and the application for a change of venue was refused for that reason. It is contended by the appellant that, by reason of the agreement, the court erred in this ruling, but we think otherwise. The affidavit was not sufficient to entitle the appellant to a change of venue, for the reason that it failed to state any legal excuse for a failure to make the application within the time fixed by the rules of the court.
The court did not err in admitting the evidence of which the appellant complains. While it is generally true that a physician's bill for treating the wife is the debt of the husband, we perceive no reason why she may not treat it as her own debt, and pay it. If the appellant was liable at all in this case it was liable for the medical bill rendered necessary by the appellee's injuries. It can make no difference to it whether it pay such bill to the wife or to the husband.
If the wife paid it out of her own separate means, the husband can not recover it, so the appellant is in no danger of being compelled to pay it more than once.
The appellant contends that the court erred in giving to the jury instructions numbered four, five, six, twenty-five, twenty-eight, and twenty-nine.
We think all the instructions of which complaint is made, except twenty-eight and twenty-nine, state the law correctly. Twenty-nine states the law too favorably to the appellant.
Instruction twenty-eight is as follows:
In giving this instruction to the jury, we think the circuit court erred.
There was a controversy between the appellant and the appellee as to whether the latter had exercised ordinary care in the selection of a physician to treat her injuries. There was much evidence introduced by the appellant tending to show that the physician mistook the nature of the appellee's injuries, and, as a consequence, did not properly treat her. Under these circumstances, we think the question as to whether the physician was skillful and the question as to whether the appellee followed his...
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