City of Greenfield v. Johnson

• Decision Date: 25 November 1902
• Citation: 30 Ind.App. 127,65 N.E. 542
• Parties: CITY OF GREENFIELD v. JOHNSON.
• Court: Indiana Appellate Court

30 Ind.App. 127

65 N.E. 542

CITY OF GREENFIELD

v.JOHNSON.

Appellate Court of Indiana, Division No. 2.

Nov. 25, 1902.

Appeal from circuit court, Hancock county; E. W. Felt, Judge.

Action by Mary E. Johnson against the city of Greenfield.From a judgment for plaintiff, defendant appeals.Affirmed.

Uriah S. Jackson and Robt.L. Mason, for appellant.Robert Williamson and Marsh & Cook, for appellee.

WILEY, J.

Appellee sued appellant upon an open account for services rendered.A demurrer to the complaint was overruled.Answer in two paragraphs, to the second of which a demurrer was sustained.Upon the issue joined by the general denial the cause proceeded to trial before a jury.At the conclusion of the appellee's evidence, appellant filed a written motion that the court instruct the jury to return a verdict in its favor.This motion was overruled.Appellant then introduced its evidence, the court instructed the jury, and a verdict was returned for appellee.Appellant's motion for a new trial was overruled.All the rulings adverse to appellant are assigned as error.

The complaint is as follows:

“The plaintiff complains of the defendant, and says that said defendant is indebted to said plaintiff in the sum of five hundred dollars for services as nurse rendered by said plaintiff at the request of said defendant, a bill of particulars of which copy is filed herewith, marked ‘Exhibit A,’ and made a part of this complaint.”

The bill of particulars is as follows:

+---------------------------------------------------------------------------+
                ¦The City of Greenfield to Mary E. Johnson, Dr.                             ¦
                +---------------------------------------------------------------------------¦
                ¦To 28 days and nights nursing smallpox patient, at $15.00 per day  ¦$420 00¦
                +-------------------------------------------------------------------+-------¦
                ¦To clothing destroyed by reason of being infected with said disease¦20 00  ¦
                +-------------------------------------------------------------------+-------¦
                ¦                                                                   ¦$440 00¦
                +---------------------------------------------------------------------------+
                

The demurrer to the complaint is in the following words: “Defendant demurs to plaintiff's complaint for the reason that it fails to state a cause of action against it, as it is a municipal corporation, and can only speak by resolution or ordinance.”If it be conceded that the demurrer is a substantial compliance with subdivision 5, § 342, Burns'Rev. St. 1901(and as to this we do not express any opinion), we think that it is not well taken.The complaint is in the usual and ordinary form recognized by the Code, and adhered to by the courts in a long line of decisions.As to appellant's authority to employ a nurse to care for a smallpox patient in case of an emergency, and to prevent the spread of a contagious disease, it could have been properly presented upon the trial,-and which appellant sought to present by its second paragraph of answer,-but it is not properly presented by the demurrer.The complaint states a cause of action, and the demurrer was properly overruled.

Appellant has not availed itself of its right to have considered and decided the question of the alleged error of the ruling of the court in sustaining the demurrer to the second paragraph of answer, for the reason its counsel have failed to discuss it.It is the uniform rule in this state that a failure to discuss errors relied upon is a waiver of such errors.Pruden v. Board, 156 Ind. 325, 58 N. E. 437;Land Co. v. Jones, 24 Ind. App. 451, 56 N. E. 46;Railroad Co. v. Jeffery, 26 Ind. App. 143, 59 N. E. 330.

All other questions that are presented by the record arise under the motion for a new trial.

The first and second reasons for a new trial are that the verdict is contrary to the law and evidence.Before the court will consider questions which are determinable alone from the evidence, the record must affirmatively show that the evidence given upon the trial is all brought up in the record.The record in this case affirmatively shows that much of the evidence given below is omitted from the transcript of the evidence.The record shows that the appellee offered, and, over appellant's objections, read in evidence, a number of different entries from the records of the common council of appellant city.To illustrate the state of the record as to all such evidence, we quote from the transcript: “Saidpage 28 of the record No. 11 of the common council was thereupon admitted in evidence and read to the jury on behalf of plaintiff from page 28 to page 34, inclusive, being marked by the reporter ‘Plaintiff's Exhibit C,’ and the same is made a part of the testimony in this cause.”There are six of these entries, but the evidence referred to does not appear in the record.No effort has been made to bring it into the record.As this evidence is not in the bill,...