City of New Albany v. Lyons
| Decision Date | 08 February 1918 |
| Docket Number | 9,456 |
| Citation | 118 N.E. 587,69 Ind.App. 478 |
| Parties | CITY OF NEW ALBANY v. LYONS, ADMINISTRATRIX |
| Court | Indiana Appellate Court |
Rehearing denied May 16, 1918. Transfer denied March 5, 1919.
From Scott Circuit Court; Robert A. Creigmile, Judge.
Action by Mollie Lyons, administratrix of the estate of Harry Lyons deceased, against the city of New Albany. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Korbly & New, Jewett, Bulleit & Jewett and S. B. Walls, for appellant.
John W Ewing, Samuel L. Trusty, Noble Hays and George H. Hester, for appellee.
This is an action by appellee against appellant for damages on account of the death of Harry Lyons, which it is charged was caused by the carelessness and negligence of appellant, while he was in its employ, repairing or adjusting an electric fire-alarm system maintained by it. The cause was tried on an amended complaint filed subsequently to the judgment of reversal on a former appeal. Appellant filed a demurrer to the same for want of facts, which was overruled. No memorandum was filed with such demurrer, and none was necessary, as this action was pending when the act of 1911 requiring the same took effect. The issues were closed by an answer in general denial. The cause was submitted to a jury for trial. At the close of all the evidence appellant filed a motion for a peremptory instruction in its favor, which was overruled. The jury returned a verdict in favor of appellee for $ 3,000, and judgment was rendered accordingly. Appellant filed its motion for a new trial, which was overruled, and has assigned errors which call in question the action of the trial court in overruling its demurrer to appellee's amended complaint, and in overruling its motion for a new trial.
Appellee contends that appellant, in the preparation of its brief, has failed to comply with that part of Rule 22, relating to separately numbered propositions or points under a separate heading of each error relied on. An inspection of appellant's brief discloses that there has been such a substantial compliance with such rule, in the particular named, to enable us to consider the questions we are required to determine on this appeal.
Appellant contends that the court erred in overruling its demurrer to the amended complaint on which the last trial was had. It bases this contention on a claim that the allegations of such complaint show that the decedent, Harry Lyons, at the time he received his fatal injuries, represented appellant in the maintenance and operation of its fire department; that in so doing he was performing a governmental service on its behalf, and hence it is not liable for such injuries. It further contends that the uncontradicted evidence on the trial established such fact, and hence the court erred in refusing to instruct the jury at the close of the evidence to return a verdict in its favor. As against these contentions appellee asserts: First, that this court, on a former appeal of this cause, determined that appellant was liable to appellee on proof of the facts stated in its amended complaint, and that such determination, as to the liability of appellant on such facts, is now "the law of the case." If appellee is correct in this contention, its remaining contention, as to what such amended complaint in fact shows with reference to appellant's liability, will not require consideration.
These opposing contentions call for a consideration of such former appeal, in order to ascertain what, in fact, was determined thereby. In so doing this court will take judicial notice of the contents of the record on such appeal. Hancock v. Diamond Plate Glass Co. (1906), 37 Ind.App. 351, 75 N.E. 659; Westfall v. Wait (1905), 165 Ind. 353, 73 N.E. 1089, 6 Ann. Cas. 788. An examination of such record discloses that this action was commenced by appellee against appellant and the United Gas and Electric Company on March 28, 1908, for damages on account of the death of said Harry Lyons, while he was in the employ of appellant, repairing or adjusting an electric fire alarm system maintained by it, by reason of the alleged carelessness and negligence of appellant and said company. The complaint was in two paragraphs, to each of which a demurrer was filed for want of facts, and overruled. The issues were closed by an answer in general denial. Appellee dismissed her complaint as to said company, and thereafter the case was submitted to a jury for trial. At the close of appellee's evidence, on motion of appellant, the jury was instructed to return a verdict in its favor, which was done, and judgment was rendered accordingly. A motion for a new trial was filed and overruled. Appellee appealed to this court, and assigned the overruling of her motion for a new trial as error, thereby challenging the action of the court in giving such peremptory instruction in favor of appellant. This court held that the giving of such instruction was error, reversed the judgment of the lower court, with instructions to sustain appellee's motion for a new trial. Lyons v. City of New Albany (1913), 54 Ind.App. 416, 103 N.E. 20. On the cause being remanded to the trial court, the issues were reopened, and appellee filed an amended complaint in one paragraph, being the complaint on which issues were made, trial had, and the judgment rendered, from which the present appeal is prosecuted, as hereinbefore stated. A comparison of said amended complaint with the complaint involved in said former appeal discloses that said two complaints in all essential and material respects are the same. Therefore the fact of such amendment, subsequent to the reversal of the former appeal, is of no consequence in determining the question under consideration, since there is no substantial difference in the character of the two complaints. Pittsburgh, etc., R. Co. v. Noftsger (1901), 26 Ind.App. 614, 60 N.E. 372; State, ex rel. v. Christian (1897), 18 Ind.App. 11, 47 N.E. 395; Shirk, Exr., v. Lingeman (1901), 26 Ind.App. 630, 59 N.E. 941; Jeffersonville Water Supply Co. v. Riter (1897), 146 Ind. 521, 45 N.E. 697; Nave v. Powell (1916), 62 Ind.App. 274, 110 N.E. 1016.
Appellant does not claim that the amended complaint on which the second trial was had presents any new issue, or that it differs in any essential particular from the amended complaint on which the first trial was had, but relies on the fact that the nature of its defense had been changed. While appellant had a right, generally speaking, to change the theory of its defense on the second trial, it is evident that such change must be limited to a theory not precluded by the decision on the former appeal. Thus a defense based on the theory of the insufficiency of the complaint would be ineffectual, if such complaint on the former appeal had been determined to be sufficient, or the right to question its sufficiency had been waived.
Appellant, however, contends that the question on which it relies for a reversal on this appeal, viz., the nonliability of appellant, by reason of its being engaged in the discharge of a governmental duty, in the conduct of the work in which appellee's decedent was killed, was not presented, considered, or determined on said former appeal; and therefore it is not precluded from having it determined on this appeal.
As affecting this contention, the following rules are well settled in this state: Decisions, made on an appeal of a cause, become "the law of the case" on all subsequent appeals involving the same questions. James v. Lake Erie, etc., R. Co. (1897), 148 Ind. 615, 48 N.E. 222; Brunson v. Henry (1898), 152 Ind. 310, 52 N.E. 407; Foudray v. Foudray (1913), 54 Ind.App. 164, 101 N.E. 679. This is true, whether the decision on such former appeal was right or wrong. Lillie v. Trentman (1891), 130 Ind. 16, 29 N.E. 405; Board, etc. v. Bonebrake (1896), 146 Ind. 311, 45 N.E. 470. Where the questions presented on a second or subsequent appeal were necessarily involved in a former appeal, and where the conclusion declared could not have been reached, without expressly or impliedly deciding such questions, the decision on such former appeal rules the case throughout all subsequent stages. Forgerson v. Smith, Admr. (1885), 104 Ind. 246, 3 N.E. 866; Harmon v. Pohle (1914), 55 Ind.App. 439, 103, 103 N.E. 1087 N.E. 1087; Board, etc. v. Bonebrake, supra; McKinney v. State, ex rel. (1889), 117 Ind. 26, 19 N.E. 613. This is true, no matter what form the question assumes on either appeal, so long as it is in fact the same question. Forgerson v. Smith, Admr., supra; Board, etc. v. Bonebrake, supra.
The determination of the sufficiency of a pleading on appeal comes within the rule, and any decision so made in that regard will be adhered to on all subsequent appeals, unless such pleading has been amended so as to materially change its character. Lillie v. Trentman supra; James v. Lake Erie, etc., R. Co., supra. Amendments to a pleading which only amplify, or the introduction of other evidence which is only cumulative, does not prevent the operation of the rule in question. Alerding v. Allison (1908), 170 Ind. 252, 83 N.E. 1006, 127 Am. St. 363. All questions reserved for a review by an appellate court must be presented on the first appeal from a final judgment, or not at all; for thereafter all questions presented by the record will be considered as finally determined by the judgment. All such questions, not expressly affirmed or reserved, will, by implication, be deemed affirmed. A failure to present any such question will be a waiver of any right to its consideration on a subsequent appeal. Stevens v. Templeton (1910), 174 Ind. 129, 91 N.E. 563; Chicago, etc., R. Co. v. City of Bloomington (1914), 182 Ind. 236, 105 N.E. 561. ...
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