City of Valparaiso v. Chester

• Decision Date: 14 December 1911
• Docket Number: No. 21,897.,21,897.
• Parties: CITY OF VALPARAISO v. CHESTER.
• Court: Indiana Supreme Court

176 Ind. 636

96 N.E. 765

CITY OF VALPARAISO

v.CHESTER.

No. 21,897.

Supreme Court of Indiana.

Dec. 14, 1911.

Appeal from Superior Court, Porter County; Harry B. Tuthill, Judge.

Action by Nancy Chester against the City of Valparaiso. From a judgment for plaintiff and an order overruling a motion for a new trial, defendant appealed to the Appellate Court, which transferred the cause to the Supreme Court under Burns' Ann. St. 1908, § 1405. Affirmed.H. H. Loring and E. W. Agar, for appellant. D. E. Kelly, for appellee.

JORDAN, J.

The facts in this case show that one Sylvester W. Chester was connected with a fire company in the service of the city of Valparaiso, Porter county, Ind. He was employed as a driver of a fire wagon, and it appears that it was his duty, as driver of such wagon, upon a fire signal being given, to drive this wagon, which contained chemicals, hose, and other means used in subduing fires. This fire wagon weighed about 4,500 pounds and was drawn by two spirited horses. It was the duty of Chester, the driver, when making a run to a fire, to drive these horses rapidly over the streets of said city until the fire was reached. On the 14th day of June, 1905, it appears that Franklin street, a public street of said city, was out of repair in this respect; in the roadway of said street a flagstone projected eight inches above the surface of the street. Immediately at the side of this projection there was what is termed a “chuck hole” or depression a foot deep in the street. For two months prior to the accident in question it appears that the city had knowledge of this condition of the street. On May 14, 1905, Chester, as the driver of said fire wagon, while driving at a rapid gait to a fire in the city, as his duty required him to do, the wagon collided with said obstructions, and the wheels of the wagon dropped into the “chuck hole” or depression above mentioned, and by reason thereof the wagon was partly overturned, and Chester was thrown onto and against the pavement, on account of which he was bruised about his hips, his ribs were broken, and his spine was wrenched and injured, and he sustained other injuries, all of which rendered him a permanent cripple.

[1] To recover for his injuries, he, on the 24th day of September, 1906, commenced an action in the Porter superior court against the incorporated city of Valparaiso. The issues were joined between the parties, and a trial was had before a jury, and on March 7, 1907, the jury returned a verdict in favor of plaintiff for $2,000. After the return of the verdict a motion for a new trial was made by the defendant city, but on September 15, 1907, during the pendency of this motion, the plaintiff died. It is shown that after his death Nancy C. Chester was appointed administratrix of his estate; and on September 25, 1907, upon her application as such administratrix, she was substituted as plaintiff in the action. Thereupon she moved the court to render judgment nunc pro tunc in her favor as administratrix as of the date of March 7, 1907, the day upon which the verdict was returned. The defendant moved to dismiss the action on account of the death of plaintiff, alleging and claiming that by his death, under the law, the action abated, and that there could be no judgment rendered upon the verdict. The court sustained the motion of the administratrix and rendered judgment nunc pro tunc upon the verdict as of the date upon which it was returned into court. Appellant contends that, as the action was in tort, arising out of the personal injuries on account of the alleged negligence of the defendant, it must be held to have died with the person, and inasmuch as the plaintiff died after the return of the verdict but before the motion for a new trial had been ruled upon or judgment rendered, upon the verdict, the action consequently abated or died as declared by section 283, Burns' 1908.

This point is decided adversely to appellant's contention in Hilker, Administratrix, v. Kelley, 130 Ind. 356, 30 N. E. 304, 15 L. R. A. 622, and authorities there cited. In Kelley v. Riley, 106 Mass. 339, 8 Am. Rep. 336, the court said: “As a matter of practice, at common law, as well as under the provisions of Gen. Sts. c. 133, § 7, and chapter 115, § 14, judgment will be entered on the verdict on motion, as of a preceding day or term of the court, whenever an action, continued or postponed for the purpose of obtaining a disposition thereof, which may relieve a dissatisfied party from a verdict, would otherwise fail by the death of a party to it. So if the death occur after verdict, delay during the time taken for the argument of law questions upon which the validity of it depends or for advisement thereof will not be suffered to deprive one of the benefits to which he appears to have been justly entitled under it. Springfield v. Worcester, 2 Cush. 52;Currier v. Lowell, 16 Pick. 170.”

A motion for new trial in a cause may be made either before or after the rendition of the judgment upon the verdict or finding of the court. Therefore the delay in rendering the judgment in this case after the return of the verdict must be attributed to the court. It is a well-settled rule, however, that a delay which is the act of the court is never permitted to operate to the prejudice or harm of a party in a cause.

[2] After disposing of the question raised in regard to the abatement of the action, we now pass to a consideration of other points in the case. It is first contended by counsel for appellant that under the facts alleged in the amended complaint no actionable negligence on the part of the appellant is shown. Therefore it is argued that the court erred in overruling the demurrer to the complaint. Appellant, however, is not entitled to have this point reviewed or considered for the reason that it has not complied with the requirements of subdivision 5, rule 22 of this court (55 N. E. vi), by setting out in its brief the amended complaint either in full or in substance, so that the error of which it complains may be presented or shown by its brief. This proposition is so well settled...