City of Valparaiso v. Chester
| Decision Date | 14 December 1911 |
| Docket Number | 21,897 |
| Citation | 96 N.E. 765,176 Ind. 636 |
| Parties | City of Valparaiso v. Chester, Administratrix |
| Court | Indiana Supreme Court |
From Porter Superior Court; Harry B. Tuthill, Judge.
Action by Sylvester W. Chester against the City of Valparaiso. From a judgment for his administratrix, defendant appeals. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.
Affirmed.
H. H Loring and E. W. Agar, for appellant.
D. E Kelly, for appellee.
The facts in this case show that Sylvester W. Chester was connected with a fire company in the service of the city of Valparaiso, Porter county, Indiana; that he was employed as a driver of a fire wagon, and that it was his duty, when a fire signal was given, to drive this wagon, which contained chemicals, hose and other means used in subduing fires; that this fire wagon weighed about forty-five hundred pounds, and was drawn by two spirited horses; that it was the duty of said Chester, when making a run to a fire, to drive these horses rapidly over the streets of said city until the fire was reached; that on June 14, 1905, 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, and immediately at the side of this projection there was what is termed a "chuck hole," or depression, one foot deep in the street; that for two months prior to the accident in question the city had knowledge of this condition of the street; that on May 14, 1905, while Chester was driving rapidly to a fire in the city, as his duty required him to do, the wagon collided with said obstruction, and the wheels of the wagon dropped into said depression, the wagon was partly overturned, and Chester was thrown onto and against the pavement, on account of which he was bruised about his hips, some of his ribs were broken, his spine was wrenched and injured, and he sustained other injuries, all of which rendered him a permanent cripple.
To recover for his injuries he, on September 24, 1906, commenced an action in the Porter Superior Court against the 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 defendant, but on September 15, 1907, during the pendency of this motion, 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 that the court render judgment nunc pro tunc in her favor as administratrix as of the date of March 7, 1907, the day on which the verdict was returned. The defendant moved to dismiss the action on account of the death of plaintiff, claiming that by his death the action abated, and that there could be no judgment rendered on the verdict. The court sustained the motion of the administratrix, and rendered judgment nunc pro tunc on the verdict as of the date on 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 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, as declared by § 283 Burns 1908, § 282 R. S. 1881.
This point is decided adversely to appellant's contention in the case of Hilker v. Kelley (1892), 130 Ind. 356, 30 N.E. 304, and authorities cited. In Kelley v. Riley (1871), 106 Mass. 339, the court said:
A motion for a new trial in a cause may be made either before or after the rendition of the judgment on 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 that is the act of the court is never permitted to operate to the prejudice or harm of a party in a cause.
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 appellant is shown, and, that therefore, 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 five rule twenty-two of this court, 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 by the decisions of this court that a reference thereto is needless.
It is next insisted that the evidence does not sustain the verdict. Under this head, counsel for appellant contend that Sylvester W. Chester, on becoming the driver of the fire wagon, assumed the...
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