Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Born
| Decision Date | 12 December 1911 |
| Docket Number | 7,361 |
| Citation | 96 N.E. 777,49 Ind.App. 62 |
| Parties | CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. BORN ET AL |
| Court | Indiana Appellate Court |
From Tippecanoe Circuit Court; Richard P. DeHart, Judge.
Action by Edward Born and another against the Cleveland, Cincinnati Chicago and St. Louis Railway Company. From a judgment for plaintiffs, defendant appeals.
Affirmed.
Kumler & Gaylord, for appellant.
Haywood & Burnett, for appellees.
Appellees, Edward Born and Theresa Born, partners doing a coal, wood and ice business under the firm name of Samuel Born & Co., sued appellant for damages, caused by the act of appellant on November 12, 1905, in unlawfully and wrongfully entering upon the premises occupied by appellees under a lease, and used by them in conducting their said business, and destroying certain buildings thereon, and certain personal property consisting of a traction engine and other machinery, some harness, oats corn, hay, coal and coke. Issues were formed upon the amended complaint of appellees and appellant's answer in general denial, and a trial by jury resulted in a judgment in favor of appellees for $ 2,085.50, interest and costs.
The errors relied on for reversal arise upon the overruling of the motion for a new trial and are as follows: (1) Refusing to give instructions five and six requested by defendant; (2) refusing to give instructions nineteen and twenty asked by defendant; (3) refusing to sustain defendant's motion to strike out certain testimony of plaintiffs' witnesses Isaac Born and Edward Born; (4) refusing to give instruction sixteen, asked by defendant; (5) giving instruction eleven, at plaintiffs' request.
Appellees insist that this court is not required to consider the questions appellant has attempted to present on the action of the trial court in overruling the motion for a new trial, for the reason that the evidence is not brought before us by a proper bill of exceptions. On this point, suffice to say that the greater part of the irregularities in the transcript upon which appellees rely to sustain their contention have been removed by the clerk's amended certificate, filed by leave of this court. We are convinced, after a careful reference to the authorities cited by both appellees and appellant, that the evidence is properly before us, and as the case must be affirmed on its merits, appellees will not be heard to complain because we considered the evidence.
Instructions five and six, requested by appellant, would have told the jury that unless it found from the evidence that Theresa Born, to whom, as his widow, Samuel Born, in his will, left his interest in the partnership business of Samuel Born & Co., had within ninety days after the probate of said will elected to take under its provisions, then no interest in the property of Samuel Born & Co. would pass to her under the will, and she would take under the law only one-third of her husband's personal property, and the remainder of his personal property would descend to his children.
The substance of these instructions, as far as they relate to the evidence in the case, was contained fully in instructions one, two, three and four, given at defendant's request, which told the jury that before plaintiffs could recover for any damage to the property, they must prove by a preponderance of the evidence that they were on November 12, 1905, the owners as partners of the property proved to have been damaged; that if the evidence shows that on November 12, 1905, Edward Born, as surviving partner, or any other person, was the owner of or had any interest in such property, the plaintiffs could not recover; that if the plaintiffs did not prove that the title to the property owned by the firm of Samuel Born & Co. passed to said plaintiffs prior to November 12, 1905, they could not recover; and that the mere fact that, shortly after the death of Samuel Born, Theresa Born and Edward Born agreed to carry on the business of Samuel Born & Co., composed of Samuel Born and Edward Born as partners, would not of itself transfer to the plaintiffs the title of any of the property owned by such firm.
The law applicable to the case as made by the issues was not correctly stated by instructions five and six. Plaintiffs sue as the parties in possession of the property destroyed, and for the deprivation of the use of the buildings and premises. They were not seeking to recover upon the the theory that they were the absolute owners of the property destroyed, but were relying on a possessory title, that was sufficient on which to base a cause of action.
In the case of Catterlin v. Douglass (1861), 17 Ind. 213, the Supreme Court said: "An action will lie by a mere rightful possessor, against a wrongdoer, for an injury to the possessor's rights." This rule has become so well established in this State as well as other States, that we deem further consideration of it useless. Barber v. Barber (1863), 21 Ind. 468; Winship v. Clendenning (1865), 24 Ind. 439; Bristol Hydraulic Co. v. Boyer (1875), 67 Ind. 236; Ohio, etc., R. Co. v. Trapp (1892), 4 Ind.App. 69, 30 N.E. 812.
Instructions nineteen and twenty would have told the jury that unless it found from the evidence that the plaintiffs as partners were the owners of the entire interest in the property damaged, and not of an undivided interest only therein, they could not recover; and if it found from the evidence that other persons than the plaintiffs had an interest in the subject-matter of the action, then plaintiffs could not recover. These instructions, so far as applicable to the evidence, were covered by instructions one, two, three and four given, and, as said before, it was not necessary for plaintiffs to show an absolute title in order to recover in their action.
The third reason assigned for reversal is the alleged error of the court in refusing to strike out the testimony of Edward Born and Isaac Born as to the monthly rental value of the premises before and after the injury complained of. Isaac Born testified that before the injury the rental value was $ 93.33, and $ 25 afterwards. He was asked what additional facts he took into consideration when he gave the jury the rental value after the damage was done, and answered "The fact that the buildings were destroyed stopped our line of business conduct, and obliged us, to a certain extent, to discontinue the coal, wood and ice business--obliged us to rent properties elsewhere and build on it." Edward Born testified that the monthly rental value of the premises was $ 93 before the injury, and $ 30 afterwards. He was asked whether, in fixing that damage, he took into consideration the loss in the business of Samuel Born & Co. He answered: "We were not able to conduct our business properly without the use of the buildings." The following questions were asked and answers given: Q. "In fixing the rental value, I will ask you whether you took into consideration what value to yourselves or to others than yourselves?" A. "Anybody engaged in the same line of business would have been damaged the same as ourselves." Q. "Did you take into consideration any damage in fixing that...
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