Delphos Hoop Co. v. Smith
| Citation | 95 N.E. 309,176 Ind. 29 |
| Decision Date | 08 June 1911 |
| Docket Number | 21,913 |
| Parties | Delphos Hoop Company v. Smith |
| Court | Supreme Court of Indiana |
From Wells Circuit Court; Charles E. Sturgis, Judge.
Action by Josiah H. Smith against the Delphos Hoop Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p 590.
Affirmed.
W. H Eichhorn and E. C. Vaughn, for appellant.
A. L Sharpe and Ray R. Sturgis, for appellee.
This action was brought by appellee to recover for work and labor performed by him in sawing lumber, under a contract with appellant, and for board furnished by appellee to appellant's servants at the request of appellant.
A trial of said cause resulted in a verdict in favor of appellee, and over a motion for a new trial judgment was rendered against appellant.
At the close of appellee's evidence-in-chief, appellant, before introducing its evidence, moved to dismiss the action, for the reason that the evidence shows that one Bowman "is a party in interest in the cause of action and in obtaining the relief demanded, and has an interest in the subject-matter involved in plaintiff's complaint," but is not made a party to the action. This motion was overruled. Appellant thereupon moved to instruct the jury to return a verdict in its favor "on the issues formed on the complaint." This motion was overruled. These rulings are assigned as causes for new trial.
It is insisted by appellant that the court erred in overruling each of said motions, because "on the trial of said cause one Bowman, a witness for appellee, testified that he was to bear half the expenses and receive half the profits," and because "by §§ 251, 252, 263 Burns 1908, §§ 251, 252, 262 R. S. 1881, it is enacted that every action must be prosecuted in the name of the real party in interest, and that all persons having an interest in the subject-matter of the action, and in obtaining the relief demanded, shall be joined as plaintiffs." Said motions were properly overruled, for the reason, if for no other, that evidence had been given to sustain an item in the complaint for board furnished the employes of appellant at its request, to which the evidence of witness Bowman had no application, and in which there was no evidence that any one except appellee had any interest whatever. Moreover the right of appellant to question the action of the court in overruling the motion of appellant to instruct the jury to return a verdict in its favor was waived, because, after said motion was overruled by the court, appellant introduced its own evidence. In the case of Baltimore, etc., R. Co. v. Conoyer (1898), 149 Ind. 524, 527, 48 N.E. 352, the court said: "If a defendant in an action, upon the close of the plaintiff's evidence in chief, moves to direct a verdict on such evidence in his favor, he must stand by his motion; for, if he subsequently introduces his own evidence, he will be regarded as having waived or receded from his motion, and therefore no question can be considered under such motion on appeal."
It is also insisted by appellant that as "the evidence shows that the account sued on is due to appellee and another, the verdict is contrary to law," and that therefore the court erred in overruling its motion for a new trial. This contention is predicated upon § 251, supra, providing that "every action must be prosecuted in the name of the real party in interest." It is not necessary to decide whether this question is properly presented by said cause for a new trial under the issues in the case, for the reason that if it is, it does not necessarily follow that the court erred in overruling appellant's motion for a new trial. The evidence shows that the contract for sawing said lumber was entered into by appellee and appellant, and that no other person was mentioned or known as a party thereto, or as having any interest therein.
Witness Bowman testified that he was interested, in a sense, in the job appellee had...
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