Gipe v. Pittsburgh

• Decision Date: 30 October 1907
• Docket Number: No. 5,864.,5,864.
• Citation: 41 Ind.App. 156,82 N.E. 471
• Court: Indiana Appellate Court
• Parties: GIPE v. PITTSBURGH, C., C. & ST. L. RY. CO. et al.

41 Ind.App. 156

82 N.E. 471

GIPE

v.PITTSBURGH, C., C. & ST. L. RY. CO. et al.

No. 5,864.¹

Appellate Court of Indiana.

Oct. 30, 1907.

Appeal from Circuit Court, Hamilton County; Saml. R. Artman, Special Judge.

Action by Flora J. Gipe, as administratrix, etc., against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company and another. From a judgment for defendants and from an order denying plaintiff's motion for a new trial, she appeals. Affirmed.W. J. Beckett and Elliot, Elliott & Littleton, for appellant. John L. Rupe and Shirts & Fertig, for appellees.

MYERS, J.

This action was originally commenced by appellant against appellee and the Pennsylvania Company to recover damages for the negligent killing of her decedent. On a former trial the action was dismissed as to the Pennsylvania Company, and judgment rendered against appellee. On appeal to the Supreme Court that judgment was reversed (Pittsburgh, etc., Ry. Co. v. Gipe, Adm'rs, 160 Ind. 360, 65 N. E. 1034), and the cause returned for a new trial. A substituted amended complaint, an answer in three paragraphs, the first a general denial, and a reply in two paragraphs, one in denial, to the affirmative paragraphs of answer, formed the issues. Trial by jury. On motion of appellee, and over the objections and exceptions of appellant, the court instructed the jury to return a verdict in its favor, which was accordingly done, and judgment rendered on the verdict. Appellant's motion for a new trial was overruled, and this ruling is assigned as error.

The complaint is founded upon the Employer's liability act. Section 7083, subd. 4, Burns' Ann. St. 1901; Acts 1893, p. 294, c. 130. The injury is averred to have been caused by the negligence of a person in the service of appellee who had charge of a locomotive engine upon its railway. The facts disclosed by the answers in the record on this appeal are substantially set forth in the opinion of the court on the former appeal, and the law as then declared upon all questions decided is the law of the case throughout all subsequent stages (Rosenthal v. Rambo, 165 Ind. 584, 76 N. E. 404, 3 L. R. A. (N. S.) 678;James v. Lake Erie, etc., Ry. Co., 148 Ind. 615, 48 N. E. 222;Halstead v. Sigler, 35 Ind. App. 419, 74 N. E. 257), “but the decision on the former appeal is the law of the case only in so far as the facts remain the same” (Eckert v. Blinkley, 134 Ind. 614, 33 N. E. 619, 34 N. E. 441;State ex rel. v. Christian, 18 Ind. App. 11, 47 N. E. 395;Midland Steel Co. v. Citizens' National Bank, 34 Ind. App. 107, 115, 72 N. E. 290), and the court may look to the record on a former appeal for the purpose of determining to what extent the rule applies (Westfall v. Wait, 165 Ind. 353, 359, 73 N. E. 1089).

Looking to the record on the former appeal, the reply was in three paragraphs- the first a general denial; second, no consideration for the settlement and release mentioned in the second paragraph of answer; the third was addressed to that part of the second paragraph of answer, which alleged a settlement and release of her claim as administratrix against this appellee, for the reason that there was no consideration of any nature for such release and settlement of her said claim as such administratrix. The first paragraph of reply now before us is addressed to the second and third paragraphs of answer, and seeks to avoid the release mentioned in the answers, upon the ground that it was procured from appellant by appellee through fraud and misrepresentations; that no part of said $750 was received by appellant, but was received by Flora J. Gipe as her own individual property and so used, and that the release by her as administratrix, under the facts, made appellee liaable as a party to a devastavit. On the former appeal, it was held that “the mere receipt of the money in both capacities did not per se involve a waste of the trust,” as she would be bound to account for the money received on the probate side of the court, and therefore appellee was not a party to a devastavit.

The only question in this case not decided on the former appeal is presented by the exception taken to the action of the court in giving to the jury a pre-emptory instruction to find for appellee, and by appellant assigned as a reason for a new trial. The question arises upon the evidence. It is the contention of appellant that she was induced to execute the release through the fraudulent representations of appellee, and the evidence supporting this contention should have been submitted to the judgment of the jury. The evidence most favorable to appellant in this regard is as follows: At the time the release was signed, three persons were present, namely, Mr. Eddy, representing appellee, Mrs. Gipe, the appellant, and her brother-in-law, Warren T. Gipe. In support of the reply, Mrs. Gipe testified that she was the administratrix prosecuting this action for the benefit of her children. That she first met Mr. Eddy after her husband's death at the courthouse in Indianapolis January 11, 1898. That Mr. Eddy said she would have to be appointed administratrix before she could draw her husband's wages. That she was appointed, and, in company with her brother-in-law and Mr. Eddy, went to the bank, where she was paid the wages due. That Mr. Eddy said the voucher had not come for the benefit money, and that he would notify my brother-in-law when it came. That he did notify Mr. Gipe, and he came for me and we went to Mr. Eddy's office in the Union Station at Indianapolis. “Mr. Eddy said the papers had come for the $750, and I signed my name, ‘Flora J. Gipe,’ and he said I would have to sign it as ‘Flora J. Gipe, Administratrix,’ and I asked why. He said that was a form to get my money, and I said I did not want to do anything that would injure my children, and he said what did I mean by that? I said I did not know what they would want to do in the near future on the death of their father. He said that was just a mere form to get my $750. I said the $750 was mine, as I was his widow. He said that was a form that they would have to go through to get the $750.” That she received the money and used it to pay on her property. Nothing was said about the $750 settling any claim as administratrix for the children. Practically the same conversation was related by Warren T. Gipe, and, in addition, she said to him, “‘How about that Warren?’ [referring to what she should do about signing the release.] I said: ‘I don't know anything about it.”’ Eddy said: “It was just a matter of form, and you must sign as widow and then as administratrix. Everything is all right.” There is no relation of trust or confidence in this case. The parties were dealing at arms' length. There is nothing to indicate that appellant was not a woman of at least ordinary sagacity, or that she was not fully competent to understand and take care of her interests. She knew that she must sign the release as administratrix in order to get the $750. It is not claimed that any representations made by appellee's agent prevented appellant from reading the paper signed by her, or that she was thereby prevented from being fully...