Grand Trunk Western Railway Company v. Thrift Trust Company
| Decision Date | 06 April 1917 |
| Docket Number | 9,259 |
| Parties | GRAND TRUNK WESTERN RAILWAY COMPANY v. THRIFT TRUST COMPANY, ADMINISTRATOR |
| Court | Indiana Appellate Court |
Rehearing denied June 29, 1917, Reported at: 68 Ind.App. 198 at 218. Transfer denied June 22, 1918.
From Porter Circuit Court; A. D. Bartholomew, Judge.
Action by the Thrift Trust Company, administrator of the estate of Gustav Fritz, deceased, against the Grand Trunk Western Railway Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Crumpacker Bros., for appellant.
Daly & Freund, for appellee.
The facts which gave rise to the litigation resulting in this appeal are in substance as follows:
On October 29, 1912, Gustav Fritz was in the employ of appellant railway company, and while so employed received injuries which resulted in his death. He left surviving him as heirs and next of kin a widow and four children. The Thrift Trust Company was appointed administrator of the estate of said decedent, and as such filed a complaint in the trial court in two paragraphs, in each of which it alleges that decedent's death was caused by appellant's negligence as therein specifically charged, and that on account thereof said widow and children had been damaged. A trial resulted in a verdict and judgment for appellee. From this judgment appellant appeals.
The questions which by its appeal it seeks to have reviewed in this court, stated in its own language, are as follows "Appellant has assigned eight errors in this court but is only urging a reversal of the cause on account of the overruling of appellant's motion for judgment on the interrogatories and the answers * * * thereto, * * * and the overruling of appellant's motion for a new trial," which
By most of said rulings the appellant seeks, by different methods, to present substantially the same question. We therefore go directly to a consideration and disposition of this question.
It is insisted by appellant, in effect, that each of the paragraphs of the complaint proceed upon the theory that a cause of action existed and is stated therein under the state law; that appellee and the court adopted this theory and pursued it to the end of the trial embodying it in the instructions given in the case; that the uncontradicted evidence disclosed that appellee's decedent when injured was engaged in interstate commerce; that for this reason the case was controlled by the federal Employers' Liability Act of April 28, 1908; that such act supersedes state laws upon the same subject and is exclusive within the scope of its operations. Upon the case assumed it is argued in effect that the cause of action stated in the complaint is not sustained by the evidence; that the decision is contrary to law; and that, in any event, the court erred in giving instructions that applied the state law to the facts proved, and in refusing to give instructions which applied the federal act, supra.
The averments common to each of the paragraphs of the complaint, pertinent to the question involved, are in substance as follows: Appellant on and previously to October 29, 1912, owned, operated and controlled a railroad and railroad right of way extending from South Bend, Indiana, through Porter county, and the city of Valparaiso, Indiana, to Chicago, Illinois. The part of the road extending through Valparaiso, east of Locust street therein, consisted of two main tracks and several side tracks with branches and connections. On October 29, 1912, decedent, Gustav Fritz, was in appellant's employ as a section hand or extra, under the direction of Paul Weimuth, who was in appellant's employ as foreman engaged in repairing of defendant's railroad tracks between the cities of Valparaiso and Chicago, Illinois, and decedent did such work and at such places as directed by Weimuth. Weimuth, as such foreman, had authority to employ men needed to keep appellant's tracks in repair in Valparaiso and vicinity and elsewhere, and to direct the men so employed what to do and how to do it, and to discharge them. The duties of decedent under his said employment required him to go where and perform such labors as directed by Weimuth in the repairing of appellant's tracks in Valparaiso and elsewhere and to do such work as might be required of him in connection therewith. On October 29, decedent was engaged, under said foreman, in repairing the north passing track of defendant's railway. At said time two of appellant's flat cars had been placed on its side track next to and south of the toolhouse to receive supplies and appellant's section hands to be taken elsewhere on said cars to repair appellant's tracks. At said time the engine had been detached from said cars. Decedent was then directed by said foreman to board said flat car, and, in obedience to such direction, took a position standing on the rear end of the east flat car and near the west flat car. In approaching the flat car from the west, to board it, the view of the tracks to the west was obstructed by the appellant's toolhouse. While decedent was standing on the flat car, in exercise of due caution and diligence, appellant negligently ran a locomotive from the west on said track, at a high rate of speed, to wit, fifteen miles an hour, without ringing any bell or blowing any whistle, and struck the west flat car with great force, pushing said flat car suddenly and forcibly eastward from under decedent's feet, throwing him backward between the two flat cars, and the east trucks of the west flat car passed over his body, killing him immediately. Decedent was killed by the negligence of appellant's servants and employes in running said locomotive engine against said flat cars with great force and at a high rate of speed with the brakes and other appliances to control its speed out of repair and not in efficient working condition and without any warning to decedent.
The first paragraph contains additional averments to the effect that appellant at the time in question had in force certain rules and regulations regulating the coupling of cars which were alleged to have been violated and also alleges the existence of an ordinance in force in the city of Valparaiso limiting the speed of trains operated therein to ten miles an hour.
Each of said paragraphs was challenged in the trial court by a demurrer for want of facts, accompanied by a memorandum, the same as to each paragraph, and containing the following grounds:
The rulings on said demurrer are not here challenged, but, on the contrary, the effect of appellant's contention in this court is to concede that each of said paragraphs is sufficient under the state law, but insufficient under the federal act, supra, because of the absence of an averment that appellant was engaged in interstate commerce, and that decedent, when injured, was engaged in such commerce, or in work connected therewith. This position is, in a sense, forced. We say this because appellant failed to include in his memorandum accompanying said demurrer any grounds of objection suggesting the omission of said averment that decedent, when injured, was engaged in interstate commerce, and hence, unless it can be said that each of said paragraphs proceed upon some theory other than a liability under said federal act, appellant, under the present demurrer law, § 344 Burns 1914, Acts 1911 p. 415, would not now be heard to complain of the sufficiency of such complaint because of its failure to allege said fact.
Whether however, in view of the requirements of said § 344, supra, appellant, in order to obtain the benefits of the question he is now seeking to raise, should have included in the memorandum accompanying his said demurrers said objection, presents a more serious question. It would, of course, be unreasonable to say that it was intended by said section to require a demurring party to point out every objection, to the pleading demurred to, which might be valid under any supposable theory upon which a pleading might be predicated. By his failure to demur a party thereby waives only those averments necessary to make the pleading involved sufficient on the theory upon which such pleading is predicated, and in his memorandum accompanying his demurrer the demurring party need only point out the infirmities or omissions necessary to make the pleading sufficient on the theory upon which it is predicated, and a failure to point out in such memorandum any infirmity or omission in such pleading necessary to its sufficiency against demurrer on the theory upon which it proceeds operates as a waiver of such infirmity or omission, but such statute imposes no duty upon the demurring party to suggest omissions or averments which...
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