Holliday & Wyon Co. v. O'Donnell

• Decision Date: 07 December 1909
• Docket Number: No. 6,726.,6,726.
• Citation: 90 N.E. 24,44 Ind.App. 647
• Court: Indiana Appellate Court
• Parties: HOLLIDAY & WYON CO. v. O'DONNELL.

44 Ind.App. 647

90 N.E. 24

HOLLIDAY & WYON CO.

v.O'DONNELL.

No. 6,726.

Appellate Court of Indiana, Division No. 2.

Dec. 7, 1909.

Appeal from Circuit Court, Hancock County; L. R. Mason, Judge.

Action by Terry O'Donnell, by his next friend, against the Holliday & Wyon Company. Judgment for plaintiff, and defendant appeals. Reversed, with instructions.

Joseph W. Hutchison and Wm. A. Ketcham, for appellant. Geo. A. Galvin, for appellee.

RABB, P. J.

This was an action by appellee against appellant to recover damages for a personal injury, alleged to have been sustained by appellee while in appellant's service through alleged negligence of appellant. The complaint was in two paragraphs. Appellant's demurrer to each was overruled, answer of general denial filed, the cause tried by a jury, a verdict returned in favor of appellee, appellant's motion for a new trial overruled, and judgment rendered on the verdict. The error relied upon for reversal is the action of the court below in overruling appellant's demurrer to each paragraph of the complaint, and its motion for a new trial.

We are first called upon to decide a contention of appellee that no question is presented by the record, for the reason that appellant's assignment of error, challenging the ruling of the court upon the demurrer to the complaint, does not properly designate the court whose action is complained of, the case having originated in the Marion superior court, and which court ruled upon the demurrer to the complaint, and the case passing from that court to the Hancock circuit court, on change of venue, where it was tried, and from whose judgment this appeal is taken, and that the bill of exceptions upon which all other assigned errors are predicated is not in the record, because not properly authenticated by the certificate of the judge. We are cited by appellee, in support of the contention that the questions arising upon the demurrer to the complaint are not in the record, to the cases of Williamsport v. Smith, 2 Ind. App. 360, 28 N. E. 156,Evansville Ry. Co. v. Lavender, 7 Ind. App. 655, 34 N. E. 847, and McKeen v. Porter, 134 Ind. 483, 34 N. E. 223, to which might also be added Indiana, etc., v. McBroom, 98 Ind. 167,Smith v. Smith, 106 Ind. 43, 5 N. E. 411, and Chicago, etc., v. Walton, 165 Ind. 642, 74 N. E. 988. These cases establish the rule that an assignment of error in this court challenging the action of a particularly named court calls in question only the action of the court named in the assignment, and if the case in which the assignment of error is made has, in its course, passed through more than one lower court, and a mistake is made in the assignment of error, attributing the ruling complained of to one of such courts, while it was in fact made by another, the assignment will present no question. In Smith v. Smith, supra, the court say: “Appellant has assigned here as error that the court below, the Steuben circuit court, had erred in overruling a demurrer to the complaint. No such ruling is shown by the transcript of the record on file in this court. It is shown by the record that appellant's demurrer to the complaint was overruled by the Noble circuit court, wherein this action was commenced by appellee; but upon the authority of Indiana, etc., v. McBroom, supra, and cases there cited, it must be held, in the case at bar, that the ruling of the Noble circuit court on the demurrer to the complaint is not presented for our consideration.”

The assignment of errors upon which this decision was based is not set out in the opinion of the court, and the language of the opinion is somewhat ambiguous; but the case has been understood as being in harmony with the case cited, and as deciding the same question. It has not been understood as deciding that a general assignment of error naming no particular court, but using the term “the court below” erred, was not obnoxious to the objection that it would present for consideration no ruling except that of the court from which the appeal was directly taken. If it could be understood as holding that such general assignment would not challenge errors made by the ruling of any lower court, through which the case had passed, it is overruled by the case of McKeen v. Porter, supra, which holds “that a general assignment of error without specifically naming a particular court is sufficient to present any question arising upon the record, as the record itself must show the rulings, and by which court they were made,” and also by the case of Chicago, etc., v. Walton, supra. The assignment of errors in this case is in the following language: “The appellant, Holliday & Wyon Company, says there is manifest error in the judgment and proceeding in this cause in the court below in this, first, the court erred in overruling defendant's (appellant's) demurrer,” etc. This assignment is not directed to the ruling of any specific court, and “the court below” means necessarily the lower court making the particular ruling complained of. The appeal is not only from the judgment of the Hancock circuit court upon the merits of the case, but it was an appeal from the Marion superior court, and calls in review the entire proceedings in the cause.

In support of the contention that the bill of exceptions is not properly certified, appellee cites us to the recent case of Ziegler v. Ziegler, decided by this court, and reported in 41 Ind. App. 432, 84 N. E. 19. The case cited does not support appellee. In that case the judge's certificate to the bill of exceptions simply showed the presentation of the bill to the judge for examination and approval. Here the certificate shows the presentation to the judge, and the approval of the bill by the judge, within the time given by the court in which to present bills of exception.

It is further insisted that no question is presented with reference to instructions given and refused, for the reason that there is no exception taken and signed by appellant's attorneys to the giving or refusing of instructions, as the law requires, and we are cited to the cases of Inland Steel Co. v. Smith, 168 Ind. 245, 80 N. E. 538, and Petrie v. Ludwig, 41 Ind. App. 310, 83 N. E. 770. These authorities do not sustain the point made. The objection to the instruction in the cases cited was that the judge, not the attorney, had not signed the memorandum showing the action of the court in giving and refusing instructions, as required by the statute. The transcript here shows the instruction properly in the record.

The first paragraph of plaintiff's complaint alleges: That the appellant was engaged in the manufacture of horse furniture, and used complicated and dangerous machinery, operated by electricity; that appellee was a boy 17 years of age, and was employed by appellant about their place of business as chore boy; that he was inexperienced in the work about any of the machinery used by appellant; that he was negligently taken from his work and “directed by those in charge of defendant's ways, works, and machinery to take charge of and operate the straw cutter, dangerous in its operation, being equipped with sharp knives, and run by electricity; that he had no instructions as to the operating of the same, and no knowledge of the dangers and perils attending the operation of the same, and no experience with machinery, the defendant well knowing of the ignorance and inexperience of the plaintiff, and of the perils attending the operation of the machine, and the peril it was placing him in”; that appellee was, by reason of the negligence of the defendant in putting him at work, without instructions, at the dangerous machine, while so engaged, caught by the knives and injured. In addition to the allegations contained in the first paragraph of complaint, the second paragraph charges: That the straw cutter was a dust-creating machine; that the appellant...