Holliday & Wyon Company v. O'Donnell
| Decision Date | 07 December 1909 |
| Docket Number | 6,726 |
| Citation | 90 N.E. 24,44 Ind.App. 647 |
| Court | Indiana Appellate Court |
| Parties | HOLLIDAY & WYON COMPANY v. O'DONNELL, BY NEXT FRIEND |
From Hancock Circuit Court; Robert L. Mason, Judge.
Action by Terry O'Donnell, by his next friend, against the Holliday & Wyon Company. From a judgment on a verdict for plaintiff for $ 2,500, defendant appeals.
Reversed.
Joseph W. Hutchinson and William A. Ketcham, for appellant.
George W. Galvin, for appellee.
This was an action by appellee against appellant to recover damages for a personal injury, alleged to have been sustained by appellee, through the alleged negligence of appellant while in its service. 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 errors relied upon for reversal are the overruling of appellant's demurrer to each paragraph of the complaint and overruling its motion for a new trial.
We are first called upon to decide contentions of appellee that no question is presented by the record, for the reason that appellant's assignment 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 Superior Court of Marion County, which court ruled upon the demurrer to the complaint, and the case passed 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 further 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 demurrer to the complaint are not in the record, to the cases of Town of Williamsport v. Smith (1891), 2 Ind.App. 360, 28 N.E. 156, Evansville, etc., R. Co. v. Lavender (1893), 7 Ind.App. 655, 34 N.E. 109, and McKeen v. Porter (1893), 134 Ind. 483, 34 N.E. 223, to which might also be added Indiana, etc., R. Co. v. McBroom (1884), 98 Ind. 167, Smith v. Smith (1886), 106 Ind. 43, 5 N.E. 411, and Chicago, etc., R. Co. v. Walton (1905), 165 Ind. 642, 74 N.E. 988. These cases establish the rule that an assignment 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, 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 the case of Smith v. Smith, supra, the court say: The assignment 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, naming no particular court, but alleging that "the court below" erred, would not present for consideration any 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, 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., R. Co. v. Walton, supra.
The assignment 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: (1) The court erred in overruling defendants [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 is 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. Zeigler (1908), 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 (1907), 39 Ind.App. 636, 75 N.E. 852, and Petrie v. Ludwig (1908), 41 Ind.App. 310, 83 N.E. 770. These authorities do not sustain the point made. The objection to the instructions in the cases cited was that the judge 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 instructions properly in the record.
The first paragraph of plaintiff's complaint alleges that the defendant was engaged in the manufacture of horse furniture, and used complicated and dangerous machinery, operated by electricity; that plaintiff was a boy seventeen years of age, and was employed by defendant about its place of business as chore boy; that he was inexperienced in tbe work about any of the machinery used by defendant; 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, which was dangerous to operate, being equipped with sharp knives and run by electricity; that he had no instructions as to the method of operating the same, no knowledge of the dangers and perils attending the operation of the same, and no experience with machinery; that the defendant well knew 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, by reason of the negligence of the defendant in putting plaintiff at work, without instructions, at the dangerous machine, he was, while so engaged, caught by the knives and injured. In addition to the allegations contained in the first paragraph of complaint, the second paragraph alleges that the straw-cutter was a dust-creating machine, and that the defendant failed to provide the same with an exhaust fan to carry off the dust; that defendant knew it was a dangerous machine when operated without such fan, and that such fan could be operated without interfering with the work of the same; that while plaintiff was so engaged at work, by reason of the obscurity created by the dust, in the absence of such fan, and while he was engaged at the work of removing the straw which had clogged the machine, his hand was caught by the knives and he was injured.
It is urged against the first paragraph of the complaint: (1) That the work of operating the straw-cutter was not outside of the scope of appellee's employment; (2) that the averments of the complaint do not show that appellee was directed by appellant to do the work, the language employed in the complaint for this purpose being, "those in charge of defendant's ways, works and machinery;" (3) there are no averments of fact...
To continue reading
Request your trial