Indiana Union Traction Co. v. Maher
| Decision Date | 04 October 1911 |
| Docket Number | No. 21,888.,21,888. |
| Citation | 95 N.E. 1012,176 Ind. 289 |
| Parties | INDIANA UNION TRACTION CO. v. MAHER. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Howard County; James F. Elliott, Judge.
Action by Alice Maher, by her next friend, against the Indiana Union Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed.James A. Van Osdol, Kittinger & Diven, and Blacklidge, Wolf & Barnes, for appellant. Overson & Manning and Kirkpatrick & Morrison, for appellee.
This cause was transferred from the Appellate Court, under section 1405, Burns 1908, and is an action by appellee for personal injuries. The alleged errors presented are in overruling appellant's demurrer to the second paragraph of reply, and in overruling the motion for a new trial.
The complaint charges negligence of appellant, on September 3, 1906, in permitting a car to collide from the rear with a car upon which appellee was a passenger, alleging that she was at the time 17 years of age. There was an answer in general denial, and a special paragraph, alleging settlement by written agreement, and payment by check for $15, on September 11, 1906, the agreement being signed by appellee, and her father and mother, to which she replied by general denial; and by a second paragraph, that appellee was, on September 11, 1906, and was at the time of filing her complaint, and is now, a minor, and under the age of 21 years; that on the - day of January, 1907, she tendered appellant said check and order enumerated in defendant's second paragraph of answer; that she did not receive any money or thing of value by reason of the execution of the said check and order, and did not indorse the said check or order, and that the said tender was made prior to the filing of her complaint, and that plaintiff has ever since held the said check and order for the said defendant, and subject to the control of the defendant, and hereby tenders and brings the said check and order into court for the defendant. The question is that of disaffirmance by a minor.
[1] The case nearest in point is St. Louis, etc., Co. v. Higgins, 44 Ark. 293, where it was held that a reply of minority, to avoid an answer of settlement and payment for personal injuries, where the money had been retained, was sufficient, and that the bringing of the suit was an unequivocal disaffirmance, and this will be found to have been held in a number of cases cited in the note to Craig v. Van Bebber (100 Mo. 584, 13 S. W. 906)18 Am. St. Rep. 569, note at page 667, to which we add Englebert v. Troxell, 40 Neb. 195, 58 N. W. 852, 26 L. R. A. 177, 42 Am. St. Rep. 665, and cases cited. In Clawson v. Doe, 5 Blackf. 300,Doe v. Abernathy, 7 Blackf. 442, and Law v. Long, 41 Ind. 586, it was held that at common law the commencement of an action was not a disaffirmance, referring to executed contracts, and that there must be notice, or some affirmative act evincing an intention to disaffirm. These cases grew out of actions in respect to real estate, or some interest therein, when the law was that one out of possession could not convey, and the cases cited in the note above referred to support the doctrine that the tender in this case, coupled with the suit, is a sufficient disaffirmance. Page on Contracts, § 886, states the modern rule to be “that no set form of disaffirmance is necessary, but that the infant's intention to disaffirm, together with any conduct on his part which makes this intention clear, constitutes a sufficient disaffirmance.” So, to an answer of settlement and “payment by check,” it is sufficient to reply minority, and the nonpresentment and nonpayment and tender of the check, coupled with a suit brought, to constitute a disaffirmance.
[2] By the third instruction, the jury were informed that, The objection urged to this instruction is that, by the use of the words “either of which is sufficient to base a recovery upon,” the court invaded the province of the jury, and instructed them that the charges made against appellant constituted negligence, when the question of what constituted negligence is for the jury. Also that the words “which is sufficiently supported by the evidence” informed the jury that, if the facts are as recited in the complaint, negligence is proven, and that the remainder of the instruction invaded the province of the jury, in telling them that the facts recited in the complaint constituted negligence, and relieved them from determining that question.
The negligence charged in the complaint is that defendant wholly failed and neglected to provide sufficient car service for the safe and comfortable transportation of its traffic and passengers, and carelessly and negligently ran its overcrowded cars in such proximity to each other as to be dangerous to its passengers. That, by reason of the mechanism becoming out of order on the car upon which appellee was a passenger, the car was stopped near the north end of a sharp curve, which was cut through an embankment 30 feet deep, and on a downgrade to the north. The plaintiff and the passengers upon the car were not informed of the nature, or extent of the injury to the car, or the reason of its becoming stationary. That plaintiff and the passengers were not requested by the agents and employés of defendant then in charge of the car to leave the same, and that plaintiff and the other passengers in the car remained seated thereinduring the time when the car remained stationary, until the collision occurred. That the car while so stopped was being followed by a heavy, rapidly moving car, and that defendant and its agents...
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