Indiana Union Traction Co. v. Scribner

• Decision Date: 17 February 1911
• Docket Number: No. 6,781.,6,781.
• Citation: 93 N.E. 1014,47 Ind.App. 621
• Parties: INDIANA UNION TRACTION CO. v. SCRIBNER.
• Court: Indiana Appellate Court

47 Ind.App. 621

93 N.E. 1014

INDIANA UNION TRACTION CO.

v.SCRIBNER.

No. 6,781.¹

Appellate Court of Indiana, Division No. 1.

Feb. 17, 1911.

Appeal from Circuit Court, Hamilton County; Ira Christian, Judge.

Action by Nelson F. Scribner, administrator of the estate of Lora H. Whitson, deceased, against the Indiana Union Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed.James A. Van Osdol, C. C. Shirley, and Kane & Kane, for appellant. S. A. Hays and Shirts & Fertig, for appellee.

FELT, J.

Suit by Nelson F. Scribner, administrator of the estate of Lora H. Whitson, deceased, against the appellant, Indiana Union Traction Company, for damages for alleged negligence of appellant. The suit was originally filed in Marion county, and upon change of venue was sent to Hancock county, and from there was venued to the Hamilton circuit court, where upon issues formed by a general denial to the complaint, after trial and verdict by jury, judgment was rendered for the appellee in the sum of $5,000, from which this appeal is prayed. The errors assigned are: (1) The complaint does not state facts sufficient to constitute a cause of action; (2) error of the Marion circuit court in overruling the demurrer to the complaint; (3) error of the Hamilton circuit court in overruling appellant's motion for judgment on the answers to the interrogatories notwithstanding the general verdict; and (4) error in overruling appellant's motion for a new trial.

The first and second assignments of error are not discussed by appellant's counsel in their brief, and are therefore waived.

The record discloses that on the 7th day of August, 1905, the appellee's decedent and other excursionists from the city of Indianapolis took passage over the electric railway line of appellant to Broad Ripple, Ind.; that appellee asserts the appellant owned and controlled a certain boat, Sunshine, which it operated on White river as an inducement to excursionists, and on said date undertook to carry the decedent and about 175 other persons on said boat from Broad Ripple up White river, a distance of about three miles, and return; that the decedent paid his passage thereon, and while a passenger upon said boat the same became disabled and sank in the water, resulting in his death by drowning. It was alleged that the boat was old, rotten, unsafe, and incapable of carrying the number of passengers taken aboard on the fatal trip; that the same was negligently and carelessly managed by the servants and employés of appellee and became uncontrollable; that the hull of the boat became filled with water, and the deck was broken off and the decedent thereby thrown into the water; that decedent was about 29 years of age, in good health, earning from $800 to $1,000 a year, and left surviving him a widow and two children, 6 and 8 years of age respectively, who were dependent upon him. The appellee denied ownership or control of the vessel and sought to show that the accident was due to the conduct of the passengers in rushing to the side of the upper deck, causing the vessel to tip to one side by reason of which a chain was displaced upon the sprocket wheel, leaving the boat without motive power, and causing it to capsize.

The appellant has not set out the answers to the interrogatories in its brief, but the appellee has supplied the omission. The motion for a new trial alleges that the verdict is not sustained by the evidence, is contrary to law, and that the damages assessed are excessive. Other alleged errors are based upon the admission and exclusion of evidence, the giving of certain instructions and the refusal to give instructions requested by appellant. The appellant insists that the answers to the interrogatories show a failure of proof to establish that the appellant either owned or operated the boat at the time of the accident.

The answers to the interrogatories state, in substance, that there was no direct evidence that the board of directors of appellant authorized the purchase or operation of the boat. They show, however, that appellant's board of directors authorized the purchase of the boat by its general superintendent of transportation, one Mr. Baldwin, and afterwards rebuilt it and transferred its employés from service upon its cars on the Broad Ripple line to service upon the boat, and continued them upon the pay roll of the company without re-employment or change of contract; that at the time of the accident employés of appellant were in charge of said boat as follows: Mr. Crockett, as engineer and captain, Mr. Metsker, as pilot, Mr. Davis, as purser, and Mr. McMahan, as local superintendent of transportation; that the other men were employed by Mr. McMahan with the approval of Mr. Baldwin, appellant's general superintendent of transportation; that there was no direct testimony that the directors knew that its employés and officers were engaged in operating said boat at the time of the accident, but that they did have notice that such was the case through the company's official, Mr. Baldwin; that all the money earned by the operation of the boat both before and on the day of the accident, and the money earned by the operation of appellant's cars on the Broad Ripple line, was by its employé placed in the same bag and deposited together in the bank to the credit of appellant; that the directors of appellant in the spring of 1905, and thereafter to the time of the accident, knew that its employés were operating said boat, and both before and at the time of said accident the persons so operating said boat represented to the public that they were operating the same on behalf of the appellant, and such representations were also made by the employés and officers of appellant operating cars on it.s line passing through Broad Ripple; that at the time of the accident Mr. Baldwin, the general superintendent of transportation, knew that the boat upon which appellee's decedent took passage was being operated for and on behalf of appellant by its employés aforesaid. The evidence further shows that the employés on said boat were paid by appellant and that the captain of the boat wore the uniform of appellant.

Answers to interrogatories and the general verdict must be in irreconcilable conflict before the former will control the latter. Courts indulge every reasonable presumption in favor of the general verdict, and nothing is presumed in favor of the special finding by interrogatories. The antagonism between the general verdict and interrogatories must be apparent upon the face of the record beyond the possibility of its removal by any evidence legitimately admissible under the issues. However, if the answers to the interrogatories exclude every conclusion that will authorize a recovery by the party in whose favor the general verdict is rendered, then judgment should not be rendered upon the general verdict but upon the answers to the interrogatories.

Applying the well-established rules above stated to the facts shown by the answers to the interrogatories, we think it a reasonable presumption, fully warranted by the facts shown by the answers to the interrogatories, that the directors and officers of appellant had such knowledge and information about the operation of the boat in question by its employés before and at the time of the accident as to at least amount to a ratification of their acts in so doing. Flynn et al. v. Des Moines & St. L. Ry. Co., 63 Iowa, 490, 19 N. W. 312-316;Kneeland v. Gilman, 24 Wis. 39;Bennett v. Millville Imp. Co., 67 N. J. Law, 320, 51 Atl. 706.

The finding that there was no direct evidence showing that appellant owned the boat or that its board of directors authorized its purchase or operation, is by no means the equivalent of saying that there is no legitimate evidence from which both ownership and control may have been rightfully found by the jury. The jury having some evidence of the purchase of the boat by the general superintendent of transportation of appellant, that it was rebuilt, operated and controlled by employés of appellant, and that the earnings of the boat and for some time before the accident were received and retained by appellant, had the right to draw from such facts, which the evidence tended to prove, any inference or conclusion that might reasonably be drawn therefrom. It is affirmatively shown that the money earned from the operation of the boat before and at the time of the accident was received and retained by appellant.

Officers of a corporation are presumed to do their duty and to be acquainted with the business of their company, and in the light of this presumption the jury was fully warranted in concluding that they knew the source of the revenue received by appellant. If they knew the source of the money, and retained it, this would certainly amount to a ratification of the means employed to procure it, and is in the nature of an estoppel, operating against the company when it seeks to repudiate the authority by which the boat was controlled and operated in its behalf. 2 Thompson on Corporations (2d Ed.) §§ 1960-1994; Railway Co. v. Keokuk & H. B. Co., 131 U. S. 371-385, 9 Sup. Ct. 770, 33 L. Ed. 157;Fidelity Trust Co. v. Gas Co., 118 Ky. 588, 81 S. W. 927, 111 Am. St. Rep. 302, 325, notes and cases cited. It has been held in such situation that a ratification may be shown by conduct, and that no formal vote or resolution by the board of directors is necessary to that end; that such conduct may consist either in affirmation or in a failure to act, that is, in passive acquiescence; that it may be the conduct either of a managing agent having authority, or of the board of directors, and that when a ratification has thus taken place it is equivalent to antecedent authority and estops the corporation from subsequently disavowing the act so ratified. Thompson on Corporations, vol. 2 (2d Ed.) § 2015, and authorities cited. Everett et al. v. U. S., 6 Port. (Ala.) 166, 30...