Indiana Union Traction Co. v. Maher
| Decision Date | 04 October 1911 |
| Docket Number | 21,888 |
| Citation | 95 N.E. 1012,176 Ind. 289 |
| Parties | Indiana Union Traction Company v. Maher, by Next Friend |
| Court | Indiana Supreme Court |
From Howard Circuit Court; James F. Elliott, Judge.
Action by Alice Maher, by her next friend, against the Indiana Union Traction Company. From a judgment on a verdict for plaintiff for $ 550, defendant appeals. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.
Affirmed.
J. 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 § 1405 Burns 1908, Acts 1901 p. 590, and is an action by appellee for personal injuries. The alleged errors are the overruling of appellant's demurrer to the second paragraph of reply and the overruling of the motion for a new trial.
The complaint alleges that on September 3, 1906, appellant negligently permitted a car to collide from the rear with a car upon which appellee, who was seventeen years old, was a passenger. There was an answer in general denial, and a special paragraph alleging settlement by written agreement, signed by appellee, and her father and mother, and payment of $ 15 on September 11, 1906. Appellee replied by general denial, and by a second paragraph alleging that on September 11, 1906, and at the time of filing her complaint, she was and that she is now under the age of twenty-one years; that on January --, 1907, she tendered appellant said check 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 said check, and did not indorse said check; that said tender was made prior to the filing of her complaint, and that appellee has ever since held said check for said appellant and subject to its control, and hereby brings said check into court for appellant. The question is that of disaffirmance by a minor.
The case nearest in point is St. Louis, etc., R. Co. v. Higgins (1884), 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 (1890), 18 Am. St. 569, 667, to which we add the case of Englebert v. Troxell (1894), 40 Neb. 195, 58 N.W. 852, 26 L. R. A. 177, 42 Am. St. 665, and cases cited.
In the cases of Clawson v. Doe (1840), 5 Blackf. 300, Doe v. Abernathy (1845), 7 Blackf. 442, and Law v. Long (1873), 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 just referred to support the doctrine that the tender in this case, coupled with the suit, is a sufficient disaffirmance.
In 2 Page, Contracts § 886, the modern rule is stated 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 constitute disaffirmance, to reply minority, and the nonpresentment and nonpayment, and tender of the check, coupled with a suit brought.
By the third instruction the jury was 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 it that the charges made against appellant constituted negligence, when the question of what constituted negligence is for the jury. It is also urged 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 proved, and that the remainder of the instruction invaded the province of the jury in telling it that the facts recited in the complaint constituted negligence, and relieved it 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, because the mechanism became out of order on the car on which appellee was a passenger, the car was stopped near the north end of a sharp curve, which was cut through an embankment thirty feet deep and on a down-grade to the north; that plaintiff and the passengers on the car were not informed of the nature or extent of the injury to the car, or why it became stationary; that plaintiff and the passengers were not requested by the agents and employes of defendant then in charge of the car to leave it, and that plaintiff and the other passengers in the car remained seated therein during the time the car remained stationary, and 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 carelessly and negligently failed and refused to give proper warning, or set any signal, in order that a car approaching from the south might be apprised of the presence upon defendant's track of said stationary car, and left the car wholly unguarded from collision by approaching cars, whereby, without warning to plaintiff, or the passengers on the stationary car, and without slackening or checking speed, the following car, running at a high and dangerous rate of speed, collided with the car on which plaintiff was carried, by reason of which she was thrown to the floor and injured; that the injuries were caused by the carelessness, recklessness and negligence of defendant in running its said cars...
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