Inland Steel Co. v. Harris
| Decision Date | 02 June 1911 |
| Docket Number | 7,127 |
| Citation | 95 N.E. 271,49 Ind.App. 157 |
| Parties | INLAND STEEL COMPANY v. HARRIS |
| Court | Indiana Appellate Court |
Rehearing denied December 20, 1911.
From Laporte Superior Court; H. B. Tuthill, Judge.
Action by Oliver Harris against the Inland Steel Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Grant Crumpacker and McAleer & McAleer, for appellant.
Bomberger Sawyer & Curtis and Henry Bowers, for appellee.
Suit by appellee against appellant for damages for breach of a contract of employment. The case was brought, originally, in the Lake Superior Court and on change of venue was taken to the Porter Superior Court, where the case was tried and verdict returned in favor of appellee for $ 3,600. On motion of appellant, a new trial was granted and the venue was changed to the Laporte Superior Court, where the case was again tried, and a verdict rendered in favor of appellee in the sum of $ 5,000, upon which the judgment was rendered from which this appeal is taken.
The errors assigned are the overruling of appellant's demurrer to the substituted amended complaint, and the overruling of the motion for a new trial.
The motion for a new trial alleges that the verdict of the jury is contrary to law and is not sustained by sufficient evidence; that the damages are excessive; that the court erred in giving to the jury, of its own motion, instructions one to twenty-seven inclusive, and in refusing to give to the jury each of thirty-seven instructions tendered by appellant.
Paragraph six of appellant's assignment of errors questions the action of the trial court in admitting certain testimony; but error in the admission or exclusion of evidence cannot be presented for the first time by assignment of errors, but must be alleged as cause for a new trial, and the questions so presented to the lower court become available on appeal by assigning the error in overruling the motion for a new trial. Appellant's failure to question the admission of testimony in the motion for a new trial waives the error, if any, on that account, and no question is presented by the direct assignment of error thereon.
Storer v. Markley (1905), 164 Ind. 535, 73 N.E. 1081; Nordyke & Marmon Co. v. Keokuk Bag Co. (1901), 26 Ind.App. 548, 59 N.E. 393.
In the motion for a new trial appellant has also assigned as reasons, that the answers to the interrogatories are contrary to law and not sustained by sufficient evidence. Questions relating to the answers to interrogatories by the jury are not properly a part of the motion for a new trial. If the answers were in conflict with the general verdict, appellant should have moved for judgment on the answers to the interrogatories non obstante veredicto, and if his motion was overruled, he could then have presented the question to this court by independent assignment of error.
Elliott, App. Proc. § 847; Louisville, etc., R. Co. v. Kane (1889), 120 Ind. 140, 22 N.E. 80; North-Western, etc., Ins. Co. v. Blankenship (1884), 94 Ind. 535, 548, 48 Am. Rep. 185.
Appellee insists that appellant's brief fails to comply with the rules of this court, and that no question relating to the evidence is presented. It is apparent that the rules prescribed for the preparation of briefs have not been strictly followed by appellant; but appellee has set out a portion of the evidence in his brief and this, considered with that set out by appellant, is sufficient to enable the court to pass upon the only question relating to the evidence which is before it, viz., Is there any evidence tending to support the finding upon the material propositions in issue?
Low v. Dallas (1905), 165 Ind. 392, 75 N.E. 822; Howard v. Adkins (1906), 167 Ind. 184, 78 N.E. 665; Funk v. State, ex rel. (1906), 166 Ind. 455, 77 N.E. 854; Roberts v. Fort Wayne Gas Co. (1907), 40 Ind.App. 528, 82 N.E. 558; Tipton Light, etc., Co. v. Dean (1905), 164 Ind. 533, 73 N.E. 1082.
The substituted amended complaint alleges in substance that on April 21, 1905, appellant and appellee entered into a written agreement, by which appellee was employed to work in appellant's factory as a roller for three years, with a guarantee of $ 3,600 as wages for the first year, and a further condition that he was to have the benefit of amounts earned in excess of the guaranteed salary, based "on the January 1 scale of the American Sheet Steel Company's" schedule, and agreeing to be bound by such scale during the term of the contract. Payments were to be made semi-monthly, and appellee was to render "good and efficient service on the class of work rolled;" that defendant should "furnish competent men to work on the mill, and a complete crew, so far as possible;" that appellee began work under this contract on May 5, 1905, and continued until May 15, and on that day presented himself at the mill and sought to continue his work, and was ready and willing to continue the fulfillment of his part of said agreement, but appellant refused to allow him to continue his work and run the mill, according to their agreement, and notified him that he could not thereafter continue so to do; that appellant has since that time refused to permit appellee to fulfill his contract, and has operated the mill with other men; that appellee gave up a similar employment at Canal Dover, Ohio, to accept this employment; that he has diligently sought, but has been unable to obtain, employment as a roller, or to earn any money; that he has at all times been ready and willing to perform his part of said contract, and has performed it, except as prevented by appellant; that by the terms of said contract he could and would have earned an average of $ 15 a day; that he has been damaged in the sum of $ 15 a day, and demands judgment for $ 10,000.
The complaint is clearly good as against the demurrer. It shows an employment contract, the part-performance thereof, and a willingness to continue under the contract, and a breach thereof by appellant in refusing to permit appellee to continue the service which he contracted to render, resulting in damages to appellee.
Hamilton v. Love (1899), 152 Ind. 641, 71 Am. St. 384, 53 N.E. 181; Pennsylvania Co. v. Dolan (1893), 6 Ind.App. 109, 51 Am. St. 289, 32 N.E. 802.
Upon the trial it was conceded by appellant that it refused to permit appellee to continue his work on the job for which he was hired and to which he was assigned, and upon which he worked until stopped by appellant; but appellant contends that it is not liable, for it offered him other employment of substantially the same kind, and he refused to accept it. Appellant by special answers and by evidence sought to show that appellee was incompetent, and that he failed to comply with his agreement to furnish "competent men to work on the mill, and a complete crew, so far as possible." The court submitted to the jury, by interrogatories, the question whether appellee was offered employment of substantially the same kind by appellant, and the jury found against appellant upon the proposition. The jury also found that appellee was wrongfully discharged; that he was competent, and rendered good and efficient services; that by the use of reasonable diligence he could not obtain substantially the same character of work elsewhere; that he had unsuccessfully applied for work at nine different mills, after his discharge by appellant.
These were important questions of fact, and there was evidence tending to support the finding of the jury, both as to its answers to interrogatories and the general verdict. Where there is legal evidence tending to support the finding of the jury, upon all material questions in issue, this court will not weigh the evidence or reverse the judgment on the weight of the testimony, unless it is of such a character that to believe it would involve an absurd or unreasonable conclusion.
Bower v. Bowen (1894), 139 Ind. 31, 36, 38 N.E. 326; Center Tp. v. Davis (1900), 24 Ind.App. 603, 57 N.E. 283.
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