Keely v. City of Indianapolis
| Decision Date | 15 February 1912 |
| Docket Number | 7,451 |
| Citation | 97 N.E. 568,49 Ind.App. 396 |
| Parties | KEELY, GUARDIAN, v. CITY OF INDIANAPOLIS |
| Court | Indiana Appellate Court |
From Boone Circuit Court; Willett H. Parr, Judge.
Action by Alice Keely, as guardian of Frank Keely, an insane person against the City of Indianapolis. From a judgment for defendant plaintiff appeals.
On motion to dismiss appeal, see 46 Ind.App. 182.
Affirmed.
A. J Shelby, Wymond J. Beckett and Elliott & Elliott, for appellant.
Samuel M. Ralston, Frederick E. Matson, Crate D. Bowen and James D Pierce, for appellee.
OPINION
This was an action for damages for personal injuries received by Frank Keely, caused by his falling into a ditch through the alleged negligence of appellee.
An amended complaint and an answer in general denial formed the issues, which were submitted to the court for trial. The finding and judgment was in favor of appellee. On December 3, 1908, appellant's motion for a new trial was overruled, appeal prayed and granted. On November 2, 1909, the record and assignment of error was filed in this court.
The error assigned on the overruling of appellant's motion for a new trial presents for our consideration all the questions relied on for a reversal of the judgment.
From the complaint it appears that by proper judicial proceedings Frank Keely, on May 25, 1907, was declared a person of unsound mind, and incapable of managing his own estate, and on September 7, 1907, this appellant was duly appointed guardian of the person and estate of said Keely, and at once qualified as such guardian. It further appears that on the night of October 23, 1897, said Frank Keely, while walking along the sidewalk on Martindale avenue, within the corporate limits of appellee city, fell into a ditch close to said sidewalk, which appellee had carelessly and negligently left open and without any guards, protections or barriers to prevent travelers along said walk from falling into it, and whereby he was seriously and permanently injured; that said Keely brought an action against appellee to recover damages on account of his said injuries so received, and recovered a judgment, which was reversed by the Supreme Court on December 19, 1906, and a new trial ordered for error committed by the trial court (see City of Indianapolis v. Keeley [1906], 167 Ind. 516, 79 N.E. 499), that while said cause was pending for a new trial, and on February 7, 1907, said Keely entered into an agreement with appellee, whereby, in consideration of $ 1,100, said cause of action was compromised and settled, and a written dismissal of said cause signed by said Keely and delivered to appellee. It further appears that at the time of said settlement, said Frank Keely was a person of unsound mind, and incapable of making said settlement, and this was one of the facts in issue on the trial of this cause.
Appellant in this court insists that the trial court erred in holding that certain persons were competent witnesses as to matters which occurred prior to appellant's appointment as guardian, and in admitting certain evidence over appellant's objection.
The record contains all the pleadings upon which the cause was tried, the decision and judgment of the court, also a bill of exceptions containing certain portions of the evidence, namely, a transcript of the court proceedings adjudging Frank Keely a person of unsound mind, and the appointment and qualification of appellant as guardian; also the testimony of three witnesses called by the defendant, the objections made to the ruling of the court in respect to the admission of certain parts of their testimony, and exceptions taken at the time to such rulings. It is further made to appear by the certificate of the trial judge that said witnesses were not called by the court to testify in said cause, nor were they called by plaintiff, nor did the court adjudge said Frank Keely a competent witness, nor did he testify as a witness.
The first question relates to the admissibility of certain testimony given by one of the witnesses. This witness, after stating that he had had a conversation with Frank Keely at a certain grocery store during the month of June, before the trial in November, 1908, was asked: "What did he say to you, if anything?" There was an objection to this question, but no ruling of the court, and after counsel for defendant had stated that this evidence was offered as bearing on Keely's mental condition, the witness answered: "He [Keely] said Mr. Beckett wanted to see me, and he said he thought the trial was all shot to pieces." A motion to strike out this answer, for the reasons that it did not tend to prove any issue in the case, and because at the time the statement was made Keely was under guardianship as a person of unsound mind, was overruled.
We have carefully considered the testimony of this witness, and we fail to see any value in it for appellee or harm to appellant. The answer in question was the repetition of a statement made by a person then presumed to be of unsound mind, regarding the probable result of litigation to which he was a party. There was no attempt by appellee to show that Keely made the statement during a lucid interval, or at a time when he appreciated what he was saying. If Keely had a meritorious case, and from the interest manifested by his attorneys it would not be unreasonable to assume they had so advised him, and he had the impression indicated by the statement, such statement might be considered, along with other facts, in determining the condition of his mind at that time. Its weight would be for the jury or court trying the question. In view of the discretion allowed the trial court in such matters, and the presumption of correct ruling, we cannot say that the ruling now under consideration was erroneous.
The next witness stated that he was assistant attorney for appellee city, and represented appellee at the trial which resulted in a verdict for the city, and at the next trial which resulted in a judgment in favor of Keely, and between the time of the two trials Ben Aldridge and Keely came to his office, where he had a conversation with Aldridge about compromising the case. He was then asked to "state to ...
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