Kelley v. Grand Trunk Western Railway Company
| Decision Date | 12 January 1911 |
| Docket Number | 6,882 |
| Parties | KELLEY, ADMINISTRATRIX, v. GRAND TRUNK WESTERN RAILWAY COMPANY ET AL |
| Court | Indiana Appellate Court |
From Miami Circuit Court; Joseph N. Tillett, Judge.
Action by Rose Kelley, as administratrix of the estate of John F Kelley, deceased, against the Grand Trunk Western Railway Company and another. From a judgment for defendants plaintiff appeals.
Affirmed.
George W. Galvin, Frank D. Butler and William A. Reading, for appellant.
Anderson Parker & Crabill, for appellee.
Appellant brought this action against the Grand Trunk Western Railway Company (which we shall hereafter refer to as the company) and Benjamin E. Wallace to recover damages on account of the death of John F. Kelley. The complaint was in one paragraph, answered by separate denials. Appellee Wallace had the verdict of a jury in his favor, and the court rendered judgment on the verdict. The motion of appellee company for judgment in its favor upon the interrogatories and answers of the jury thereto, notwithstanding the general verdict in favor of the appellant, was sustained, and this ruling is assigned as error.
Appellant makes the point that the record does not show that the interrogatories were submitted to the jury in accordance with the provisions of the act of 1897 (Acts 1897 p. 128, § 572 Burns 1908). Appellees insist that the question relied on by appellant is not presented by the record.
The record does not show the submission of the issues to a jury, or that a verdict of a jury was returned into court, or that the interrogatories found in the record were submitted to a jury, or that the interrogatories and answers thereto were returned into court. The record does show that on December 12, 1907, "there was filed with the clerk of the Miami circuit court the verdict of the jury in the above-entitled cause." Then follows a copy of the verdict thus filed. It also appears that on the same day there were filed with the clerk of said court "the following interrogatories, with answers by the jury thereto, in the above-entitled cause." Then follow the title of the cause, and a copy of the interrogatories and answers. It is not disclosed by the record that the complaint or the answers thereto, or that either of the aforesaid proceedings was given a docket number. It does appear that a motion for judgment was filed by said company in cause No. 6,246, Rose Kelley, Administratrix, v. Grand Trunk Western Railway Company et al., which motion, upon a certain day of a certain month of a certain year, and on a certain judicial day of a term of the Miami Circuit Court, was, by the judge of that court, acted upon and sustained. A judgment was duly rendered in favor of appellees and against appellant.
Our statute (§ 570 Burns 1908, § 544 R. S. 1881) provides that the verdict "must be reduced to writing and signed by the foreman; and when returned into court the foreman shall deliver the verdict, and either party may poll the jury." This statute evidently means that the verdict shall be returned by the jury as a body into open court, and there delivered by the foreman. The doing of these things by the jury must be taken as a part of the judicial proceedings of the particular case. It is not insisted that the clerk of a court is authorized to do any act in this regard in its nature judicial. To take the place of the judge of the court, preside at the return of a verdict, receive it, and discharge the jury are judicial acts. Willett v. Porter (1873), 42 Ind. 250.
In this case, without any showing that the issues or that the interrogatories were submitted to a jury, copies of what purport to be a verdict of the jury, and the interrogatories and answers thereto, appear in the record as having been filed with the clerk of the Miami circuit court. Who filed them, or what proceedings were had in the cause, after the issues were closed, leading up to the filing with the clerk of such verdict, interrogatories and answers, are not shown. The clerk made up the record as requested by appellant. If we may infer from the fact that the precipe directed the clerk to furnish appellant with a transcript of certain designated proceedings had in a certain cause, wherein a judgment, regular on its face, is here challenged, that the other proceedings found in the transcript had reference to and were a part of the same proceedings, then we would perhaps be authorized to consider the question sought to be raised by the assignment of error, for in determining that question we look only to the complaint, answers, general verdict and answers of the jury to the interrogatories. City of Jeffersonville v. Gray (1905), 165 Ind. 26, 74 N.E. 611. So it seems that the question in this case, arising upon the merits; will be reached only through the channel of inferences, a mode of procedure we are compelled to condemn. It is now an elementary principle of law that inferences may be indulged in support of the rulings, proceedings and judgment of the trial court, but not in favor of one who attacks such action of such court. In this jurisdiction, appellate courts may search the record to affirm a judgment, but they will not reverse a judgment unless it affirmatively appears from the record that the rulings of the lower court were harmful to appellant. The burden is on the one who alleges harmful error, to present a record clearly excluding the presumption in favor of the proceedings and judgment of the trial court. Shugart v. Miles (1890), 125 Ind. 445, 450, 25 N.E. 551; Allen v. Gavin (1892), 130 Ind. 190, 29 N.E. 363; Brown v. State (1895), 140 Ind. 374, 39 N.E. 701; Greer-Wilkinson Lumber Co. v. Steen (1906), 37 Ind.App. 595, 77 N.E. 673; Evansville, etc., R. Co. v. Lavender (1893), 7 Ind.App. 655, 34 N.E. 109; Selvage v. Green (1910), 45 Ind.App. 642, 91 N.E. 357; Ewbank's Manual § 5. While the judgment in this case might, with propriety, be affirmed on the ground of uncertainty appearing upon the face of the record before us, yet we are disposed to decide it upon its merits.
The facts in this case are developed by the answers of the jury to interrogatories. From these answers, in substance, it appears that said Wallace, in the summer of 1903, was the owner of circus property, and engaged in giving circus performances, and as a part of his outfit he owned and used thirty-seven railroad cars to transport his property and employes from place to place over railroads; that on August 6 and 7, 1903, John F. Kelley was in Wallace's employ; that on August 6, 1903, Wallace gave an exhibition at Charlotte Michigan, which town was on said company's line of railway, and on that evening said property and the employes of said Wallace, including appellant's decedent, were placed in said cars to be transported over said company's railroad to La Peer, Michigan; that said show cars were divided into a train of two sections of eighteen cars each; that decedent was carried in the rear car of the first section; that near Durand, Michigan, the rear section of said train ran into the rear end of the forward section, demolishing the car in which said decedent was riding, and h...
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