Kelly v. Grand Trunk Western Ry. Co.
| Decision Date | 12 January 1911 |
| Docket Number | No. 6,882.,6,882. |
| Citation | 46 Ind.App. 697,93 N.E. 616 |
| Parties | KELLY v. GRAND TRUNK WESTERN RY. CO. et al. |
| Court | Indiana Appellate Court |
In Banc. Appeal from Circuit Court, Miami County; J. N. Tillett, Judge.
Action by Rose Kelly, administratrix, against the Grand Trunk Western Railway Company and another. Judgment for defendants, and plaintiff appeals. Affirmed.George W. Galvin, Wm. A. Reading, and Frank D. Butler, for appellant. Kretzinger & Gallagher, Rooney & Rogers, and Anderson, Parker & Crabill, for appellees.
Appellant brought this action against the Grand Trunk Western Railway Company, which we will hereafter refer to as company, and Benjamin E. Wallace to recover damages on account of the death of John F. Kelly. 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 (section 572, Burns' Ann. St. 1908). Appellees insist that the question relied on by the 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 the 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 was filed with the clerk of said court “the following interrogatories, with answers by the jury thereto in the above-entitled cause.” Then follows the title of the cause, and a copy of the interrogatories and answers. It is not disclosed by the record that the complaint or either of the answers thereto, or that either of the aforesaid proceedings, were given a docket number. It does appear that a motion for judgment was filed by said company in cause No. 6,246 (), 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 the appellant.
Our Code (Acts 1881, p. 313, § 387; Rev. St. 1881, § 544; section 570, Burns' Ann. St. 1908) provides that the verdict of a jury “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 their 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 and will not be insisted that the clerk of the court is authorized to do any act in this regard in its nature judicial. To take the place of the judge of the court and preside at the return of the verdict, receive it, and discharge the jury are judicial acts. Willett v. Porter, 42 Ind. 250.
In this case, without any showing that the issues or interrogatories were submitted to a jury, a copy of what purports to be a verdict of the jury, and 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, is not shown. The clerk made up the record as requested by the appellant. If we may infer from the fact that the præcipe directed the clerk to furnish appellant 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, 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 the 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, 125 Ind. 445, 450, 25 N. E. 551;Allen v. Gavin, 130 Ind. 190, 29 N. E. 363;Brown v. State, 140 Ind. 374, 39 N. E. 701;Greer-Wilkinson Lumber Co. v. Steen, 37 Ind. App. 595, 597, 77 N. E. 673;Evansville, etc., Ry. Co. v. Lavender, 7 Ind. App. 655, 34 N. E. 109, 847;Selvage v. Green, 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 37 railroad cars to transport his property and employés from place to place over railroads; that on August 6 and 7, 1903, John F. Kelly was in Wallace's employ; that on August 6, 1903, Wallace gave an exhibition with his said circus at Charlotte, Mich., which town was on said company's line of railway, and on that evening said property and the employés of said Wallace, including appellant's...
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