Malott v. Cent. Trust Co. of Greencastle

• Decision Date: 27 November 1906
• Docket Number: No. 20,866.,20,866.
• Parties: MALOTT v. CENTRAL TRUST CO. OF GREENCASTLE.
• Court: Indiana Supreme Court

168 Ind. 428

79 N.E. 369

MALOTT

v.CENTRAL TRUST CO. OF GREENCASTLE.

No. 20,866.¹

Supreme Court of Indiana.

Nov. 27, 1906.

Appeal from Circuit Court, Hendricks County; Thos. J. Cofer, Judge.

Action by the Central Trust Company of Greencastle, administrator of Fred H. Hermsen, deceased, against Volney T. Malott, receiver of the Terre Haute & Indianapolis Railroad Company, for the death of decedent.

Decedent at the time of his death was 32 years of age and left a widow and children. From a judgment for plaintiff for $9,500, defendant appeals. Affirmed.J. H. James, Jas. L. Clark and D. P. Williams, for appellant. S. A. Hays and S. M. McGregor, for appellee.

MONKS, J.

This action was brought to recover damages for the death of Fred H. Hermsen alleged to have been caused by the negligence of appellant. A trial of said cause resulted in a verdict and judgment in favor of appellee.

The only error assigned and not waived is that “the court erred in overruling appellant's motion for a new trial.” The determination of the question presented by said assignment of error depends upon matters which counsel for appellee insist are not in the record for the reason that the bills of exceptions were not filed in the clerk's office or in open court within the 90 days allowed by the court for that purpose. It appears from the record proper that final judgment was rendered on June 25, 1904, at which time 90 days were given appellant within which to file bills of exceptions, and that the bills of exceptions were filed on September 24, 1904. Counsel for appellant contend, however, that the bills of exceptions show that final judgment was rendered on June 30, 1904, at which time 90 days were given appellant to file bills of exceptions and that there being a conflict between the record proper and the bills of exceptions as to the date of final judgment the bills of exceptions control. The contention of the appellant is true only to a limited extent, for the reason that only as to such matters as may be properly shown by a bill of exceptions will it control. Thus the recital in a bill of exceptions of the day when it was presented to, or signed by, the judge must be taken as correct, but the general statement therein that the same was presented to the judge within the time allowed will be disregarded. Ewbank's Manual, §§ 24, 25, and 36, p. 47; 3 Works Prac. & Pleading (4th Ed.) 506, 507, notes; Wood v. Ohio, etc., Co., 136 Ind. 598, 601, 36 N. E. 282. Whatever is a part of the record proper without a bill of exceptions cannot be made a part of the record by a bill of exceptions, and, if there is any conflict between the two as to such matters, the record proper will control. Wilson v. State, 156 Ind. 631, 635, 636, 59 N. E. 380, 60 N. E. 1086, and authorities cited; Harris v. State, 155 Ind. 15, 56 N. E. 916;Cooney v. American Ins. Co., 161 Ind. 193, 194, 195, 67 N. E. 989, and cases cited; Ewbank's Manual, § 25; 3 Ency. Pl. & Pr. 404-406.

That leave was given during the term to file a bill of exceptions after the close of the term must be shown by an order book entry, and that the bill of exceptions was filed in the clerk's office and the date of filing cannot be shown by recitals in the bill. Ewbank's Manual, p. 38, §§ 30, 31; 3 Works Pr. & Pl. (4th Ed.) 518, 519, notes; Gray v. Singer, 137 Ind. 257, 36 N. E. 209, 1109;Hancher v. Stephenson, 147 Ind. 498, 46 N. E. 916;Schoonover v. Reed, 65 Ind. 313;Board, etc., v. Huffman, 134 Ind. 1, 31 N. E. 570;Drake v. State, 145 Ind. 210, 217, 41 N. E. 799, 44 N. E. 188;Miller v. Evansville, etc., Ry. Co., 143 Ind. 570, 41 N. E. 801, 42 N. E. 806;Prather v. Prather, 139 Ind. 570, 39 N. E. 310.

Final judgment, the date when rendered, motions for a new trial, and in arrest of judgment, and the rulings thereon, and the exceptions thereto, are a part of the record without a bill of exceptions, and cannot be brought into the record by a bill of exceptions. Wilson v. State, 156 Ind. 631, 635, 636, 59 N. E. 380, 60 N. E. 1086, and authorities cited; Harris v. State, 155 Ind. 15, 56 N. E. 916;Wurfel v. State, (Ind. Sup.) 78 N. E. 635; 3 Ency. Pl. & Pr., 604-606. It is evident that under the authorities cited final judgments, motions for a new trial, and in arrest of judgment, and the exceptions thereto and the dates thereof, and all other matters which are a part of the record without a bill of exceptions can only be shown by being copied into the transcript and duly certified by the clerk as a part of the record proper without a bill of exceptions. It follows that, to determine the date when final judgment was rendered and time given within which to file bills of exceptions, we must look to the record proper, which must control, and not to the bills of exceptions. This date as we have shown was June 25, 1904.

The record proper discloses that the bills of exceptions were filed on September 24, 1904, one day after the termination of the 90 days allowed, but the bills of exceptions show by recitals therein that they were presented to the judge for his signature, one on September 22d, and two on September 23d, and that each was signed on the day presented, which was within the 90 days allowed by the court. It has been uniformly held by this court since the taking effect on September 19, 1881, of section 406, Code Civ. Proc. (section 641, Burns' Ann. St. 1901, § 629, Rev. St. 1881, and Horner's Am. St. 1901) that if the bill of exceptions is presented to the judge for his signature within the time allowed and the date of presentation is shown in the bill of exceptions, such bill of exceptions is in the record, although it is signed and filed after the expiration of the time allowed. Ewbank's Manual, §§ 31, 32; McCoy v. Able, 131 Ind. 417, 30 N. E. 528, 31 N. E. 453; Wysor v. Johnson, 130 Ind. 270, 30 N. E. 144. It follows that, as the said bills of exceptions were presented to the judge for his signature within the 90 days allowed from June 25, 1904, they are a part of the record, although filed after the expiration of the time allowed by the court, and must be considered in determining the questions presented by the error assigned.

The causes assigned for a new trial and not waived are: “(1) The verdict of the jury is not sustained by sufficient evidence. (2) Misconduct of one of the counsel for appellee in his closing argument. (3) Admission of certain testimony over the objection of appellant” [which is set forth in the motion for a new trial]. (4) The damages assessed are excessive.” The theory of the complaint as set forth in both paragraphs was that the relation of passenger and carrier existed between appellee's decedent and appellant at the time he received the injury which caused his death, and that the same was caused by the negligence of appellant. The first paragraph alleged that appellee's decedent was, at the time of his injury, a postal clerk in the service of the United States, and was in that character being carried on appellant's train under a contract between the United States and appellant, by the terms of which appellant agreed to carry the mails and postal clerks in charge of them for a consideration paid by the government. The second paragraph alleged generally that the decedent was a passenger for hire at the time of his injury.

Appellant insists that the evidence was not sufficient to sustain the verdict as to the first paragraph of complaint because there was no evidence of any such contract as that alleged, and that the evidence was not sufficient to sustain the verdict as to the second paragraph because there was no evidence “that the decedent paid or intended to pay his fare, or that he had been received and accepted by appellant as a passenger, or that the relation of passenger and carrier had otherwise been created.” A statute of the United States makes it the duty of railroad companies carrying mail to “carry on any train which may run over its road and without extra charge therefor mailable matter directed to be carried thereon with the persons in charge of the same.” The greater weight of authority is to the effect that railroads owe the same degree of care to postal clerks and mail agents riding in the postal car in charge of the mail as they do to passengers riding upon the train. Ohio, etc., Ry. Co. v. Voight, 122 Ind. 288, 23 N. E. 774;Cleveland, etc., Ry. Co. v. Ketcham, 133 Ind. 346, 350, 354, 33 N. E. 116, 19 L. R. A. 339, 36 Am. St, Rep. 550; Seybolt v. Lake Erie, etc., Ry. Co., 95 N. Y. 562, 47 Am. Rep. 75, 79, et seq; Gleeson v. Virginia, etc., Ry. Co. 140 U. S. 435, 11 Sup. Ct. 859, 35 L. Ed. 458; Magoffin v. Missouri Ry. Co., 102 Mo. 540, 15 S. W. 76, 22 Am. St. Rep. 798;Gulf, etc., Ry. Co. v. Wilson, 79 Tex. 371, 15 S. W. 280, 11 L. R. A. 486 and note, 23 Am. St. Rep. 345;Southern, etc., Ry. Co. v. Cavin, (C. C. A.) 144 Fed. 348;Chamberlain v. Pierson, 31 C. C. A. 165, 87 Fed. 420; 3 Thompson Com. on Neg. § 2649, and cases cited in note 120, p. 115. It was clearly shown by the evidence that appellant was engaged in carrying the United States mails on its trains under some arrangement with the Federal government, and that the decedent was a postal clerk in the service of the United States in charge of such mail...