McCowen, Probst, Menaugh Company v. Short

• Decision Date: 30 January 1918
• Docket Number: 9,464
• Citation: 118 N.E. 538,69 Ind.App. 466
• Parties: MCCOWEN, PROBST, MENAUGH COMPANY ET AL. v. SHORT
• Court: Indiana Appellate Court

118 N.E. 538

69 Ind.App. 466

MCCOWEN, PROBST, MENAUGH COMPANY ET AL. v. SHORT

No. 9,464

Court of Appeals of Indiana

January 30, 1918

Rehearing denied April 12, 1918, Reported at: 69 Ind.App. 466 at 475. Transfer denied March 5, 1919.

From Orange Circuit Court; William H. Paynter, Judge.

Action by Oscar F. Short against the McCowen, Probst, Menaugh Company and another. From a judgment for plaintiff, the defendants appeal.

Affirmed.

Elam Fesler & Elam, Howard S. Young, McCart & McCart and Mitchell & Mitchell, for appellants.

James M. Fippen and Buskirk & Buskirk, for appellee.

OPINION

FELT, J.

This is an appeal from a judgment for $ 1,500 damages in favor of appellee and against both appellants.

The only error relied on for reversal is based on the assignment that the court erred in overruling the motion of each of the appellants for judgment on the answers of the jury to the interrogatories notwithstanding the general verdict. It is stated in appellant's brief that "Each appellant expressly waives any right to a new trial and asks that this court order judgment in its favor, and if this court does not think the right to this relief is established, each appellant asks that the judgment below be affirmed."

The substance of the complaint shows that appellee was injured while working for and in the factory of the McCowen, Probst, Menaugh Company, and that at the time of such injury it carried liability insurance in its coappellant; that appellee was injured by the negligence of his employer aforesaid in failing to guard certain machinery which could have been guarded without interfering with its usefulness and efficiency; that by such injuries appellee lost his left arm, his nervous system was greatly shocked, his health was impaired, and he was permanently injured and incapacitated for the performance of labor of any kind, to his damages in the sum of $ 20,000; that he was attended by appellants' physician, and in 1911, while still under the charge and care of such physician, suffering from his said injuries, sick and weak in both body and mind, extremely nervous and unable to perform any labor with body or mind, appellants by and through their officers and agents called upon him at his home in Salem, Indiana, and induced him to accompany them to the office of the McCowen, Probst, Menaugh Company; that appellants then and there knew of his sick and weakened condition of both body and mind, and that he was unable and unfit to transact business, and likewise knew of the great amount of damages he has sustained by his aforesaid injuries; that thereupon appellants, with the intent to induce him to settle his claim for damages for $ 1,000, falsely and fraudulently represented to him that the McCowen, Probst, Menaugh Company was very strong financially, was greatly enlarging its factory, and would continue its operations so long as he would need or want employment, and would employ appellee and his two minor sons at $ 1.50 per day for each so long as hands should be employed in said factory; that in case he refused to so settle his claim for damages for his injury neither he nor his sons would be employed, and appellants would pay him nothing; that in case he brought suit to recover damages the companies would law him as long as they could in the lower courts and, if beaten, would appeal to the Supreme Court and keep the case in that court for three years; that it required a great amount of money to carry on such litigation, and appellee could not procure the necessary funds; that each of appellants by said agents further falsely and fraudulently represented to appellee that, unless he settled his claim on the terms aforesaid, he would be blacklisted by all employers of labor, and it would be impossible for him to secure employment; that the arrangements were then completed to so blacklist him if he did not then settle his claim; that appellants also falsely and fraudulently represented to appellee that his injuries, other than the loss of his arm, were only temporary, and he would be well in a few weeks, and that they made such statements upon the advice of their physician, who had been, and was, attending him; that all the statements aforesaid were false and known to be false by appellants when made, and were fraudulently made to induce appellee to execute a release and settlement of his claim for damages aforesaid; that he had no knowledge of the truth or falsity of the aforesaid statements of appellants, and appellants had full possession of the facts, and knew that appellee had no means of ascertaining the truth or falsity of the representations so made as aforesaid; that he relied on such statements, believed them to be true, had no means of knowing that they were false, and was thereby deceived and induced to, and did, execute a release of his claim for damages for personal injuries, as aforesaid, for $ 1,000 and payment of his doctor bill and nurse hire, whereby he was damaged in the sum of $ 19,000, for which he demands judgment.

The answers to interrogatories deal mainly with undisputed facts. They show that appellee was injured on August 25, 1911, and that the claim was settled on October 14, 1911; that the physician had ceased treating him before October 14, 1911; that appellants agreed to pay his doctor and nurse bills, amounting to $ 133; that McCowen, Probst, Menaugh Company further agreed to employ appellee and his sons; that the false representations were made by Thomas Bradshaw.

Interrogatory No. 7 and the answer thereto are as follows: "If any false representation was made to the plaintiff that induced him to make this settlement, what was it, and if more than one was made give them all. Answer: First by threats of carrying case to higher courts and that he would be well in a short time except loss of arm."

Appellants contend that the answers to the interrogatories "eliminate from consideration all the charges which these answers support"; that the representations mentioned in answer to the seventh interrogatory refer only to a clear legal right to litigate a claim and to events of the future which cannot be made the basis of a recovery on a charge of fraud.

Interrogatory No. 7 was improper, and should not have been given for the reason that it calls for more than a single issuable fact, and is not authorized by the statute. It includes several propositions, viz.: (1) Was any false representation made? (2) Did such statement induce appellee to make the settlement in controversy? (3) Was more than one false statement made? (4) If so, give them all. § 572 Burns 1914, Acts 1897 p. 123; Manning v. Gasharie (1866), 27 Ind. 399, 409; Farmers Ins. Assn. v. Reavis (1904), 163 Ind. 321, 324, 70 N.E. 518, 71 N.E. 905; Bettman v. Shadle (1899), 22 Ind.App. 542, 545, 53 N.E. 662; New York, etc., R. Co. v. Grossman (1897), 17 Ind.App. 652, 655, 46 N.E. 546; Peirce v. Oliver (1897), 18 Ind.App. 87, 91, 47 N.E. 485.

Such interrogatory being unauthorized by the statute and improper it and the answers thereto must be treated as surplusage, and cannot...