Michigan Cent. R. Co. v. Spindler

• Decision Date: 16 January 1937
• Docket Number: 26820.
• Citation: 5 N.E.2d 632,211 Ind. 94
• Parties: MICHIGAN CENT. R. CO. v. SPINDLER.
• Court: Indiana Supreme Court

5 N.E.2d 632

211 Ind. 94

MICHIGAN CENT. R. CO. v. SPINDLER.

No. 26820.

Supreme Court of Indiana

January 16, 1937

Appeal from Starke Circuit Court; William liam C Pentecost, judge.

Harry B. Tuthill, Walter C. Williams, and Neville V. Williams, all of Michigan City (S. C. Murray and Marvin A. Jersild both of Chicago, Ill., of counsel), for appellant.

Moore Long & Johnson, of Gary, and Orville Nichols, of Knox, for appellee.

ROLL Judge.

This is an action by appellee against appellant to recover damages for injuries sustained when an automobile driven by deceased, Benjamin Spindler, and a train operated by appellant, collided, as the result of alleged negligence on the part of appellant.

The complaint was in three paragraphs, to which appellant filed a plea in abatement in two paragraphs. A demurrer was sustained to the plea in abatement and exception to this ruling was reserved. A motion to strike out parts of the second paragraph of complaint and a motion to make each paragraph of complaint more specific were also filed by appellant and each overruled, to which appellant took exceptions. The issues were closed by an answer in general denial. The cause was submitted to a jury, and at the close of plaintiff's evidence appellant filed its written motion for a verdict in its favor, in the following words: 'Comes now the defendant at the close of the evidence of the plaintiff, and moves the court to instruct the jury to return a verdict for the defendant.'

Thereupon, and before any further action was taken, appellee filed his written motion requesting a directed verdict in his favor, which motion, omitting the formal parts, is as follows: 'Comes now the plaintiff at the close of the plaintiff's evidence, and before the defendant introduces any evidence and after the defendant has filed a written motion that the court instruct the jury to return a verdict for the defendant, and moves the court to instruct the jury to return a verdict for the plaintiff.'

The subsequent proceedings after the filing of these motions, and which relate to the court's action thereon, we quote from the transcript of the record, as follows:

'The defendant's motion for the court to instruct the jury to return a verdict for the defendant is now overruled by the court, to which ruling of the court in overruling said motion the defendant at the time excepts.'

'The defendant now moves the court that the trial proceed before the Jury and that the defendant be permitted to introduce its evidence in defense, to which motion the plaintiff objects for the reason that plaintiff's motion for a direct verdict has not been ruled upon.'

'Plaintiff's objections is sustained and the defendant's motion to proceed with the trial before the jury is denied, to which ruling of the court in denying the defendant's motion the defendant at the time excepts.'

'Plaintiff's motion to direct the Jury to return a verdict for the plaintiff is now sustained by the court to which ruling of the court in sustaining plaintiff's motion, the defendant at the time excepts.'

'The defendant objects to the discharging of the Jury by the court, which objection is overruled by the court, to which ruling the defendant excepts and the Jury are now discharged, to the discharge of the Jury by the court, the defendant excepts.'

'This cause is now taken under advisement by the court.'

No further action was had for approximately one week, and then the court below made its finding in favor of appellee that appellee 'recover damages of and from the defendant in the amount of $2,999.99, and costs of this action.' Judgment in accordance with the decision was then rendered. In due course appellant filed its motion for a new trial which was overruled, and appellant excepted. This appeal followed, the errors assigned and relied upon for reversal that are discussed by appellant in its brief under the heading 'Propositions, Points, and Authorities,' being alleged error in sustaining the demurrer to appellant's plea in abatement; in overruling the motion to make each paragraph of the complaint more specific; and in overruling the motion for a new trial. The causes for a new trial contained in said motion, and properly presented for review here under the alleged error in the overruling of said motion, are: That the decision of the court is not sustained by sufficient evidence; that said decision is contrary to law; error 'in refusing to direct the jury to return a verdict for the defendant at the close of plaintiff's evidence'; error 'in refusing to allow defendant to submit its evidence to the jury after the court had overruled defendant's motion to direct the jury to return a verdict for the defendant at the close fo all (of) plaintiff's evidence'; error 'in discharging and dismissing the jury over the objections of the defendant, and refusing to allow said jury to hear the evidence of the defendant in said cause'; and error 'in refusing defendant its constitutional right that the jury pass upon and decide all questions of fact submitted at the trial of this cause.'

Appellant filed an answer in general denial to appellee's first paragraph of complaint, and afterwards appellee filed his second and third paragraphs of complaint, to which appellant addressed a plea in abatement, in which appellant alleged in substance that appellant did not control, operate, or possess power over any of the right of way, railroad tracks, rolling stock, or any of the property whether fixed or movable, as alleged in plaintiff's second and third paragraphs of complaint, either separately or with others; that it did not hire, employ, or control any of the servants or employees of agents alleged to have been engaged in the operation of said train, or any of the signals, bells, or electric appliances; that all were operated, maintained, and controlled by the New York Central Railroad, a corporation, and that appellant did not know or have any information concerning said accident, until it was served with summons in the action. Appellee's demurrer to the plea in abatement was on the ground that it did not state facts sufficient to abate the action. The memorandum to the demurrer was as follows:

'1. Defendant's answer in abatement is filed about a year after an answer in bar to the first paragraph of plaintiff's complaint.'

'2. The matters pleaded constitute an answer in bar, and not in abatement.'

Appellee's second and third paragraphs of complaint to which the plea in abatement was addressed alleged in substance that the train involved in the accident, the tracks, signs, etc., were owned and operated by appellant. These were material allegations and must be proven at the trial, in order for appellee to recover. The facts alleged in the plea in abatement, if true and proven at the trial upon the merits, would constitute a complete defense to the action. Matters which merely controvert allegations of fact alleged in the complaint cannot properly be pleaded in abatement of the action. Chicago, ect., Stone Co. v. Nelson (1904) 32 Ind.App. 355, 360, 69 N.E. 705; Peters v. Banta (1889) 120 Ind. 416, 423, 22 N.E. 95, 23 N.E. 84; Watson's Rev. Works Practice & Forms, vol. 1, § 546. The court did not err in sustaining appellee's demurrer to appellant's plea in abatement.

Appellant's motion to require appellee to make each paragraph of complaint more specific sought to have appellee state facts concerning the surroundings at the place of the accident, whether or not there were anything that obstructed the view of appellant's tracks west of the intersection and facts concerning the conduct of the deceased as he approached the crossing where the accident occurred. These facts, had they been incorporated in appellee's complaint, would have related to the question of whether the deceased was in any way guilty of contributory negligence. Contributory negligence is a matter of defense, and the burden of proving such a defense is on defendant in a personal injury case or in an action to recover for the wrongful death, and plaintiff's complaint need not show freedom from contributory negligence.

Appellant contends that the court erred in overruling his motion for a new trial, and his reason is predicated upon the court's action in withdrawing the case from the jury.

The record as above set out discloses that at the close of appellee's evidence appellant filed a motion for a directed verdict in its favor. Before the court ruled upon appellant's motion, appellee likewise filed his motion for a directed verdict in his favor. The court denied appellant's motion, whereupon, and before the court ruled upon appellee's motion, appellant made a motion that the trial proceed before the jury and that defendant be permitted to introduce its evidence in defense. Appellee objected to this motion, and the court sustained the same, and then sustained appellee's motion for a directed verdict. The court then discharged the jury and took the case under advisement for approximately a week and then entered a finding for plaintiff, and rendered judgment accordingly. Appellant reserved proper exceptions to each ruling of the court on the various motions, and now presents the correctness of such rulings to this court on this appeal.

As far as we have been able to discover, this precise question has never been presented to this or the Appellate Court of this state for decision.

Appellee states the general rule thus: 'A general request for a directed verdict joined in by the other party amounts to a waiver of the jury,' and cites Deeter v. Burk (1914) 59 Ind.App. 449, 107 N.E. 304; Watson's Pleading and Practice, § 1691. The above case and the following cases cited by appellee contain language which lend some support to appellee's...