New Albany Woolen Mills Co. v. Senior

• Decision Date: 27 May 1913
• Docket Number: No. 7,973.,7,973.
• Parties: NEW ALBANY WOOLEN MILLS CO. v. SENIOR.
• Court: Indiana Appellate Court

53 Ind.App. 453

101 N.E. 1025

NEW ALBANY WOOLEN MILLS CO.

v.SENIOR.

No. 7,973.

Appellate Court of Indiana, Division No. 2.

May 27, 1913.

Appeal from Circuit Court, Clark County; Harry C. Montgomery, Judge.

Action by Martha Senior, as administratrix, against the New Albany Woolen Mills Company. From a judgment for plaintiff, defendant appeals. Affirmed.

M. Z. Stannard and Jonas G. Howard, both of Jeffersonville, for appellant. Stotsenburg & Weathers, of New Albany, George H. Voigt, of Jeffersonville, and Paris & Trusty, of New Albany, for appellee.

LAIRY, J.

Appellee recovered a judgment in the trial court against appellant for damages resulting from the death of Joseph Senior. Senior was employed by appellant as night watchman at its factory, and his death was caused by the explosion of a boiler located therein.

[1] It is alleged that the duties of decedent under his employment required him to fire the boiler in question, and that he was so engaged at the time of the explosion. The theory of appellee is that the explosion was caused by reason of a defective condition of the boiler which was of such a character and had existed for such a length of time that it could have been discovered by appellant by the exercise of reasonable care in the inspection of the boiler. Appellant's theory is that the boiler was not defective, but that the explosion was caused by a lack of water in the boiler due to the negligence of the decedent.

The sufficiency of the complaint is challenged upon the ground that it fails to disclose by direct allegations that decedent was acting in the line of his employment at the time he received the injury which caused his death. To sustain its contention, appellant relies upon the case of South Bend, etc., Plow Co. v. Cissne, 35 Ind. App. 373, 74 N. E. 282. In so far as this case tends to support the position of appellant, it has been overruled in the later case of I. F. Force Handle Co. v. Hisey, 96 N. E. 643. The complaint under consideration is not subject to the objection pointed out, but under the later decision it is clearly sufficient in this respect.

[2][3] After the verdict had been returned and after the defendant had filed its motion for a new trial, the plaintiff moved the court fo a judgment in her favor on the verdict. The defendant in writing objected to the rendition of a judgment until after the court should rule upon its motion for a new trial. This objection was overruled by the court and judgment was rendered on the verdict, to which ruling and action of the court the defendant excepted. Appellant asserts that this action of the court constitutes reversible error. We do not so regard it. Plaintiff was entitled to a judgment on the verdict at some time unless the motion for new trial should be sustained. It the motion for a new trial had been sustained after the rendition of the judgment, no harm would have resulted to appellant, as the judgment would have been thereby set aside. On the other hand, appellant was not harmed by the subsequent overruling of the motion for a new trial, unless by the rendition of the judgment it was prevented from interposing a meritorious motion in arrest of judgment. It is well settled that a motion in arrest of judgment may not be filed before a motion for a new trial without waiving the latter motion. Cincinnati, etc., R. Co. v. Case, 122 Ind. 310, 23 N. E. 797;Kelley v. Bell, 172 Ind. 590, 88 N. E. 58. It is equally well settled that a motion in arrest of judgment must be filed before the judgment is rendered. Brownlee v. Hare, 64 Ind. 311;Blaemire v. Barnes, 173 Ind. 657, 91 N. E. 232. Appellant did not object to the rendition of the judgment upon the ground that it desired to file a motion in arrest after the ruling on its motion for a new trial and before the judgment should be entered; and it cannot complain that its objection, based upon the grounds stated therein, was overruled. The case of New York, etc., R. Co. v. Boane, 105 Ind. 92, 4 N. E. 419, cited by appellant, does not sustain its position. This case holds that judgment entered while a motion for a new trial is pending is not a final judgment within the meaning of the statute relating to appeals; that it becomes final only, when the motion for a new...