Niederhaus v. Jackson

• Decision Date: 15 December 1922
• Docket Number: No. 11381.,11381.
• Parties: NIEDERHAUS v. JACKSON.
• Court: Indiana Appellate Court

79 Ind.App. 551

137 N.E. 623

NIEDERHAUS

v.JACKSON.

No. 11381.^*

Appellate Court of Indiana, Division No. 2.

Dec. 15, 1922.

Appeal from Probate Court, Vanderburgh County; Elmer G. Lockyear, Judge.

Action by Fred Niederhaus against William J. Jackson, receiver of the Chicago & Eastern Illinois Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.Funkhouser, Funkhouser, Vandeveer & Markel, of Evansville, for appellant.

John E. Iglehart, of Evansville, Chas. O. Fowler, of Chicago, Ill., and Edward C. Craig, of Mattoon, Ill., for appellee.

NICHOLS, C. J.

Action by appellant to recover damages of appellee for the destruction by fire of certain buildings with their contents belonging to appellant, and located along and near appellee's railroad right of way.

The complaint is in two paragraphs. The first charges negligence of appellee in communicating the fire, the second that the fire was communicated by appellee's locomotive used in the operation of appellee's railroad, and undertakes to state a liability under an act of the Legislature (Acts 1911, p. 186, §§ 5525a and 5525b; Burns' R. S. 1914); the second paragraph being without reference to negligence.

Appellee filed three paragraphs of answer, the first a denial; the third is not involved, and the second is in substance as follows:

On February 16, 1916, long previous to the date of the fire mentioned in the said complaint, appellant and appellee entered into a lease whereby appellee, with the Chicago & Eastern Illinois Railroad Company, leased to appellant a portion of the right of way of said company; that the lease was in existence and in full force and effect at the time of the said fire; that said portion of said right of way was leased as a location for an unloading platform to serve the grain elevator and business of appellant then exisiting on premises belonging to appellant adjacent to the said portion of the right of way so leased as aforesaid, and his said business generally, with all of the buildings described in the complaint; that there was contructed on the said portion of the said right of way so leased as aforesaid such unloading platform to serve said grain elevator and said business; that the same was used in conjunction with and as a part of said grain elevator; that connected to the said grain elevator were a warehouse, an oil house, a barn, and other buildings described in the said complaint, all of which were also situated on appellant's premises adjacent to the said portion of the right of way so leased; that the portion of the said right of way so leased, and the unloading platform constructed thereon, were used by appellant in connection with the said grain elevator, warehouse, oil house, barn, and other buildings mentioned in the complaint; that the said grain elevator, warehouse, oil house, barn, and the other said buildings above referred to are buildings referred to in the complaint, which, with their contents were destroyed by fire on August 3, 1917, as set forth in the complaint; that the lease above referred to was in existence and in full force and effect on August 3, 1917, and among other things provided that, “in consideration of the privilege hereby given the lessee to occupy and use a portion of the ground of the railroad company, as above described, and the benefits and privileges to be derived therefrom, and of the rental as above named, the lessee hereby releases the lessors, their successors and assigns, from all liability, *** either in law or equity, for or on account of any cause of action that might arise by reason of any damage by fire to the lessee caused by the operation of the railroad of the lessors on, near or by the premises aforesaid, whether said damages occur on the premises hereby leased or on premises adjacent thereto,” etc.; that it is claimed in the complaint filed in this case that the said fire was set and communicated to said property of appellant therein described then on the portion of said right of way so leased and on the premises adjacent thereto by the operation of the railroad of the lessors on, near, and by the premises so leased as aforesaid. Appellee says that if it did set fire to the said property it is not liable therefor, whether said damage occurred on said premises so leased as aforesaid, or on the premises adjacent thereto, and says that said damage did occur on the said premises so leased as aforesaid, and on premises adjacent thereto, and this is all the loss and damage described in the complaint.

Appellant's demurrer to the said second paragraph of answer was overruled, and, appellant failing and refusing to plead further, the court adjudged that he take nothing on his complaint, and that appellee recover of appellant his costs.

Appellant assigns as error in this court the court's action in overruling his demurrer to the said second paragraph of appellee's answer.

Appellee earnestly contends that appellant waived any error as to his demurrer to the second paragraph of answer by failing to present therewith a sufficient and definite memorandum as to his objections to the same, and that appellant has so far failed to follow clause 5 of rule 22 of this court¹ in the preparation of his brief as to fail to present any question for the consideration of this court. We have, however, examined the memorandum attached to the demurrer, and we are of the opinion that the trial court was fully able to understand therefrom the objections to the second paragraph of answer which appellantattempted to present, and we further hold that appellant's brief shows a good faith effort to comply with said clause 5 of rule 22 of this court, and, as but one question is presented, that of the error of the court in overruling appellant's demurrer to the second paragraph of answer, the appeal will be considered on its merits.

[1] Appellant contends that the demurrer to the complaint should have been sustained for the reason that the contract of release pleaded therein is void, as it contravenes the public policy of the state as declared by sections 5525a and 5525b, Burns' R. S. 1914 (Acts 1911, p. 186), and for the further reason that it attempts to release appellee from liability for future negligence. The general propositions stated by appellant to sustain his contention, while supported by authorities, do not reach the question here involved. Railroad companies are common carriers, and...