Pape v. Lathrop
| Decision Date | 18 February 1897 |
| Docket Number | 1,947 |
| Citation | 46 N.E. 154,18 Ind.App. 633 |
| Parties | PAPE v. LATHROP |
| Court | Indiana Appellate Court |
Rehearing denied December 15, 1897.
From the Wells Circuit Court.
Reversed.
T. E Ellison, W. Leonard and E. Leonard, for appellant.
P. A Randall, N. D. Doughman and A. A. Chapin, for appellee.
On the 1st day of November, 1892, appellant and appellee entered into a written contract as follows:
The appellee sued appellant for an alleged breach of the foregoing contract, and drafted his complaint in two paragraphs. The substance of the breach of the contract, as averred in the first paragraph of the complaint is: That appellee continued in the employment of appellant, under said contract, until June 15, 1893, when appellant, without cause, dismissed him; that by the terms of said contract, appellee was to make application for patents upon inventions for the improvement of appellant's road machines; that prior to November 1, 1892, appellee had been working upon and maturing an improvement upon what is known as the "Reversible Road Grader;" the said improvement was a shifting axle and an improved style of front coupling; that appellee made known to one Schneider, appellant's foreman, his ideas as to said improvement; that after appellee entered into said contract, he went to building a road machine with said improvements, and applied for the patent thereon, which he was to assign to appellant; that since appellee has been discharged from his said employment, appellant has made application in the name of his said foreman, Schneider, for patents upon said improvements upon his road machines; that said device was of great value when patented, and worth $ 2,500.00. The complaint further avers that appellee performed all of the conditions of the contract on his part, but that the appellant did not, in this: "that he commenced a system of abuse upon plaintiff some time prior to his discharge; that his foreman, the said Schneider, was cruel and abusive, and all of which was done for the purpose of driving the plaintiff out of the employ of defendant, to get rid of him." The complaint further charges that appellee tendered his services to appellant after June 15, 1893, and was ready and willing to carry out his part of said contract.
The breach of the contract alleged in the second paragraph of complaint is so nearly identical to the first, that it is unnecessary to set it out again.
The appellant assailed each paragraph of the complaint by a demurrer, which the court overruled and appellant excepted. The appellant answered in four paragraphs:
1st. General denial.
2d. That soon after appellant employed appellee, as set out in the contract sued upon, the appellee, without cause or reason, became very much offended at one Schneider, appellant's foreman in his said factory, and would often during said employment, without authority from appellant, countermand orders and instructions given by said foreman, to the employes in his said factory, which said employes were under said foreman, and which resulted in great confusion among said employes and great loss and damage to appellant's business; that appellee's ill-feeling toward said foreman grew to such an extent that appellee notified appellant that said foreman would have to quit the employment of said appellant; that if said Schneider did not quit or was not discharged from appellant's employment, he, appellee, would quit; that said appellee demanded said discharge in an insolent and impudent manner, and openly and repeatedly, in the hearing of other employes of appellant, boasted that he, or said Schneider would have to quit; that they could not work in the same factory, and that he did not have to work for defendant (appellant); that these acts on the part of appellee engendered an ill feeling on the part of other employes toward said foreman, which appellee tried to aggravate to such an extent that several of said employes quit appellant's employ, which resulted in great injury to his said business; that for the purpose of avoiding further difficulty between appellee and said foreman, and further trouble among the employes, appellant sent appellee out on the road to sell goods, in order to keep him away from said factory, and did keep him away for six weeks; that appellee returned on the day of , 1893, and in direct violation of positive orders given by appellant to appellee, not to enter the shop or factory, or that department under said foreman, or to in any way interfere with said Schneider, and in direct violation of an agreement and understanding between appellant and appellee, said appellee entered said foreman's department, and without cause or reason, during working hours, and while said foreman was in the discharge of his duties for appellant, assaulted said foreman and cruelly and inhumanly beat and bruised him, from the effects of which he was incapacitated from fully discharging his duties to appellant, and that he has not yet fully recovered, which resulted in great damage and injury to appellant's business. That for these reasons, and to prevent further loss and trouble among his employes, appellant discharged appellee.
3d. That appellant discharged appellee, and offered to and did pay him the amount due him under the contract, to all of which appellee agreed and consented, and received and accepted the said amount for his services.
4th. The fourth paragraph is a counterclaim, and avers that appellant runs and operates a large factory, and had, at the time appellee was in his employment, a foreman, by the name of Schneider; that on the day of June, 1893, while said foreman was in the discharge of his duties as such foreman, and without cause or reason, in the presence of a large number of other employes, appellee assaulted and beat said foreman in a cruel and inhuman manner, cutting, bruising, and injuring him so severely that he was unable for a month to discharge his said duties; that he has not yet fully recovered; that said assault created great confusion in said factory, causing appellant to suffer great damage, by reason of the loss of said foreman's services, and loss of time of other employes, in the sum of $ 200.00, etc.
Appellee demurred to the three affirmative answers of appellant, which demurrer was overruled and appellee excepted. Reply by general denial. This cause was commenced in the Allen Circuit Court, and after a trial there, resulting in a verdict for appellee, and the granting of a new trial, the venue was changed to the Wells Circuit Court, where a trial by jury resulted in a general verdict for appellee for $ 1,846.12. Appellant moved in writing for a new trial, and assigned eighty-nine reasons therefor. His motion was overruled, judgment rendered upon the verdict, and he appeals, and has assigned errors as follows:
1. The court erred in overruling motion for a new trial.
2. The court erred in overruling appellant's motion to suppress portions of the deposition of Herman Hohnholz.
3. The court erred in overruling appellant's motion to strike out portions of the deposition of T. J. Hill.
The appellee has assigned cross-errors as follows:
1. The court erred in overruling appellee's demurrer to the third paragraph of appellant's answer.
2. The court erred in overruling appellee's demurrer to the fourth paragraph of appellant's answer.
The second and third assignments of error on behalf of appellant, do not present any question for our consideration. In Ohio, etc., R. W. Co. v. Judy, 120 Ind. 397, 22 N.E. 252, it is said: "A ruling on a motion to strike out parts of depositions must be assigned as cause for a new trial in order to present any question on appeal." This is the settled rule in this State. Hatton v. Jones, 78 Ind. 466; Bank and Loan Co. v. Dunn, 106 Ind. 110, 6 N.E. 131.
This leaves for our consideration the first assignment of error, which calls in question the action of the court in overruling appellant's motion for a new trial. It is urged by appellee that the motion for a new trial is not properly in the record and cannot be considered for two reasons.
1. The record does not show that the motion was presented to the court.
2. It is not signed by counsel.
We do not think these objections are well taken. On March 21, 1895 during the March term of the Wells Circuit Court, and the term at which the case was tried, appell...
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