Pittsburgh, F. W. & C. R. Co. v. Swinney

• Decision Date: 08 October 1884
• Docket Number: 8652
• Citation: 97 Ind. 586
• Parties: Pittsburgh, Fort Wayne and Chicago Railway Company v. Swinney, Executrix
• Court: Indiana Supreme Court

97 Ind. 586

Pittsburgh, Fort Wayne and Chicago Railway Company v. Swinney, Executrix

No. 8652

Supreme Court of Indiana

October 8, 1884

From the Superior Court of Allen County.

The judgment is affirmed, with costs.

J Brackenridge, J. R. Cary, T. A. Hendricks, A. W. Hendricks C. Baker, O. B. Hord, A. Baker and E. Daniels, for appellant.

J. I Best, L. M. Ninde and P. A. Randall, for appellee.

Niblack J. Zollars, J., did not participate in the decision of this cause.

OPINION

Niblack, J.

This action was commenced by Rhesa Swinney, executrix of the last will of Thomas W. Swinney, deceased, on the 6th day of January, 1879, against the Pittsburgh, Fort Wayne and Chicago Railway Company, for alleged injuries to real estate. The complaint was in three paragraphs.

The first paragraph charged that, on the 20th day of July 1871, and previously, the decedent was the owner and in the possession of a particularly described tract of land, lying near the city of Fort Wayne, and containing about four and one-quarter acres, upon which there was deposited a gravel and sand bed, thirty feet in depth; that on that day the defendant, by its agents, servants and employees, wrongfully and wilfully entered into and upon said tract of land, and on divers days between that time and the 30th day of January, 1875, when the decedent died, dug up and carried way 180,000 yards of the gravel, and the same amount of the sand deposited thereon, leaving said lands covered with pools of stagnant water, and greatly injuring the decedent's adjoining lands.

The second paragraph charged that the tract of land described in the first paragraph was devised to the plaintiff, as the executrix, by the last will of the said Thomas W. Swinney, deceased, to be used and disposed of by her for certain purposes expressed in said will; that after the death of the testator the defendant, by its agents, servants and employees, wrongfully and wilfully entered into and upon said tract of land and dug up and carried away 180,000 yards of gravel, and a like amount of sand, found upon the same, to her damage as such executrix.

The third paragraph charged that, on the 20th day of July, 1871, the defendant went into possession of the tract of land referred to in the preceding paragraphs, under color of certain legal proceedings, which it afterwards dismissed and abandoned, and continued in the possession thereof until the 1st day of January, 1879, to the exclusion, first, of the testator, who was the lawful owner for the rest of his life, and afterwards of the plaintiff, as his executrix; that while so in possession the defendant dug up and carried away from said tract of land 180,000 yards of gravel, and a corresponding amount of sand, to the damage of the testator in his lifetime and of the plaintiff, as his executrix, since his death.

A demurrer to the complaint, for an alleged misjoinder of causes of action, being first overruled, the defendant demurred separately to each paragraph for insufficiency of the facts relied on for a recovery, but all the paragraphs were severally held to be sufficient upon demurrer.

The defendant then answered in six paragraphs.

The first was in general denial.

The second averred that the tract of land described in the several paragraphs of the complaint became necessary and indispensable for the defendant's use in ballasting, repairing and operating its railroad; that it accordingly, on the 25th day of July, 1870, appropriated said tract of land to its own use, and, on the same day, made out and deposited with the clerk of the circuit court of Allen county, a description of the rights and interests so appropriated, together with a plat of said land; that being unable to agree with the said Thomas W. Swinney, then in life, as to the price of the land so appropriated, it on the 5th day of August, 1870, by its petition in writing, made application to the judge of the Allen Circuit Court, then in vacation, for the appointment of suitable persons to assess the damages which the said Swinney might sustain by reason of the appropriation so made by the defendant; that, on the 8th day of August, 1870, said judge appointed three disinterested and competent freeholders of the county of Allen as appraisers to assess such damages; that said appraisers being first duly sworn, proceeded on the next day to examine the premises and to make an assessment of the damages which the said Swinney would sustain, fixing the amount at the sum of $ 10,000, and making return in writing of their said assessment to the clerk of the said Allen Circuit Court, in whose office the same was filed and recorded; that upon the return of such assessment, the defendant paid to said clerk, for the use of the said Swinney, said sum of $ 10,000 in lawful money of the United States; that having so appropriated said tract of land, and having so paid the damages resulting from such appropriation, the defendant dug up and carried away the gravel and sand found upon the same as it lawfully might.

The third paragraph pleaded the six years statute of limitations in defence of the action.

The fourth paragraph set up in a different form substantially the same facts contained in the second paragraph.

The fifth and sixth paragraphs were but varyingly stated repetitions of the defence of the six years statute of limitations.

The plaintiff replied, First. In denial of all the special paragraphs of the answer. Secondly. To the second and fourth paragraphs, that within ten days after the award of the appraisers was made and filed, the testator, Thomas W. Swinney, filed with the clerk of the Allen Circuit Court exceptions to the same; that afterwards the defendant caused the venue of the proceedings to be had upon such exceptions to be changed to the Whitley Circuit Court; that thereupon said Whitley Circuit Court proceeded to review the award of the appraisers, and to order a new assessment of the damages; that the question as to the amount of damages which ought to be awarded to the testator was then submitted to a jury, who returned a verdict assessing his damages at $ 39,750, upon which judgment was rendered against the defendant; that the defendant afterwards appealed the cause to the Supreme Court, where the judgment was reversed, and the cause was remanded for further proceedings; that during the pendency of the appeal the testator died, and after the return of the cause to the Whitley Circuit Court, the name of the plaintiff, as his executrix, was substituted; that after the name of the plaintiff had been so substituted, to wit, on the 2d day of December, 1878, the defendant, over her objection, voluntarily dismissed the cause and abandoned its proceedings for the appropriation of the land in controversy. Thirdly. To the third, fifth and sixth paragraphs, that the right to sue for the trespasses set forth in the complaint was suspended until the 2d day of December, 1878, by the proceedings set out in the second and fourth paragraphs of answer, and referred to in the preceding paragraph of reply.

Additional paragraphs of reply, known as numbers four and five, were also filed, but number four contained merely a substantial restatement of the facts contained in the second paragraph, and number five set up only more in detail the matters replied by the third paragraph. Demurrers were severally overruled to all of these special paragraphs of reply.

There was a verdict for the plaintiff, assessing her damages, as executrix, at $ 44,950. A new trial was denied, and the plaintiff had judgment on the verdict.

The defendant, appealing, insists that as the first paragraph of the complaint was for trespasses committed in the lifetime of the owner of the real estate, and that as the second paragraph was for damages sustained by the appellee as devisee of the real estate, and that as the third paragraph was, in substance, only an application for the assessment of damages under the statute, the complaint presented a different and much more flagrant misjoinder of causes of action than the kind of misjoinder referred to in sections 50 and 52, code of 1852, for which a judgment will not be reversed, and that for these reasons the court below committed an available error in overruling the demurrer for misjoinder of causes of action in this cause.

The latter section provided that "No judgment shall ever be reversed for any error committed in sustaining or overruling a demurrer for misjoinder of causes of action," and that provision is continued in force by section 341 of the code of 1881. As applicable to the complaint in this case, we are unable to recognize the distinction insisted upon by counsel for appellant, or, indeed, to see that there was any misjoinder of causes of action. When causes of action belong to the same class, and are between the same parties, and also inure to the benefit of the plaintiff in the same right, they may be joined. This case fully meets all of those requirements, since all of the damages demanded would constitute assets in the hands of the appellee. Lowe v. Bowman, 5 Blackf. 410; Fry v. Evans, 8 Wend. 530; Lea v. Hopkins, 7 Pa. 385; Pomeroy Rem., sections 479, 480; 1 Works Pr., section 336.

It is further insisted that the first paragraph of the complaint was bad upon demurrer upon the ground that the appellee, as executrix, had no right to sue for the damages inflicted upon the land in the lifetime of her testator, and the case of Taylor v. Fickas, 64 Ind. 167 (31 Am. R 114), is cited and relied on as sustaining that doctrine. In that case this court did say, "If this complaint" (referring to the complaint in that case) "was brought solely in the right of an administrator, the action would not lie. An administrator can not sue for an injury...