Repp v. The Indianapolis, Columbus And Southern Traction Company

• Decision Date: 23 February 1916
• Docket Number: 23,021
• Citation: 111 N.E. 614,184 Ind. 671
• Parties: Repp v. The Indianapolis, Columbus and Southern Traction Company
• Court: Indiana Supreme Court

111 N.E. 614

184 Ind. 671

Repp v. The Indianapolis, Columbus and Southern Traction Company

No. 23,021

Supreme Court of Indiana

February 23, 1916

Rehearing Denied April 27, 1916.

From Bartholomew Circuit Court; Hugh Wickens, Judge.

Action by Benjamin F. Repp against The Indianapolis, Columbus and Southern Traction Company. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under § 1394 Burns 1914, Acts 1901 p. 565.)

Reversed.

J. F Cox, for appellant.

Charles S. Baker and Frank N. Richman, for appellee.

OPINION

Spencer, J.

The only questions presented by this appeal arise out of the action of the trial court in sustaining a demurrer for want of facts to each paragraph of appellant's amended complaint. Before discussing the merits of the cause appellee seeks to invoke the rule that where the appellant's brief fails to set out in full the demurrer to a complaint, or to state its substance, no question will be considered which arises out of the ruling on such demurrer; also that such brief must state separately numbered propositions or points in support of each assignment of error relied on for a reversal. Conceding that the above rules may be invoked in a proper instance, it must also be borne in mind that their purpose is to so guide the preparation of briefs which are presented to this and the Appellate Court as to enable the several members of either tribunal readily to understand the questions which are presented for decision without resort to the record in the case then under consideration. Where a good-faith effort to comply with such rules appears to have been made, and their purpose has been served, the questions so presented will be considered and determined. Howard v. Adkins (1906), 167 Ind. 184, 186, 78 N.E. 665; Berkey v. Rensberger (1912), 49 Ind.App. 226, 228, 96 N.E. 32. In the case at bar appellant's brief sets out the substance of each paragraph of the complaint and shows that the ground of the separate and several demurrer addressed thereto was the insufficiency of the facts alleged in either paragraph to state a cause of action against appellee. The substance of the memorandum accompanying said demurrer is also set out in appellant's brief and indicates clearly that the only question presented on the merits of the appeal is, Does either paragraph of the amended complaint state facts sufficient to constitute a cause of action? As it is thus apparent that each assignment of error presents substantially the same question and as that question is so clearly presented by appellant's brief as not to require a resort to the record for its proper consideration, the omissions complained of may be regarded as technical inaccuracies which do not prevent an acceptance of that brief as in good-faith compliance with the rules.

Coming to a consideration of this cause on its merits, it appears from the first paragraph of appellant's amended complaint, omitting the formal parts thereof and those allegations which properly show the relation of passenger and carrier between the parties, that as appellant was preparing to leave one of appellee's interurban cars at a regular stop in the city of Columbus, and while he was still a passenger on said car, a man, whose name is unknown forcibly, wrongfully and unlawfully assaulted appellant in the presence of appellee's conductor in charge of said car, and without appellant's consent thrust his hand into appellant's pocket and held appellant and took from him a pocketbook of the value of fifty cents and containing the sum of $ 290 in money, all the property of appellant; that the assault and robbery occurred in the presence and view of appellee's conductor, and appellant called to him for assistance and protection, but he "wrongfully and negligently refused to in any manner assist or attempt to protect plaintiff; * * * that it was the duty of defendant's said conductor to come to his assistance and protection, and that said conductor could have protected plaintiff and with reasonable care could have prevented said assault and robbery; that said conductor possessed police power under the laws of Indiana, and, as such conductor, it became and was his duty to protect plaintiff. Plaintiff avers that said conductor of said defendant's said passenger car negligently stood by and negligently failed to aid or in any manner protect plaintiff from said assault and robbery; * * * that he (appellant) was an old man 78 years of age, weak and in feeble health, and he was not able, alone and without help and assistance, to protect himself from said assault and robbery, all of which said conductor well knew; that said conductor was young, strong and...