Rink v. Lowry

• Decision Date: 29 May 1906
• Docket Number: No. 5,655.,5,655.
• Parties: RINK v. LOWRY.
• Court: Indiana Appellate Court

38 Ind.App. 132

77 N.E. 967

RINK

v.LOWRY.

No. 5,655.

Appellate Court of Indiana, Division No. 2.

May 29, 1906.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Action by Jean M. Lowry, a minor, against Joe A. Rink and others. From a judgment in favor of plaintiff, defendant Rink appeals. Affirmed.

W. A. Ketcham and Jos. W. Hutchinson, for appellant. Kingsbury & Collier, for appellee.

COMSTOCK, P. J.

Appellee, by his next friend, brought this action against appellant, Joseph A. Rink, one of the defendants below, and his codefendants, Homer Johnson and the New Telephone Company, for damages for personal injuries received by him. The complaint was in three paragraphs, in all of which the same general facts are relied on. The defendants each separately filed a demurrer to the complaint, for want of sufficient facts. The separate demurrer of the New Telephone Company was sustained by the court, and, the plaintiff refusing to plead further, judgment was rendered against him as to said defendant. The separate demurrers of the defendants Johnson and Rink were each overruled by the court, whereupon the complaint was put at issue by general denials. Upon the issues thus joined, the cause was tried by a jury, a verdict returned for $5,000, together with answers to interrogatories. Each defendant moved the court for judgment in his favor on the answers of the jury to interrogatories, notwithstanding the general verdict, and filed his separate motion for a new trial, which motion for judgment in his favor, and for new trial respectively, being overruled, the court rendered judgment upon the verdict against the defendants Rink and Johnson, for the amount of the verdict. The errors relied upon for reversal are that the court erred in overruling appellant Rink's separate demurrer to the complaint; second, in overruling the separate motion of Rink for judgment in his favor on the answers of the jury to the interrogatories, notwithstanding the general verdict; third, in overruling the separate motion of Rink for a new trial.

The first paragraph of the complaint, omitting formal parts and character of injuries, avers in substance that on the 3d day of October, 1903, while engaged in the service of and acting for and as the servant of defendant, the New Telephone Company, the plaintiff was by direction, invitation, and allurement of defendant, Joseph A. Rink, induced to enter upon the premises of Rink, and did go into a certain building thereon for the purpose of making repairs on the telephone battery therein, which battery was used by the defendant Rink under a contract with the New Telephone Company. That said battery was located at the bottom of the elevator shaft in said building and that to execute the work properly it was necessary to enter the elevator shaft, and that he did enter the shaft for said purpose, but that before he did so he notified Homer V. Johnson, the defendant, who was the servant of defendant Rink, in charge of the elevator as the conductor thereof, that he desired to repair said battery and that it would be necessary to enter the shaft to do so. That the defendant Johnson assured plaintiff that he would not allow said elevator to descend onto him, and would not operate or permit said elevator to be operated so as to injure plaintiff while therein. That pursuant to said assurances and relying thereon, he entered said shaft to make said repairs and within five minutes thereafter, while diligently engaged in executing said work, defendant Johnson in charge of said elevator as the servant of defendant Rink, and while discharging the duties of his employment with and acting for and in behalf of defendant Rink, negligently, with knowledge of the perilous position plaintiff was in and that plaintiff would be injured thereby, and without any notice to plaintiff, caused said elevator and the machinery thereof to be set in motion and operated, whereby a part of the machinery, to wit, the counterweight thereof, was precipitated with great force and violence upon and against the plaintiff and injured him, concluding with the general charge of negligence of the defendant and that he, himself, was without contributory negligence. It is pointed out by the appellee that the assignment of errors challenges the complaint as an entirety, and that therefore, if either paragraph be good, no error is presented by the first specification in the assignment. The assignment is as follows: “The court erred in overruling the defendant Rink's separate demurrer to the complaint.” Under several decisions of the Supreme Court the proposition is true. Cambridge, etc., v. Routh, 163 Ind. 1, 71 N. E. 148. It is stated in appellant's brief that the first paragraph alleges that at the time in question plaintiff had been induced to enter upon the premises of appellant by his direction, invitation, and allurement; that its general allegation must fall, in the face of the subsequent allegation “that he was there as a servant of the New Telephone Company for the purpose of making repairs on the battery of said company, and for no other purpose; that it thus affirmatively appears that he was on appellant's premises solely for his own purposes and was therefore a mere licensee.”

Other averments following are that “and used by defendant Rink under a contract with the New Telephone Company,” etc. These averments do not support the claim made, nor can we concede that it appears from any other averments of the paragraph that appellee was on appellant's premises solely for his own purposes. The averments show, in effect, that appellee entered the premises, and upon the work in which he was engaged, at the request of appellant. That the servant of appellant, while in the discharge of the duties of his employment and acting for and in behalf of said Rink, negligently set in motion the said elevator thereby injuring appellee, without any fault or negligence on his part. It was sufficient to withstand a demurrer, and the consideration of the other paragraphs, under the rule, is unnecessary. We have read the interrogatories and the answers thereto, carefully and we find no irreconcilable conflict between them and the general verdict, and the motion to render judgment in behalf of appellant on them was therefore properly overruled. The objection made to instruction 12, to quote from appellant's brief “wholly ignored the question as to whether Johnson, at the time he made the agreement with appellee to refrain from operating the elevator while appellee was in the pit, was acting within the scope of his authority. It referred to the agreement as one of the elements of appellee's case, as it undoubtedly was, but it did not instruct the jury that the conclusion announced in the instruction was on the basis that Johnson was acting within the scope of his authority in making the agreement referred to and that if he was not so acting a different conclusion would follow as to appellant. But on the contrary the instruction was so worded that it was calculatedto lead the jury to the conclusion that the court was instructing them that Johnson's agreement was binding upon appellant.” The instruction is lengthy and we do not deem it necessary to here insert it in its entirety....