Sheridan Gas, Oil & Coal Co. v. Pearson

• Citation: 19 Ind.App. 252,49 N.E. 357
• Parties: SHERIDAN GAS, OIL & COAL CO. v. PEARSON.
• Decision Date: 04 February 1898
• Court: Court of Appeals of Indiana

19 Ind.App. 252

49 N.E. 357

SHERIDAN GAS, OIL & COAL CO.

v.PEARSON.

Appellate Court of Indiana.

Feb. 4, 1898.

Appeal from circuit court, Hamilton county; R. R. Stephenson, Judge.

Action by Albert C. Pearson against the Sheridian Gas, Oil & Coal Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Griffin, Griffin & Griffin and Shirts & Kilbourne, for appellant. Fertig & Alexander and Gavin, Coffin & Davis, for appellee.

COMSTOCK, J.

This action was brought by appellee against appellant to recover damages to appellee's storeroom and goods therein, in the town of Sheridan, this state, occasioned by an explosion of natural gas. The defendant (appellant) answered by general denial. There was a trial by jury, and a special verdict returned. Upon this verdict, on motion of appellee, judgment was rendered for $436. Appellant's motion for a new trial was overruled, and thereupon appellant moved to modify the judgment, which motion was overruled. The errors assigned are (1) error in overruling demurrer to complant; (2) error in sustaining motion for judgment in favor of appellee on special verdict; (3) error in overruling motion for new trial; (4) error in overruling motion to modify the judgment. The only questions discussed under the assignments (and, under the rules, all others are waived) are: (1) “Can the husband alone maintain an action for damages to real estate held by him and his wife as tenants by entireties?” (2) “Did the court err in overruling the motion to modify the judgment?”

The action was to recover damages sustained by appellee, a merchant, engaged in a retail business, for injury done to the storeroom and stock of general merchandise therein owned by him. In the course of the trial, it appeared for the first time from the evidence, at the beginning of the cross-examination of plaintiff, that the title to the real estate was held by him and his wife as tenants by entireties. Thereupon appellant moved to strike out all the testimony of the plaintiff relating to damages to the woodwork and wall paper on the building, the damage to the building, the depreciation of the rental value of the room for four months, which motion the court overruled. The verdict showed that the jury assessed as separate items of damages, amounts upon the building and wall paper, $25; upon the rental value, $36; upon the building, $125. At the proper time, appellant also moved the court to modify the judgment so as to exclude therefrom the amounts assessed upon the foregoing items. This motion was also overruled. To these rulings appellant duly reserved exceptions.

The complaint alleges that the plaintiff was, at the time of the explosion, the owner of a storeroom in the town of Sheridan, and stock of general merchandise, etc., which he held for sale at retail in said storeroom, etc. The action was personal, to recover damages sustained by appellee for injury to said storeroom and stock of merchandise. The plaintiff had the right to recover damages to the storeroom, although the title to the realty was in himself and wife as tenants by entireties. In Fairchild v. Chastelleux, 1 Pa. St. 176, it is held that, when husband and wife own real estate as tenants by entireties, the...