Smith v. Cleveland, C., C. & St. L. Ry. Co.

• Decision Date: 01 November 1917
• Docket Number: No. 9160.,9160.
• Citation: 117 N.E. 534,67 Ind.App. 397
• Court: Indiana Appellate Court
• Parties: SMITH v. CLEVELAND, C., C. & ST. L. RY. CO.

67 Ind.App. 397

117 N.E. 534

SMITH

v.CLEVELAND, C., C. & ST. L. RY. CO.

No. 9160.

Appellate Court of Indiana, Division No. 1.

Nov. 1, 1917.

Appeal from Circuit Court, Dearborn County; Warren N. Hauck, Judge.

Action by Susie E. Smith, administratrix of the estate of Frank Hiett, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for defendant, plaintiff appeals. Judgment reversed, and cause remanded, with instructions to sustain plaintiff's motion for new trial. See, also, 115 N. E. 603, former opinion now superseded.Estel G. Bielby, of Lawrenceburg, and Richard L. Ewbank, of Indianapolis, for appellant. L. J. Hackney and F. L. Littleton, both of Cincinnati, Ohio, for appellee.

BATMAN, J.

This is an action by appellant against appellee to recover damages on account of the death of appellant's decedent alleged to have been caused by appellee's wrongful acts. The complaint is in three paragraphs; the first being grounded on the alleged negligence of the appellee in failing to establish and enforce proper and safe rules for the management of its trains, and the negligent operation of its trains without such rules; the second on alleged negligence in operating its trains under the circumstances and conditions described therein; and the third upon the theory of the last clear chance. The issues were closed by a general denial, and were submitted to a jury for trial. After appellant had closed her evidence, appellee moved the court to instruct the jury to return a verdict in favor of appellee, which motion was sustained, and an exception to such ruling was reserved. The court thereupon directed the jury to return a verdict for appellee, which was accordingly done. Appellant filed her motion for a new trial, which was overruled, and an exception reserved. The court thereupon rendered the following judgment, to which appellant objected and excepted, to wit:

“It is therefore considered and adjudged by the court that the plaintiff take nothing by reason of her cause of action herein, and that the defendant do have and recover of and from the plaintiff, payable out of the assets of the estate of the decedent, Frank Hiett, its costs herein laid out and expended taxed at $-.”

Appellant thereupon filed her motion to modify said judgment in so far as it gave judgment against the estate of said decedent for costs, by striking therefrom that portion thereof directing such costs to be paid out of the assets of the estate of said decedent. The court overruled this motion, and the appellant reserved an exception to such ruling. Appellant appealed, and has called in question by an assignment of errors the action of the court in sustaining appellant's motion to strike out certain interrogatories,in overruling her motion for a new trial and in overruling her motion to modify the judgment as to costs. Appellee has filed its motion to dismiss the appeal herein for the reason that appellant attempted to take a term time appeal but failed to perfect it by not filing the record in this court within the time allowed by law for a term time appeal and for the further reason that the record is not properly certified.

[1] The record shows that at the time the court overruled appellant's motion to modify the judgment, she prayed an appeal, which was granted. No amount of bond was fixed, no sureties were named, or time given in which to file an appeal bond. These were necessary preliminary steps for perfecting a term time appeal, and since they were not taken, we do not believe it can be said that appellant attempted to take a term time appeal by the mere praying an appeal and having the same granted. The fact that appellant omitted such essential steps may well lead to the conclusion that a vacation appeal was contemplated at the time.

[2] But be that as it may, we deem it well settled that an appeal prayed and granted in term, if not perfected as such, will be treated and sustained as a vacation appeal, where the statutory requirements for such an appeal have been followed. Burns v. Trustees, etc. (1903) 31 Ind. App. 640, 68 N. E. 915;Kellogg v. Ridgely (1907) 40 Ind. App. 423, 81 N. E. 1158.

[3] In regard to the certification of the record it may be noted that subsequent to the filing of appellee's motion to dismiss, appellant was granted permission to have the clerk amend the original certificate to the transcript. Such permission was granted on June 23, 1915, and there is now appended to the transcript a new certificate of the clerk of the trial court in due form, bearing the date of June 25, 1915. This is a substantial compliance with the permission granted, and cures any defects in the original certification. Appellee's motion to dismiss must therefore be overruled.

[4] Appellee, in its brief on the merits points out several objections to the record, which it claims is fatal to the appeal. We will now consider these objections. It is claimed that appellant's bill of exceptions No. 2, on the action of the court in giving the peremptory instruction to the jury, cannot be considered a part of the record, as it appears from the bill itself that it was not signed until the day following the date on which it was filed by the judge with the clerk. This objection has been cured subsequent to the filing of appellee's brief by the return to a writ of certiorari, issued from this court on the 20th day of June, 1917, which shows that such bill of exceptions was, in fact, filed in the office of the clerk of the Dearborn circuit court on the 12th day of November, 1914, after it had been signed by the judge trying said cause. Such objection therefore requires no further consideration. Appellee also claims there is no recital in the transcript that appellant's bill of exceptions was made a part of the record in the cause, but in making this claim it is evidently mistaken, as appears from the record showing the filing of the same.

[5] Appellee further claims that appellant's bill of exceptions No. 1, containing the evidence, does not recite that it contains all the evidence given in the cause, and that therefore such evidence cannot be considered. It has been repeatedly held that this fact may be shown, either by a statement in the bill itself, or in the judge's certificate thereto. Ehrisman v. Scott (1892) 5 Ind. App. 596, 32 N. E. 867;Jordan v. Muth (1893) 6 Ind. App. 655, 34 N. E. 29;Petree v. Fielder (1891) 3 Ind. App. 127, 29 N. E. 271;Great Council v. Green (1913) 52 Ind. App. 198, 100 N. E. 472. We have examined the bill of exceptions and find that the judge's certificate thereto recites the following:

“The foregoing longhand copy and transcript of the evidence, now embodied in the foregoing bill of exceptions, is hereby made a bill of exceptions for the plaintiff in the above-entitled cause, and is hereby certified to be a full, true, and complete report of the evidence presented on said trial, and contains all of the evidence given in the trial of said cause.”

We consider this a substantial compliance with the requirement in this regard.

[6] Appellee also claims that the assignment of errors is joint and not several as to the errors alleged, and that the court must sustain each assignment, in order that appellant may prevail on appeal. An examination of the assignment of errors does not disclose that they are joint as claimed by appellee. Such assignment, after giving the court and title of the cause, states as follows:

“The appellant says there is manifest error prejudicial to appellant in the judgment and proceedings in this cause in this.”

Here follow five separate and distinct assignments of error, separately stated and numbered, no one of which calls in question more than one ruling of the court. We hold the assignments are several and not joint as contended by appellee.

[7] When we come to consider the record on the merits of the questions raised by appellant, we find she has waived her first and second assignments of error, relating to the action of the court in striking out certain interrogatories, by not showing that she reserved any exception to the court's ruling thereon, and in not otherwise presenting the same in her brief. The third assignment of error is based on the action of the court in overruling appellant's motion for a new trial. Several reasons are assigned therein, which we will consider in their order as stated. The first of such reasons relate to the action of the court in sustaining appellee's motion for a peremptory instruction.

[8] This action of the court does not constitute reversible error, since the mere sustaining of such motion worked no injury to appellant, but the substantial and available error, if any, was in instructing the jury to find in favor of appellee. Getchel v. Chicago Junction R. Co. (1902) 29 Ind. App. 410, 64 N. E. 618. The second, third, fourth, and fifth reasons relate to the action of the court in giving the jury a peremptory instruction to return a verdict for appellee. The sixth alleges that the verdict of the jury is not sustained by sufficient evidence, and the seventh alleges that the verdict is contrary to law. These several reasons for a new trial, in so far as they are properly assigned and presented in their final analysis, present the same question, viz.: Did the trial court err in peremptorily instructing the jury to return a verdict for appellee?

[9] It is well settled that a trial court is only authorized to direct a verdict in favor of a defendant in an action where there is an entire lack of evidence on some essential phase of the case necessary to a recovery. Where a motion is made for such a verdict, it is for the court to say whether there is any evidence to support each material issue or fact, and if there is such evidence, its weight or probative value is for the jury, and not for the court. If there is conflict in the evidence, so much thereof as is favorable to the party making such motion is deemed...