Southern Railway Company v. Crone

• Decision Date: 31 October 1912
• Docket Number: 7,719
• Citation: 99 N.E. 762,51 Ind.App. 300
• Parties: SOUTHERN RAILWAY COMPANY v. CRONE
• Court: Indiana Appellate Court

99 N.E. 762

51 Ind.App. 300

SOUTHERN RAILWAY COMPANY v. CRONE

No. 7,719

Court of Appeals of Indiana

October 31, 1912

From Floyd Circuit Court; William C. Utz, Judge.

Action by Clem Crone Against the Southern Railway Company. From a judgment for plaintiff, the defendant appeals.

Reversed.

Alex P Humphrey, Edward P. Humphrey, John D. Welman, and Walter V Bulleit, for appellant.

John W Ewing, William H. Roose, and Major W. Funk, for appellee.

OPINION

HOTTEL, C. J.

Appellee brought this action against appellant to recover damages for an alleged assault on appellee while he was a passenger on one of appellant's trains. From a verdict and judgment in favor of appellee in the sum of $ 325, appellant prosecutes this appeal.

The complaint is in two paragraphs, and the averments of each are, in all material respects, the same. The sufficiency of each paragraph was questioned by a demurrer, which was by the court overruled and exceptions saved. The only answer was a general denial.

A motion for new trial was overruled. The rulings on said demurrer and motion are relied on for reversal.

It is insisted that neither paragraph of the complaint is sufficient, because of the absence of an averment "that the agent or servant who did the assaulting was in the line of duty." In this connection, we should remark that because of the wording of the assignment of error, which calls in question this ruling, if either paragraph be sufficient, no available error is presented thereby. This, however, is unimportant, because in each paragraph the averment questioned by appellant's objection is the same. This averment is as follows: "Said defendant by its employees, servants and agents violently, insolently and brutally assaulted, struck and beat this plaintiff about the head, face and body," etc. Appellant could not have committed the assault through its agent, servant or employe except such person was acting in the line of his duty, and such an averment necessitates not only proof that an agent, employe or servant of appellant committed such assault, but the further proof that such person was in the line of his duty as such agent, employe of servant when he committed the assault. We now make these observations because of other questions that arise in the case.

The sufficiency of the complaint against the objections made has been expressly decided by the Supreme Court and this court. Wabash R. Co. v. Savage (1887), 110 Ind. 156, 159, 9 N.E. 85; Indianapolis St. R. Co. v. Slifer (1905), 35 Ind.App. 700, 74 N.E. 19; Citizens St. R. Co. v. Clark (1904), 33 Ind.App. 190, 71 N.E. 53, 104 Am. St. 249; Feighner v. Delaney (1898), 21 Ind.App. 36, 51 N.E. 379.

In support of its contention that the court erred in its rulings on the motion for a new trial, it is first insisted by appellant that the damages are excessive. The rule seems to be general with courts of appellate jurisdiction that this ground of a motion for a new trial will be of no avail in such courts except in cases where the damages assessed by the jury are so large that they induce the belief on the part of such court that the jury must have acted from prejudice, partiality or corruption. Such has been the frequent expression of this court and the Supreme Court. Louisville, etc., R. Co. v. Kemper (1899), 153 Ind. 618, 53 N.E. 931; Chicago, etc., R. Co. v. Vester (1911), 47 Ind.App. 141, 93 N.E. 1039, and authorities cited. The amount of the judgment in this case cannot be said to be so excessive as to induce in the minds of the court the belief above indicated.

It is insisted that the verdict of the jury is not sustained by sufficient evidence, and that it is contrary to law. As the same reasons are urged in support of each of said grounds of the motion, they will be considered together. The substance and effect of appellant's contention is as follows: (1) "Every case must proceed to judgment upon some definite legal theory, and upon appeal, the parties must be held to the theory upon which the case was tried." (2) That both paragraphs of the complaint were drawn on the theory that appellee was assaulted by a servant of appellant, acting within the line of his duty, and not on the theory that there was a failure on the part of appellant, as a carrier, to protect appellee from the assaults of one of its servants. (3) That the evidence fails to show anything more than that the person who committed the assault on appellee was a servant of appellant, and that there was no evidence that such servant was acting in the line of his duty, or within the scope of his employment when he committed such assault.

The first proposition is a legal one, supported by authority, Oolitic Stone Co. v. Ridge (1908), 169 Ind. 639, 644, 83 N.E. 246, and authorities cited; Diggs v. Way (1899), 22 Ind.App. 617, 621, 51 N.E. 429, 54 N.E. 412; Elliott, App. Proc. §§ 489, 490; Adams v. Davis (1886), 109 Ind. 10, 21, 9 N.E. 162.

We agree, also, with appellant in its contention that the complaint in this case proceeds on the one definite theory only, viz., that appellant violently, brutally and insolently committed the assault by and through its agent, etc., and not that it failed to protect appellee from the assault. In this connection, it is insisted by appellee that inasmuch as he was a passenger on appellant's train, appellant owed him the duty of protecting him from assault and injury, and that liability for injury resulting from a breach of such duty is not made to depend on the injury "being committed by one acting within the scope of his employment." As supporting this contention, appellee relies on the following cases: Citizens St. R. Co. v. Clark, supra; Dickson v. Waldron (1893), 135 Ind. 507, 34 N.E. 506, 35 N.E. 1, 24 L.R.A. 483, 41 Am. St. 440; Baltimore, etc., R. Co. v. Davis (1909), 44 Ind.App. 375, 89 N.E. 403.

There can be no doubt but that the general rule is as claimed by appellee, and that it is supported by the authorities cited, as well as by many others that might be cited. We think, however, that inasmuch as the carrier is not an insurer of the safety of its passengers while on its trains, there should be and are exceptions to this general rule. But we need not here discuss these exceptions, because, as to the question under discussion, appellee is in no position to invoke the benefit of the rule, for the reason that he has tendered no pleading to which it is applicable. Neither paragraph of the complaint proceeds on the theory that appellant permitted appellee to be assaulted by, or failed to protect him from the assault of the agents, servants or employes of appellant, but, on the contrary, each paragraph proceeds on the theory that by and through its agents appellant itself committed the assault.

Under the authorities first above cited, appellee is bound by the theory of his complaint, and may not be permitted, on appeal, to ask that his judgment in the court below be supported on a theory different from that presented by the complaint on which his case was tried and his judgment obtained. In determining the sufficiency of the evidence to support this theory, we are required to look alone to that most favorable to the general verdict, which is a finding that every fact essential to a recovery under such theory was sustained by the evidence. Chicago, etc., R. Co. v. Vandenberg (1905), 164 Ind. 470, 482, 73 N.E. 990; Heath v. Sheetz (1905), 164 Ind. 665, 667, 74 N.E. 505; Mazelin v. Rouyer (1893), 8 Ind.App. 27, 35 N.E. 303.

While an examination of the evidence has impressed us with the belief that there is but little, if any, direct evidence that can be said to indicate that the servant or employe of appellant who committed the assault was acting within the scope of his authority when he committed it, yet there was some evidence from which the jury might have drawn such inference. This conclusion is supported by the decisions of this court and the Supreme Court. Grand Rapids, etc., R. Co. v. King (1908), 41 Ind.App. 701, 706, 83 N.E. 778; Dickson v. Waldron, supra, 517, 518, and authorities cited; Barnett v. Gluting (1892), 3 Ind.App. 415, 29 N.E. 154, 29 N.E. 927; Henry v. Heeb (1888), 114 Ind. 275, 16 N.E. 606, 5 Am. St. 613. It follows that said grounds of the motion for a new trial do not present reversible error. Delaware, etc., Tel. Co. v. Fiske (1907), 40 Ind.App. 348, 351, 81 N.E. 1100; Heaston v. Gallagher (1908), 41 Ind.App. 20, 22, 83 N.E. 252; Secor v. Skiles (1886), 106 Ind. 98, 100, 5 N.E. 897.

Error in admitting certain evidence of Charles Goss, to which exception was properly saved, is urged. In response to the question, "What did Mr. Peck do, if anything, in the way of prosecuting people for criminal offenses connected with the Southern Railway Company?" the witness answered: "I have known him to prosecute fellows for being intoxicated on trains several times, and also for jumping on and off of trains."

It is insisted that there was no claim that the servant or employe of appellant who committed the assault was attempting to arrest appellee for intoxication, or that he was trying to arrest him for jumping on or off trains, and that the answer in no way showed the authority of Peck to put passengers off of the train. It was necessary that appellee should prove Peck's agency, and while this evidence may not have tended to prove that Peck was acting within the scope of his employment at the time of the alleged assault, yet we think under the law, it was proper as tending to prove agency, or that Peck was in the employ and service of appellant. Indiana, etc., R. Co. v. Adamson (1888), 114 Ind. 282, 290, 15 N.E. 5; 31 Cyc. 1662, 1663; Jewett v. Lawrenceburgh, etc., R. Co. (1858), 10 Ind. 539, 543. Its effect and purpose, or the particular feature of ...