The Mcelwaine-Richards Co. v. Wall

• Decision Date: 16 December 1902
• Docket Number: 19,854
• Citation: 65 N.E. 753,159 Ind. 557
• Parties: The McElwaine-Richards Company v. Wall
• Court: Indiana Supreme Court

65 N.E. 753

159 Ind. 557

The McElwaine-Richards Company v. Wall

No. 19,854

Supreme Court of Indiana

December 16, 1902

From Tipton Circuit Court; W. W. Mount, Judge.

Action by John Wall against the McElwaine-Richards Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.

Reversed.

E. E Stevenson, George Shirts, W. R. Fertig, R. B. Beauchamp and R. H. Proctor, for appellant.

I. W Christian, W. S. Christian and E. E. Cloe, for appellee.

OPINION

Jordan, J.

This action was instituted by appellee in the Hamilton Circuit Court, and thereafter venued to the Tipton Circuit Court. The purpose of the suit is to recover damages for personal injuries alleged to have been sustained by appellee while in the employ of appellant on October 21, 1899, at the city of Noblesville, on account of the turning of a chord of a truss upon which he was standing engaged at work at the time of the alleged accident. A trial resulted in appellee being awarded by the general verdict of the jury, damages in the sum of $ 3,000, and over appellant's motion for a new trial judgment was rendered thereon.

The errors assigned relate to the overruling of the demurrer to the complaint for insufficiency of facts, and in overruling the demurrer addressed to each of three paragraphs of the complaint on the ground that neither of said paragraphs stated a cause of action, and in denying the motion for a new trial.

We have not been favored with a brief on the part of appellee in this appeal. It appears, however, that after some twenty days or more beyond the time allowed under rule twenty-one pertaining to the Supreme and Appellate Courts for appellee to file a brief, he applied to the Appellate Court, wherein this cause was then pending, for an extension of time in which to file his brief. His application was denied by that court for the reason, we may presume, if for no other, that it had not been seasonably made. Therefore, in the absence of any brief on appellee's part, there is nothing to controvert or dispute the statement made by appellant's counsel in accordance with rule twenty-two, whereby they set forth such parts of the record which, as they claim, present the error or errors relied upon for a reversal. Under rule twenty-two this statement is required to be taken or accepted as accurate and sufficient for a full understanding of the questions presented for decision, "unless the opposite party in his brief shall make necessary corrections or additions." The evident purpose of rules twenty-two and twenty-three in requiring that the appellant and appellee shall make the respective statements therein mentioned, was to relieve the court of the labor of searching the record in order to ascertain whether the errors complained of are sustained thereby.

It will be observed that rule twenty-three exacts of the appellee the duty in his brief to point out any omissions or inaccuracies in the statement made by appellant in respect to the record. It is evident, therefore, that these respective rules subserve another important purpose in the furtherance of business pending in this court; that is, that all of the members thereof will be enabled to consider the errors involved through and by means of an examination of the respective briefs, without necessarily being required to resort to an inspection of the transcript. In the absence of a brief on appellee's part in this appeal, the statements made by appellant in his brief in respect to the complaint and other portions of the record stand undisputed, and we, in obedience to the rule in question, must treat and consider the same as accurate and true, and are not required to examine the record in order to discover if there are any omissions or inaccuracies in such statement; for this duty, under the rule, is expressly imposed upon the appellee, and not on the court.

Appellant's statement of the record discloses that the first paragraph of the complaint alleges that the plaintiff was employed by the defendant as a common laborer to work on the building; that he was inexperienced, and not a...