Town of Kirklin v. Everman
| Decision Date | 08 October 1940 |
| Docket Number | No. 27437.,27437. |
| Citation | 29 N.E.2d 206,217 Ind. 683 |
| Parties | TOWN OF KIRKLIN v. EVERMAN. MUNICIPAL WATER WORKS CORPORATION OF KIRKLIN v. SAME (two cases). |
| Court | Indiana Supreme Court |
On petition for rehearing.
Mandate in original opinion modified, and trial court directed to sustain motion for new trial of both defendants.
Transferred from Appellate Court under Burns' Ann.St.1933, § 4-215.
For former opinion, see 28 N.E.2d 73.Appeal from Howard Circuit Court; Joseph C. Herron, Judge.
Thos. F. Ryan and Robison & Robison, all of Frankfort, and Overson & Manning, of Kokomo, for appellants.
Thos. H. Fittz, of Indianapolis, and McClure & Shenk, of Kokomo, for appellee.
A petition for rehearing redirects our attention to certain instructions which are clearly erroneous, but which were not referred to in the original opinion for the reason that it was thought that they were directed to the second paragraph of the complaint, and that they could not have affected the result under the first paragraph, and that therefore the error in giving them was harmless. They were not referred to, since no good purpose would have been served by multiplying the reasons why a recovery upon the second paragraph could not be sustained. But it has been thought necessary to reconsider the question of the effect of these instructions in connection with the first paragraph of complaint.
By the principal instruction involved, the jury was told that the rules adopted by the State Fire Marshal, regulating the installation and maintenance of storage tanks for gasoline, are the law of this state, and that if the defendants or either of them buried a tank contrary to the rules of the State Fire Marshal, and kept gasoline stored therein, such action was negligence per se, and that if such negligence proximately caused the injury the plaintiff should recover. The rules were introduced in evidence, and they provide that the tops of all gasoline storage tanks shall be at least three feet below the surface of the earth and below the level of the lowest pipe into the building to be supplied. There was evidence that the tank involved in this case was installed less than three feet below the surface.
The instruction is clearly erroneous. The Legislature cannot delegate the power to make laws. Kryder v. State, 1938, 214 Ind. 419, 15 N.E.2d 386;Town of Walkerton v. New York, C. & St. L. R. Co., 1939, 215 Ind. 206, 18 N.E.2d 799. Nor is this a case in which the Legislature has enacted a law and delegated to a ministerialbody the duty of ascertaining the facts upon which the law will operate. In such a case disobedience would be in violation of the statute, and not of a rule of the ministerial board.
It is clear that the statute which authorizes the Fire Marshal to make rules for the safety...
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Hodge v. Nor-Cen, Inc.
...(1982), Ind.App., 441 N.E.2d 690; Second National Bank v. Sears, Roebuck (1979), 181 Ind.App. 1, 390 N.E.2d 229; Town of Kirklin v. Everman (1940), 217 Ind. 683, 29 N.E.2d 206. Therefore, appellants' claim of negligence could not survive a motion for summary judgment if the duty element of ......
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Sand Creek Partners, L.P. v. Finch, 29A02-9407-CV-439
...the coverage of the provisions of this statute. In Town of Kirklin v. Everman (1940), 217 Ind. 683, 28 N.E.2d 73, [on reh. 217 Ind. 683,] 29 N.E.2d 206, the Court said: 'Not every dangerous agency is a nuisance, and we believe it can be said generally that an instrumentality maintained upon......
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Androusky v. Walter
...of negligence for the jury to consider.” Zimmerman v. Moore, 441 N.E.2d 690, 696 (Ind.Ct.App.1982). See also Town of Kirklin v. Everman, 217 Ind. 683, 29 N.E.2d 206 (1940) (opinion on rehearing); Lachenman v. Stice, 838 N.E.2d 451 (Ind.Ct.App.2005), trans. denied. Further, even if the instr......
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Town of Kirklin v. Everman
...29 N.E.2d 206 217 Ind. 683 TOWN OF KIRKLIN v. EVERMAN. MUNICIPAL WATER WORKS CORPORATION OF KIRKLIN v. SAME (two cases). No. 27437.Supreme Court of IndianaOctober 8, Appeal [217 Ind. 685] from Howard Circuit Court; Joseph C. Herron, Judge. [217 Ind. 686] Thos. F. Ryan and Robison & Robison,......