Turner v. City of Indianapolis

• Decision Date: 28 November 1883
• Docket Number: 9441
• Citation: 96 Ind. 51
• Parties: Turner v. City of Indianapolis
• Court: Indiana Supreme Court

96 Ind. 51

Turner v. City of Indianapolis

No. 9441

Supreme Court of Indiana

November 28, 1883

Reported at: 96 Ind. 51 at 60.

From the Superior Court of Marion County.

W. W Herod and F. Winter, for appellant.

C. S Denny and D. V. Burns, for appellee.

OPINION

Franklin, C.

This case was tried in the special term of the superior court, which resulted in a judgment for the appellant. The case was appealed to the general term, and the judgment of the special term was reversed, for the reasons that the complaint was insufficient, and the evidence did not sustain the verdict of the jury. The cause was remanded to the special term with instructions for further proceedings in accordance with the opinion reversing the judgment. An appeal was prayed to the Supreme Court, but no bond was filed. This was on the 8th day of June, 1880.

On the 8th day of November, 1880, the parties appeared in special term, and, on the motion of appellee, in accordance with the opinion in general term, the demurrer to the complaint theretofore filed was by the court in special term sustained; appellant excepted. And on the 10th day of December, 1880, at the next term of the special term of said court, the parties again appeared, and the plaintiff declined to plead further, and elected to stand on the ruling to the demurrer heretofore made. Whereupon judgment was rendered upon the demurrer for the defendant for costs.

The plaintiff, instead of again appealing the case to the general term, on the 12th day of May, 1881, filed a transcript of all said proceedings in this court, assigning as error thereon the reversal by the general term of the judgment first rendered by the special term.

Appellee objects to this court considering the case, and insists that the appeal ought to be dismissed. Upon the reversal of the judgment by the general term, the cause was regularly remanded to the special term, with instruction for further proceedings in accordance with the opinion. The plaintiff had choice of two proceedings, either to perfect his appeal to the Supreme Court, or go back to the special term for further proceedings. It is insisted that he elected to go back to the special term; and when he, without objection, voluntarily appeared at the subsequent special term, and the parties submitted the previous demurrer to the complaint to the court for decision, and the plaintiff excepted to the decision on the demurrer, and at a subsequent term of said special term again appeared in the case and declined to further plead, and, as the record shows, elected to stand on the ruling upon the demurrer, that he abandoned and waived his appeal to the Supreme Court, and elected to take his chances in further proceedings in the special term, and afterward was estopped from perfecting his said appeal to the Supreme Court; that the only way then to get into the Supreme Court was to again appeal to the general term, and through it come to the Supreme Court. And it is insisted by appellant that the statute gives him one year in which to perfect his appeal to the Supreme Court, and having given notice of his intention to do so, by praying an appeal at the time of the reversal of the judgment by the general term, no subsequent proceedings of the special term could cut off the right to perfect his appeal within the time given therefor by the statute.

Bigelow, in his work on estoppel, p. 562, lays down the rule to be, that "A party can not either in the course of litigation or in dealings in pais occupy inconsistent positions; and where one has an election between several inconsistent courses of action he will be confined to that which he first adopts. Any decisive act of the party done with knowledge of his rights and of the facts determines his election and works an estoppel."

Upon the reversal of the judgment by the general term, the first decisive act done by the appellant in this case was to pray an appeal to the Supreme Court. After that he had one year to perfect such appeal in. When the case went back to the special term, had appellant amended his complaint, or done any other decisive act evincing an intention to further proceed with his case in the special term, it would have been construed as an abandonment of his appeal to the Supreme Court, and a waiver of his right to afterwards perfect such appeal. But the mere excepting to the action of the court, in carrying out the judgment of the general term, and his afterwards declining to further plead, and electing to stand upon his complaint, evinced rather an intention to prosecute his appeal to the Supreme Court than to abandon it. We do not think that the subsequent proceedings in the special term cut off appellant's right to perfect his appeal from the reversal of the judgment by the general term. The case is properly in this court for decision, and the appeal ought not to be dismissed.

The first question presented is as to the sufficiency of the complaint, which, in substance, alleges that on the 27th day of October, 1877, appellee was an incorporated city under the general law of the State of Indiana; that appellant was on said last mentioned date employed in the fire department of said city, and, under his employment, it was his duty to drive the chief engineer of the fire department to all fires as speedily as possible; that on said date above mentioned, while engaged in the line of his duty as aforesaid, in driving the chief engineer to a fire, and going at a rapid rate, as it was necessary and proper he should do, he drove upon and against a large rock which the said defendant had negligently suffered and permitted to be and remain in and upon the roadway of Lafayette Railroad street, which was then and there a public street of said city, at and near the intersection of North street, and came violently into collision with said rock, by which the buggy in which plaintiff was seated was overturned, and plaintiff thrown therefrom to the ground with great force.

The complaint concludes with appropriate allegations as to the character of the injuries received and the damages sustained.

Appellee insists that the complaint is bad for the reason that appellant can not recover for injury caused by the negligence of the officers and agents of the city having supervision of her streets, because of the rule exempting a master from liability to a servant on account of the negligence of a co-servant.

While such a rule is admitted to exist, and doubtless ought to be applied to appropriate cases, we do not think that it can be correctly applied to the case under consideration. For negligently failing to keep a public street in repair or to remove obstructions therefrom, a city can not shield itself behind the negligence of its officers or agents whose special duty it might be to repair streets or remove obstructions. The State has delegated the power to and enjoined such duty upon the city as a corporation, and it must see that the duty is performed by its officers and agents.

Municipal corporations, as to the streets within their limits, owe to the public the duty to keep them in a safe condition for use in the usual mode by travellers, and are liable in a civil action for special injuries resulting from neglect to perform this duty. Dillon Mun. Corp., section 780; City of Lafayette v. Larson, 73 Ind. 367; City of Crawfordsville v. Smith, 79 Ind. 308 (41 Am. R. 612); City of Logansport v. Dick, 70 Ind. 65 (36 Am. R. 166); Town of Elkhart v. Ritter, 66 Ind. 136; City of Indianapolis v. Gaston, 58 Ind. 224; Grove v. City of Fort Wayne, 45 Ind. 429 (15 Am. R. 262); Higert v. City of Greencastle, 43 Ind. 574. In this class of cases, the negligence of the officer or agent becomes the negligence of the city, the same as notice to the officer or agent is notice to the city. It is through and by officers and agents that the corporation performs such duties. Nor do we think that the rule applicable to private corporations, such as railroads, etc., that the master is not liable for injuries caused by the negligence of a co-servant, can be applied to officers and agents of municipal corporations. If the rule in any case can be made applicable to such officers and agents, it can not be made to apply when they are acting in entirely different departments of the municipal government. We can not see wherein there is any co-service to be performed between members of the fire department and members of the street department, to which the rule could be applied to the case under consideration. A member of the fire department has no servitude connection whatever with the repairing of the streets, or the removal of...