Vandalia Railway Company v. Keys
| Decision Date | 10 March 1910 |
| Docket Number | 6,920 |
| Parties | VANDALIA RAILWAY COMPANY v. KEYS, BY NEXT FRIEND |
| Court | Indiana Appellate Court |
Rehearing denied June 8, 1910. Transfer denied October 7 1910.
From Hendricks Circuit Court; John C. Robinson, Judge.
Action by Lewvearl Keys, by his next friend, against the Vandalia Railway Company. From a judgment for $ 2,000 on a verdict for plaintiff for $ 5,000, a remittitur having been filed for $ 3,000, defendant appeals.
Affirmed.
Enloe & Pattison, D. P. Williams and John G. Williams, for appellant.
George W. Brill and George C. Harvey, for appellee.
This was an action brought by appellee against appellant to recover damages for a personal injury. The complaint was in one paragraph. Appellant's demurrer thereto was overruled, and an answer filed, putting the case at issue. The cause was submitted to a jury for trial, and a verdict returned in favor of appellee. Appellant's motion for a new trial was overruled, and judgment was rendered on the verdict.
It is insisted, as reasons for reversal of the judgment, that the complaint is insufficient to withstand a demurrer, that the evidence fails to sustain the verdict, and that the court erred in excluding certain testimony offered by appellant. We will consider these in their order.
The complaint proceeds upon the theory that the Terre Haute and Indianapolis Railroad Company was an Indiana corporation, owning railroad property in this State, and that said company's road and other property were in the hands of and being operated by a receiver duly appointed by the federal court in a proper proceeding pending therein; that while said company's road was being so operated, appellee became a passenger on one of its trains, and while being carried as such passenger received personal injuries, which were caused by the negligent acts of the servants in charge of the train upon which he was riding, and for which injuries a right of action against the receiver, to recover damages therefor, accrued; that thereafter said Terre Haute and Indianapolis Railroad Company, and other parties interested in the proceedings in which the receiver was so appointed, petitioned said court to turn over to said company all of said property in said receiver's hands, and discharge him from the duty of operating the road; that the court granted the prayer of the petition, and ordered the property in the hands of the receiver restored to the company, upon the express agreement by the company "to assume and fully pay all the lawful liabilities and obligations of said receiver existing at the close of business on October 31, 1904, * * * and fully exonerate and save said receiver harmless against the payment of any liabilities incurred by him," which agreement was made an order of said court, and at the date named, appellee's claim for damages on account of the injuries received was an existing liability against the receiver; that thereafter said Terre Haute and Indianapolis Railroad Company consolidated with certain other Indiana railroad companies, under the provisions of the statute governing the subject, and formed appellant company, which received all of the assets and property of the Terre Haute and Indianapolis Railroad Company.
No question is made by appellant as to the sufficiency of the complaint to show a right of action in appellee against the receiver, for negligence proximately causing the injury complained of, and we therefore treat the complaint as being sufficient in this respect.
The points urged by appellant against the sufficiency of the complaint are (1) that the action is shown to be based on a written contract, and that neither the original nor a copy thereof is made part of the complaint, as required by the provisions of § 368 Burns 1908, § 362 R. S. 1881; (2) that the demand here sued on, being an unliquidated claim for damages for personal injuries, arising out of a tort, was not a liability nor an obligation within the meaning of the terms of the agreement set up.
It appears from the specific averments contained in the complaint that the only contract with reference to the subject was the order of the court made on the petition of the Terre Haute and Indianapolis Railroad Company, and the acceptance of the property by the company under the order.
The order of the court was not a written instrument, within the meaning of § 368, supra, requiring the original or a copy thereof to be filed with the complaint, where the action is founded on such written instrument. The order of the court was a public record, in the nature of a judgment of a court of record. It was not within the possession nor under the control of appellee, and the original could not have been made part of the record. This point is therefore not well taken. Hopper v. Lucas (1882), 86 Ind. 43; First Nat. Bank v. Hanna (1895), 12 Ind.App. 240, 39 N.E. 1054; Everitt v. Bassler (1900), 25 Ind.App. 303, 57 N.E. 560.
Was the obligation sued on an obligation or liability existing against the receiver, within the meaning of the agreement alleged to have been made by the Terre Haute and Indianapolis Railroad Company? The term "obligation" may be used to designate the contract itself, which confers rights and imposes duties upon the parties thereto, or it may mean duties arising out of a contract or from actionable tortious conduct. 6 Words and Phrases 4878, and cases cited. In the sense in which it was used in this case, it evidently was not intended to designate the contract itself, but the duties that were imposed on the receiver.
The word "liability" expresses in the most comprehensive manner any form of legal obligation; certainly all such as are measured by money valuation. Pittsburgh Melting Co. v. Reese (1888), 118 Pa. 355, 12 A. 362. Liability may arise from contracts, express or implied, from duty imposed by law or the judgment of the court, or in consequence of a tort committed. 18 Am. and Eng. Ency. Law (2d ed.) 846, and authorities cited.
It is elementary that if one is guilty of negligence proximately causing injury to the person or property of another, he will have incurred a liability to the party injured, and the facts that the liability is not admitted and that the damages are not ascertained do not affect the question of the existence of the liability, and the fact that the claims arising out of the liability are not assignable or subject to the process of garnishment is not a test of the existence of the liability. If the facts out of which the liability grows exist, the liability exists, even though it be denied by the party upon whom it rests.
Is there anything in the nature of the express agreement averred in the complaint that will justify the conclusion that the terms "lawful liabilities and obligations of said receiver," as therein used, were meant and intended by the parties in any different sense from that in which those terms are generally employed? Can the meaning of these terms, as they are alleged in the complaint to have been employed, be restricted to contractual liabilities and obligations, or obligations and liabilities that have been liquidated? Appellant contends that they should be so restricted.
In the determination of this question, we must consider as an established fact, that upon the date fixed in the order of the court--October 31, 1904--the receiver was lawfully liable to appellee for the amount subsequently determined by the verdict in this case, for an act of negligence committed by him while acting in his capacity as receiver, and that although the sum due as damages was subsequently ascertained, yet, in contemplation of the law, it was justly due and owing, and should have been paid by the receiver when the injuries were received.
From the very nature of the business in which the receiver was engaged, liabilities to passengers for injuries received, through the negligence of his servants, while said passengers were being transported over the road he was operating, were likely to occur. Valid obligations against the receiver for damages to goods and stock shipped over the road, produced by the same cause, were likely to arise. They were necessarily incidental to the business in which he was engaged. Bartlett v. Cicero Light, etc., Co. (1898), 177 Ill. 68, 52 N.E. 339, 42 L. R. A. 715, 69 Am. St. 206; Dow v. Memphis, etc., R. Co. (1884), 20 F. 260.
The court, by the order in question, was taking all of the property, including whatever betterment it had received while in charge of the receiver, out of his hands and turning it over to the company. The receiver could not be held personally liable for demands of this character arising against him in his trust capacity, and these were liabilities that, without some provision made for their payment, could not, as a matter of law, be enforced against the company taking back the property. It did not inherit the debts and liabilities of the receiver. Ohio, etc., R. Co. v. Davis (1864), 23 Ind. 553, 85 Am. Dec. 477; Bell v. Indianapolis, etc., R. Co. (1876), 53 Ind. 57; Indiana R. Co. v. Maurer (1903), 160 Ind. 25, 66 N.E. 156.
It cannot be inferred that the court, by its order turning over the property in the receiver's hands to the Terre Haute and Indianapolis Railroad Company, intended to cut off and discharge liabilities against the receiver, of the character here involved. It is to be presumed that it was intended to provide for such liabilities as though they had grown out of and been incurred by contracts entered into by the receiver in connection with the business of the receivership. As before stated, they were liabilities that were as clearly incidental to the operation of the road by the receiver as were any other claims or liabilities he...
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Vandalia Ry. Co. v. Keys
... ... C. Robinson, Special Judge. Action by Lewvearl Keys, by his next friend, Jerry Keys, against the Vandalia Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. [91 N.E. 174] Enloe & Pattison, D. P. Williams, and Jno. G. Williams, for ... ...