Vandalia Ry. Co. v. Keys

• Decision Date: 10 March 1910
• Docket Number: No. 6,920.,6,920.
• Citation: 91 N.E. 173,46 Ind.App. 353
• Parties: VANDALIA RY. CO. v. KEYS.
• Court: Indiana Appellate Court

46 Ind.App. 353

91 N.E. 173

VANDALIA RY. CO.

v.KEYS.¹

No. 6,920.

Appellate Court of Indiana, Division No. 2.

March 10, 1910.

Appeal from Circuit Court, Hendricks County; J. 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.Enloe & Pattison, D. P. Williams, and Jno. G. Williams, for appellant. Geo. W. Brill and Geo. C. Harvey, for appellee.

RABB, P. J.

This was an action to recover damages for a personal injury brought by appellee against the appellant. 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, a verdict returned in favor of appellee, appellant's motion for a new trial overruled, and judgment rendered on the verdict.

It is insisted, as reasons for reversal of the judgment, that the complaint is insufficient to withstand demurrer, that the evidence fails to sustain the verdict, and that the court committed errors in excluding certain testimony offered by appellant. We will consider these in their order.

The complaint proceeds upon the theory that the Terre Haute & Indianapolis Railroad Company was an Indiana corporation, owning a railroad property in this state; that said company's road and property was 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, the 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 to recover damages therefor against the receiver accrued to him; that thereafter the said Terre Haute & Indianapolis Railroad Company, and other parties interested in the proceedings in which the receiver was so appointed, petitioned the 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 of the company “to assume and fully pay all the lawful liabilities and obligations of the 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; that, at the date named, the appellee's claim for damages on account of the injuries received, as aforesaid, was an existing liability against the receiver; that thereafter the said Terre Haute & Indianapolis Railroad Company consolidated with certain other Indiana railroad companies, under the provisions of the statute governing the subject, and formed the appellant company, which received all of the assets and property of the Terre Haute & 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: First, that the action is shown to be based on a written contract, and neither the original nor a copy thereof is made part of the complaint, as required by the provisions of section 368, Burns' Ann. St. 1908; second, that the demand here sued on, being an unliquidated claim for damages for personal injuries, arising out of a tort, was not a “liability” or “obligation” within the meaning of the terms of the agreement set up.

It appears from the specific averments contained in the complaint that all the contract with reference to the subject was the order of the court made on the petition of the Terre Haute & 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 sense and meaning of section 368 of the Code, 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 or 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, 86 Ind. 43;First National Bank v. Hanna, 12 Ind. App. 240, 39 N. E. 1054;Everitt v. Bassler, 25 Ind. App. 303, 57 N. E. 560.

Was the obligation sued on here an obligation or liability existing against the receiver, within the meaning of the agreement alleged to have been made by the Terre Haute & 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 & 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, 118 Pa. 362, 12 Atl. 362. Liability may arise from contracts, express or implied, from duty imposed by law or judgment of the court, or in consequence of a tort committed. 18 Am. & Eng. Enc. of Law (2d Ed.) 486, 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 fact 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 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 the 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 they were being transported over the road he was operating, was 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, etc., 177 Ill. 68, 52 N. E. 339, 42 L. R. A. 715, 69 Am. St. Rep. 206;Dow v. Memphis Railroad Company (C. C.) 20 Fed. 260.

The court, by the order in question, was taking all of the property, including whatever betterment it had received while in his charge, 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 the property back. It did not inherit the debts and liabilities of the receiver. Ohio & Mississippi Railroad Co. v. Davis, 23 Ind. 553, 85 Am. Dec. 477;Bell v. Indianapolis, etc., Ry. Co., 53 Ind. 57;Indianapolis, etc., Ry. Co. v. Maurer, 160 Ind. 30, 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 & Indianapolis Railroad Company, intended thereby to cut off and discharge liabilities against the receiver of the character here involved. It is to be presumed that such liabilities were as much intended to be provided for, as though the liabilities 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 might or could have incurred, and were clearly within both the letter and spirit of the agreement set up in the complaint. Gray v. Grand Trunk Ry. Co., 156 Fed. 736, 84 C. C. A. 392;Thompson v. Northern Pacific Ry. Co., 93 Fed. 384, 35 C. C. A. 357;Wabash v. Stewart, 41 Ill. App. 640. It being...