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(125 N.E.)

was made to the admissibility of the notes at the time they were offered in evidence.

[3] Appellant also contends that the verdict was not sustained by sufficient evidence. Appellant concedes that there is some evidence that he signed the notes sued on, but he contends that appellee did not have the "preponderance of the evidence on the question of delivery." The evidence on the question of the delivery of the notes was conflicting.

The next contention of appellant is that the evidence does not show any consideration. The circumstances surrounding the execution of these notes are somewhat indefinite and vague. It does appear, however, that at one time the appellant conveyed a tract of land to Bertha Musser, or her husband, George Musser; that he afterwards foreclosed the mortgage against them, and bid in the land at sheriff's sale, and afterwards assigned the certificate of purchase to John Hammond; that prior to the conveyance of said land to the Mussers the appellant had given George Musser a check for $370, with directions to turn the proceeds over to. one Foster; that Musser, instead of doing so, cashed the check, retaining $20, and turned $350 of the proceeds over to said Hammond. Appellant, for some reason not disclosed by the evidence, desired to "get even" with Hammond. How he expected to get even is not explained by the evidence. He was, however, desirous of getting George Musser to sign an order directing Hammond to pay said $350 to appellant. Mr. Masser was not inclined to sign this order. Appellant, with the idea of getting his money back from Musser and Hammond, and to "get even" with somebody, was desirous of having Musser's signature to this order, and according to the testimony of Mrs. Musser he promised her that, if she would induce her husband to sign said order, he would give her enough money to redeem their home from the sheriff's sale, and that her husband at her request and solicitation signed such order, and that thereupon appellant gave her the three notes in question, telling her that she could cash them, and that they would answer the same purpose as money. Appellant was a man of considerable wealth at that time, owning about 1,100 acres of land.

pellant to give her the money to redeem her home from the sheriff's sale and the circumstances connected with the execution of the notes. Appellant did not deny having had such a conversation with Mrs. Musser. He said, if he had such a conversation, he had forgotten about it. The question as to whether there was any consideration for the notes became a question of fact for the jury. There was no error in overruling the motion for a new trial because of the insufficiency of the evidence.

[4] Appellant also complains of the giving and the refusing to give certain instructions. By the tenth instruction to the jury the court charged them to the effect that, if it had been proven by a preponderance of the evidence that appellant promised Mrs. Musser to give her the notes in suit if she would induce her husband to sign a certain paper for appellant, and that Mrs. Musser performed said service and the notes were accordingly executed, such service was a sufficient consideration for the notes. We have already discussed this question in passing upon the sufficiency of the evidence to support the verdict. Appellant desired to secure the signature of George Musser to an order for the payment of a sum then held by John Hammond. If he had employed an attorney to secure this signature, no one would question but what the act of the attorney would be a sufficient consideration to support a note given in payment for such services. The fact that the person to whom the promise to pay was made happened to be the wife of Mr. Musser will not make any difference. There was no error in giving the above instruction.

[5] By the thirteenth instruction the court told the jury that under the fourth paragraph of answer the question was whether the signatures to the notes were the genuine signatures of the appellant, or whether such signatures were forged. Appellant says this instruction was erroneous, for the reason that under this answer the burden was on appellee to prove the execution of the notes, which included delivery as well as the signing. The court by the sixth instruction informed the jury that, under the answer of non est factum, the burden was on appellee to prove the signing and execution of the notes, and that, if the appellant introduced proof equal in weight to that introduced by appellee on this question, appellee could not recover. By the twelfth instruction the court told the jury that the burden of proving the execution of the notes was on the appellee, and that if, from all the evidence, they should find that the notes were not signed and executed by appellant, their verdict should be for appellant. even for appellant. The court by other instructions informed the jury that the burden was on the appellee to prove the material allegations of the complaint by a preponderance of the evidence, and that the burden was on ap

Appellant desired to secure the signature of Mr. Musser to the order, and he had a right to agree with Mrs. Musser to compensate her, if she would induce her husband to sign such order. He had a right to fix the value of such services, and such services, if performed, would be a valuable consider tion, and a sufficient consideration, for the execution of notes in controversy, even though they called for a much larger amount of money than the appellant was receiving back from Musser and Hammond. Mrs. Musser testified concerning the agreement of ap

several, so the assignments must be treated as
the separate assignments of each appellant.
3. FRAUD 64(1)-QUESTION WHETHER MIS-

REPRESENTATIONS WERE KNOWINGLY MADE
FOR THE JURY.

4. APPEAL AND
4. APPEAL AND ERROR

1001(1)—VERDICT

pellant to prove the allegations to the second and third paragraphs of answer. The fifteenth instruction told the jury that appellee could not recover unless the evidence showed by a fair preponderance that the notes were in fact signed and executed by the In action for inducing plaintiff by false repappellant. The court in the nineteenth in- resentations that one of defendants was ill with struction also informed the jury that the a disease not contagious to take such defendant burden of proving the execution of the note, into her home and care for him, question whethwhich includes delivery, was on appellee. er defendants knowingly and falsely representappellee.ed that the illness was lung fever when they While the thirteenth instruction is not a knew it was diphtheria was one of fact for the model to follow, we hold that when the in- jury. structions given are considered as a whole, and in the light of the evidence, its giving was not reversible error. The court by instruction No. 20 informed the jury that if appellee failed to prove the material allegations of his complaint by a preponderance of the evidence, and that the appellant proved the second, third, or fourth paragraphs according to the rules of proof as stated in the instructions, their verdict should be for appellant. Taking the instructions as a whole, the jury was informed that the burden was on the appellee to prove the execution of the notes, and that, if he failed to do that, the verdict should have been for appellant.

[6] Instructions Nos. 1 and 2, tendered by appellant and refused by the court, were correct statements of the law relating to the burden of proof in so far as the answer of non est factum is concerned, but the question was fully covered by the instruction given. The failure to give these instructions was therefore not error.

There was no error in overruling the motion for a new trial.

Judgment affirmed.

(71 Ind. App. 658)

MANWEILER et al. v. TRUMAN. (No. 10003.)

(Appellate Court of Indiana, Division No. 2.

Dec. 17, 1919.)

SUSTAINED BY EVIDENCE WILL NOT BE DIS-
TURBED.

A verdict sustained by evidence will not be disturbed by the Appellate Court.

5. TRIAL 56-EXCLUSION OF IMMATERIAL AND IRRELEVANT EVIDENCE PROPER.

There was no error in sustaining an objection to the testimony of a witness where all three of the defendants, appellants, had testified to such fact, and no witness had testified to the contrary.

6. APPEAL AND ERROR 1232-SURETIES ON

BOND LIABLE ON AFFIRMANCE AS TO ONE

APPELLANT.

In a term time appeal by three defendants from a judgment for plaintiff, where one appellant and his mother signed the appeal bond, they are liable for payment of the judgment, which must be affirmed against another appellant who filed no motion for new trial, even though there

be reversible error as to the other two appellants.

Appeal from Circuit Court, Allen County; J. W. Eggeman, Judge.

Action by Alice Truman against Frank Manweiler and others. Verdict and judgment for plaintiff against all three defendants, and they appeal and jointly assign error. Judgment affirmed.

Lee J. Hartzell and L. A. Todd, both of Ft. Wayne, for appellants.

T. E. Ellison, of Ft. Wayne, for appellee.

MCMAHAN, J. The appellee commenced

1. APPEAL AND ERROR 880(1)-ONE NOT this action against Frank Manweiler, Martin

MOVING FOR NEW TRIAL CANNOT BE AIDED
BY COPARTIES' MOTION.

Where three defendants appealed from a judgment, one of them, who filed no motion for new trial, is in no position to complain of overruling the motion of the others for new trial, and as to him the judgment must be affirmed.

2. APPEAL AND ERROR 721(1)-JOINT ASSIGNMENTS TO BE TREATED AS SEPARATE AS

SIGNMENTS OF EACH APPELLANT.

A contention that, assignments of error being joint as to all three appellants, defendants, and no motion for new trial having been filed by one defendant, the judgment must be affirmed as to all, is not well taken, since Acts 1917, c. 143, § 4, require assignments, whether joint or several, to be construed as joint and

Jones, and Mark W. Jones, and in her complaint alleged that said parties came to her home and represented to her that said Frank Manweiler was sick with lung fever, and that they had no place where he could be taken care of, and requested her to take him into her house and care for him until he was well enough to be moved; that he was so sick that he could not be taken to a hospital; that said Frank Manweiler was not ill with a contagious disease; that she told them that she could not take him or care for him if he was sick with a contagious disease; that she resick with a contagious disease; that she relied upon appellants' statement that he was not sick with a contagious disease, and took him into her house; that a short time there

For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes

(125 N.E.)

after she learned that he was so ill with diphtheria that he could not be moved; and that in order to save his life she nursed and cared for him. It is also alleged that when appellants made said representations to appellee they knew of said Frank Manweiler's true condition, and by reason of their said false statements caused her to take him into her house and home.

While it may be said that the evidence is not very satisfactory on the question as to whether appellants acted in good faith or not, there was some evidence of bad faith on their part. The jury saw and heard the witnesses while testifying. They were in a position to observe their looks, their manner and conduct, their intelligence or ignorance, their powers of perceiving facts, their capac

[1] The cause was tried by a jury, and re-ity for remembering and stating them. They sulted in a verdict and judgment against all three appellants for $100. The appellants Frank Manweiler and Mark W. Jones filed a joint motion for a new trial, which was overruled. All three appellants appeal, and jointly assign as error the action of the court in overruling the motion for a new trial. Martin Jones, having filed no motion for a new trial, is in no position to complain of the action of the court in overruling the motion of the other two appellants and, as to him the judgment must for that reason be affirmed.

[2] Appellee contends that, the assignment of error being joint as to all three appellants, and no motion for a new trial having been filed by Martin Jones, the judgment must be affirmed as to all, and cites Coffin v. Pfau, 61 Ind. App. 384, 112 N. E. 21, 117 N. E. 869, in support of this contention. The case cited supports this contention, but appellee has overlooked section 4, Acts 1917, pp. 523, 526 which provides that

"All assignmer.ts of error on appeal whether joint or several shall be taken and construed as the joint and several assignment of each party joining therein."

This statute requires us to treat the assignment of errors as a separate assignment by each appellant.

[3, 4] Appellants contend that there is no evidence of intent or design on their part to perpetrate a fraud upon appellee; that whatever statements were made by them to appellee were made in good faith and based upon the statement of a reputable physician.

The question as to whether the appellants falsely represented to appellee that Frank Manweiler was sick with lung fever when they knew he was suffering with diphtheria, or whether they acted in good faith with appellee, was a question of fact for the jury, and, if there is any evidence to support their verdict, it must stand. The jury in connection with their general verdict at the request of appellants answered certain interrogatories. By these answers the jury found specifically that appellants, at the time they took Frank Manweiler to the home of appellee, knew he was suffering with a contagious disease, and that they then knowingly perpetrated a fraud upon her.

were enabled to know whether the witnesses testified willingly or reluctantly, and, in a word, it may be said that the jury had virtually all of the means by which they could test the credibility which should be accorded to any or all of the witnesses who testified. On appeal, however, we are deprived of all the above-mentioned tests or means to guide us in ascertaining the credibility of the witnesses or in determining the weight to be given to their testimony. We have nothing but the inanimate record of the evidence before us, in which the words of one witness may mean the same as the words of another. In view of the disadvantage under which we are placed, we must decline to weigh the evidence, if there is any to support the verdict of the jury. The trial judge, in overruling the motion for a new trial, in a sense approved their verdict. We cannot set our judgment on the weight of the evidence and credibility of the witnesses against that of the jury and the trial judge, and say there is reversible error on the ground that the verdict is not sustained by sufficient evidence.

[5] Appellants also contend that the court Ethel Bunker, who was the cook at the Jones erred in refusing to permit them to prove by camp, that Frank Manweiler was at the camp on the Saturday evening before he was taken sick. There was no error in sustaining an objection to this testimony. All three of the appellants had testified to that fact and no question as to whether he was at the camp witnesses had testified to the contrary. The Saturday evening was immaterial and not relevant to any of the issues. It did not tend to dispute or impeach any evidence given on behalf of appellee. There being no reversible error, the judgment must be affirmed.

[6] This is a term time appeal in which the appeal bond is signed by the appellant Frank Manweiler and his mother, Mary Manweiler. In view of the fact that the judgment must be affirmed as to the appellant Martin Jones, the appellant Frank Manweiler and his mother are liable on their bond for the payment of the judgment against Martin Jones, even though there was reversible error as to the other two appellants. Judgment affirmed.

71 Ind. App. 506)

9. RAILROADS

CHESAPEAKE & O. RY. CO. v. PERRY.*

(No. 9983.)

352-CROSSING ACCIDENTS; CONFLICT BETWEEN VERDICT AND INTERROGATORY; "IMMEDIATELY."

General verdict in a crossing accident case,

(Appellate Court of Indiana, Division No. 1. adverse to a railroad company, is not in conDec. 9, 1919.)

1. RAILROADS 348(1, 7)-SUFFICIENCY OF EVIDENCE ΤΟ ESTABLISH NEGLIGENCE OF

RAILROAD COMPANY.

In an action for damages sustained by plaintiff by reason of personal injuries to his minor child, who, while driving across a crossing in a buggy, was struck by defendant's train, evidence as to defendant's failure to give warning signals, etc., held sufficient to establish defendant's negligence as the proximate cause of the injury, and to show the child's freedom from contributory negligence.

2. APPEAL AND ERROR 1002-REVIEW OF VERDICT ON CONFLICTING EVIDENCE.

A verdict on conflicting evidence, or evidence from which different inferences might be drawn, is conclusive on appeal.

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6. APPEAL AND ERROR 501(4)-NECESSITY OF RECORD SHOWING EXCEPTIONS TO REFUSAL OF INSTRUCTIONS.

flict with affirmative answer of jury to interrogatory as to whether the injured person could have heard the noise of the train immediately before driving on the crossing, for the word "immediately" means without interval of time, promptly, or instantly, and it cannot be assumed that, had the injured person heard the noise of the train, she could have avoided the injury.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Immediately.]

10. RAILROADS 347(8) - CROSSING ACCIDENTS; EVIDENCE THAT ELECTRIC GONG WAS OUT OF REPAIR.

In a crossing accident case, where plaintiff relied on failure of railroad company to give the required signals, evidence that its electric signal gong had been out of order, and had been in that condition for five or six days before the accident, held admissible to show that defendant might, by the exercise of ordinary care, have had the same repaired.

11. TRIAL 255(4)-NECESSITY OF REQUESTING INSTRUCTIONS LIMITING EVIDENCE TO PROPER SCOPE.

complaint for a particular purpose, defendant, if desiring to guard against its improper application, should request an instruction limiting it to its proper scope.

Where evidence was admissible under the

Appeal from Superior Court, Delaware County; Robert M. Van Atta, Judge.

Action by Aaron W. Perry against the Chesapeake & Ohio Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 118 N. E. 548.

Warner & Warner, of Muncie, Henry C. Starr, of Richmond, and John F. Robbins, of Indianapolis, for appellant.

Wilbur Ryman, of Muncie, for appellee.

BATMAN, J. This is an action by appellee Where the record did not show that defend- against appellant to recover damages susant excepted to the refusal of requested in-tained by him, by reason of personal injuries structions, any error in reviewing the same is not available on appeal.

7. NEW TRIAL 59-OVERRULING OF MOTION FOR JUDGMENT ON, ANSWERS TO INTERROGA

TORIES NO GROUND.

The overruling of a party's motion for judgment on answers to interrogatories notwithstanding the general verdict is not ground for new trial.

to his minor child, Valley M. Perry, alleged to have been inflicted on account of the negligence of appellant. The complaint alleges, and the evidence establishes, the following general facts: That a public highway known as Sycamore street extends north and south through the east part of Gaston, in Delaware county, intersecting practically at grade appellant's railroad in the southeast part of the

8. APPEAL AND ERROR 930(3)-PRESUMP-town. The railroad extends in a general di

TION AS TO FINDINGS ON SPECIAL INTERROGA-
TORIES.

A fact found by special interrogatory and answer must be accepted as true by Appellate Court, in determining conflict between verdict and special findings.

rection of southeast and northwest. On June
30, 1913, appellee's daughter, then 17 years
of age, was driving a horse and buggy south
along said highway. As the horse which she
was driving entered upon the crossing, one of
appellant's trains, approaching from the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*See, also, 118 N. E. 548.

(125 N.E.)

southeast, collided with the horse and buggy,,ally while a train was moving or standing at hurling appellee's daughter from the latter, the crossing, or within a distance of several and inflicting upon her serious injuries. Aft- hundred feet east or west therefrom, but that er issues were joined on the complaint, the it did not always work as designed, in this: cause was submitted to a jury for trial, re- That sometimes it did not ring as a train was sulting in a verdict in favor of appellee. The approaching or passing the crossing, and that jury also returned with its general verdict its at other times it would continue to ring long answers to certain interrogatories submitted after a train had passed. That appellee's by the court. Appellant filed its motion said daughter knew of the presence and purfor judgment on the answers to the inter- pose of said gong, but there is no evidence rogatories notwithstanding the general ver- that she knew that sometimes it failed to opdict, which was overruled. It also filed erate as designed. That on the occasion in its motion for a new trial, which was like- question she approached the crossing from wise overruled. Judgment was thereupon the north on Sycamore street in a buggy, travrendered in favor of appellee for $1,000 and eling at a reasonable rate of speed. That in costs. so doing she continuously looked and listened carefully for the approach of a train from either direction but that she did not discover the train in question until the horse she was driving was in the act of entering on the main track of appellant's railroad at said crossing. That on discovering the approach of said train she made an effort to avoid a collision therewith, but failed, and as a result received serious injuries.

[1, 2] The only error assigned by appellant and not waived by a failure to state any proposition or point with reference thereto relates to the action of the court in overruling its motion for a new trial. Under this motion appellant challenges the sufficiency of the evidence on the issues of negligence, contributory negligence, and proximate cause. While the evidence is not without contradiction on the question of appellant's negligence, still we are of the opinion that there is ample evidence to warrant the jury in finding that appellant failed to cause the signals required by section 5431, Burns 1914 to be given, as alleged in the complaint. The record discloses substantial evidence of the following facts, pertinent to the issues of contributory negligence and proximate cause:

There was evidence that the statutory signals designed to give warning of the approach of trains at public crossings were not given on this occasion, and that said electric gong did not ring: that appellee's said daughter listened for said signals and the ringing of said gong, but did not hear the same; that as she approached the crossing she had the presence of said gong in mind, and observed that it was not ringing; that she did not fully rely on that fact, but continued to look and listen for other signals of an approaching train, but neither saw nor heard any. There was also evidence that the engineer had cut off the steam some distance east of the crossing on Sycamore street, and that the train approached said crossing at a speed of about 30 or 35 miles an hour. In view of the evidence, which tends to establish these facts, we are bound by the deterinination of the jury on the question of contributory negligence and proximate cause. apeake, etc., R. Co. v. Perry (1918) 118 N. E. 548, and cases there cited.

Ches

That north of appellant's railroad track and east of Sycamore street there was a twostory canning factory, commencing about 10 feet east of said street and 30 feet north of said railroad track, and extending eastward, almost parallel with said railroad, for a distance of about 100 feet. That north of the canning factory there was a creamery building, with a driveway extending between it and the canning factory. That north of the creamery for a distance of several hundred feet there were a number of residences, barns, and outbuildings, and also orchards in full foliage. That between the canning factory and the main line of appellant's railroad there was a switch, on which stood a box car [3-6] Appellant in its motion for a new at the time of the accident in question. That trial has alleged that the court erred in reat one point the canning factory was in a fusing to give a number of instructions revery few feet from the north rail of said quested by it, but we are only required to switch. That three small trees, with branch- consider those numbered 4, 16, 17, 26, 29, 32, es in full leaf, stood near said street, between and 38, as they are the only ones on which the canning factory and appellant's railroad appellant has stated any proposition or point track. That one of said trees was at the end in its brief. There was no error in refusing of said switch near Sycamore street, and to give said instructions 4, 16, 26, 29, 32, and some of its leafy branches extended toward 38, as each of them were sufliciently covered said railroad track. That all of said objects by other instructions given by the court. were obstructions to the vision of any one There was no error in refusing to give said looking eastward along the line of said track, instruction 17 as it states that the law prewhile approaching said railroad crossing sumed that Valley M. Perry, when she apfrom the north on Sycamore street. That on proached and was about to cross appellant's the west side of said street, and near the railroad track, "saw whatever she might have railroad track, there was located on a post heard, had she listened." This inaccurate an electric gong, designed to ring automatic-statement is probably the result of inadvert

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