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20 Fed. Rep. 894; Mackintosh v. Corner, 53 Md. 598; Rumery v. McCulloch, 54 Wis. 565; S. C. 12 N. W. Rep. 65; Thomas V. Talmadge, 16 Ohio St. 433; Wiener v. Davis, 18 Pa. St. 331; Darling v. Rogers, 22 Wend. 483.

The fact has not been overlooked that, in some of the states, statutes were in force, at the time some of the decisions above cited were made, which expressly enacted that preferences contained in deeds of general assignment should be void, and that all assignments should inure to the equal benefit of all the assignor's creditors. Our conclusion is, nevertheless, that the act regulating voluntary assignments in this state has substantially the same effect, and that, while it renders the preference of creditors voidable, the fact that the deed makes provisions for preferences does not overthrow the whole assignment, and make the deed fraudulent per se, unless it is apparent therefrom that such preferences were actually fraudulent, and that the deed was not intended to have effect and be operative under and in accordance with the provisions of the statute.

While adhering to the conclusions arrived at in Grubbs v. Morris, supra, the effect of which is to hold that preferences in a deed of assignment are invalid, and cannot be enforced in favor of a creditor so preferred, we affirm the decision of the court below, both in respect to its rulings on the complaint and cross-complaint, upon the theory above stated. The judgment is affirmed, with costs. (108 Ind. 548)

LAKE ERIE & W. R. Co. 0. ACRES.

(Supreme Court of Indiana. December 18, 1886.) 1. New TRIAL-ASSIGNMENT OF CAUSES FOR-EXCESSIVE DAMAGES.

The proper specification in an action of tort, where it is sought to present the question of excessive damages, is that “the daniages are excessive;" and in actions on contracts the proper specification is error in the assessment of the amount of

the recovery." 2. CARRIERS_OF PASSENGERS-NEGLECT TO CARRY PASSENGER TO DESTINATION, A TORT.

The wrongful refusal of a railway company to carry a passenger, who has entered its trains, to his destination, is ordinarily a tort, and not a breach of contract, and

an action therefor an action ex delicto. 3. NEW TRIAL-EXCESSIVE DAMAGES IN ACTIONS EX DELICTO.

Courts will not interfere with the verdict of the jury in actions to recover for injuries resulting from a tort, unless the amount assessed is so outrageous as to induce the belief that the jury must have acted from prejudice, partiality, or corruption.1

Appeal from superior court, Tippecanoe county.
Chase & Chase, for appellant. Coffroth & Stuart, for appellee.

ELLIOTT, C. J. This action was instituted by the appellee against the appellant, to recover damages for refusing and neglecting to carry him and his family to a station on the line of appellant's railroad for which he had purchased tickets. The evidence, so far as it is material to the question presented, is, substantially, this: That when the conductor of the train took the tickets from the appellee he directed the appellee and his family to leave the car in which they were seated, and enter a car in front, as the car would be left at Boswell, one of the company's stations; that they attempted to obey this order, by passing through the train, but were required to get off the train. They left the car in which they were seated, and attempted to get onto the front car, as directed, at the small station of Boswell, where the train halted. The car in which the appellee and his family were seated was not left at Boswell, but was taken on with the train. The appellee put his hand on the conductor's shoulder as the train was about to start, and said to him, “Hold on, we are not on vet,” but the conductor paid no attention to him, and gave the signal for the

See South Covington & C. St. Ry. Co. v. Ware, (Ky.) 1 S. W. Rep. 493, and note.

ti:ain to move on. After the train left the appellee and his family at Boswell, they started to go into the depot, but the agent would not permit them to remain there; and he then took his family to the hotel, and walked four miles to Talbot, the station for which he had taken passage, and got his wagon and team, which he had left there to await his return from La Fayette, where he entered the train. He drove back to Boswell, got his family, and drove to his home, reaching it between 2 and 3 o'clock in the morning. The appellee caught a severe cold from exposure, as did his wife; she being incapacitated from doing any work for two weeks.

The jury awarded the appellee $700 damages, and the appellant moved for a new trial; assigning as a cause that “the damages are excessive.”

The only point, as counsel for the appellant say, “that is available for the appellant, is that the damages are excessive.” It is insisted by the appellee's counsel that the action is not for a breach of contract, but that it is an action to recover damages for a tortious breach of duty, and that it is so recognized and treated in the motion for a new trial. The position of appellee is, substantially, this: If the action is for a breach of contract, then there is no cause assigned in the motion for a new trial presenting the question of error in the amount of recovery, for, in such cases, the cause for a new trial should be stated as “error in the assessment of the amount of recovery;” and that, as the cause assigned is that the “damages are excessive,” the appellant must be deemed to have acted upon the theory that the action is to recover damages for a tort. The decided cases support the contention of counsel that the fourth of the statutory causes for a new trial, namely, “that the damages are excessive,” is proper only in cases of torts. Dix v. Akers, 30 Ind. 431; Frank v. Kessler, 30 Ind. 8; Busk. Pr. 434. It follows, therefore, that the appellant treated the case below upon the theory that it was one of tort, and so treats it here, for the theory adopted governs. Carver v. Carver, 97 Ind. 497. Either this result follows, or else the appellant has no cause in his motion presenting the question counsel say is the only available one.

It is the general rule, and one that has long prevailed in this state, that the wrongful refusal or failure of a common carrier to carry passengers is a tort for which an action will lie. Cincinnati, etc., Co. v. Eaton, 94 Ind. 474; Lake Erie, etc., Co. v. Fix, 88 Ind. 381; Toledo, W. & W. R. Co. v. McDonough, 53 Ind. 289; Jeffersonville, etc., Co. v. Rogers, 28 Ind.l; Jeffersonville, etc., Co. v. Rogers, 38 Ind. 116.

It may, perhaps, be true that it is not every case in which the refusal of a carrier to carry passengers, who have rightfully entered its train, to their destination, can be deemed a tort; but we need not now attempt to distinguish between the cases, if, indeed, there is any ground for distinction, where the action will be deemed one for a breach of contract and one for the recovery of damages for a tort, for the appellant has treated the action as one in tort, and we must so decide it, especially as there are facts which, at least, tend to constitute the wrong of the appellant a tort. As the action is to be deemed one in tort, we cannot, under a firmly-established rule, interfere with the verdict of the jury, "unless the damages are so outrageous as to strike every one with the enormity and injustice of them, and so as to induce the belief that the jury must have acted from prejudice, partiality, or corruption.” Indiana Car Co. v. Parker, 100 Ind. 181, and cases, (see page 196;) Wolf v. Trinkle, 3 N. E. Rep. 112; Louisville, etc., Co. v. Falvey, Id. 401; Louisville, etc., Co. v. Pedigo, 8 N. E. Rep. 627, (this term.)

Judgment atfirmed.

(108 Ind. 599)

MORSE 0. STATE.

(Supreme Court of Indiana. December 23, 1886.) LARCENY-NEW TRIAL-WHEN GRANTED.

Where the only evidence upon which a conviction under an indictment for the larceny of a horn rests, is to the effect that the accused was found with it in his possession, and about to pawn it, a new trial should be granted on affidavits showing that the accused found the horn in his room ; that he kept it only to enable a friend to get employment as a musician; that he insisted on its being returned to the owner; and that he was drunk when he attempted to pawn it. Appeal from criminal court, Marion county. Indictment for larceny.

The evidence on which appellant was convicted is, in substance, that he and another were found in possession of a horn belonging to the prosecuting witness, and that they had taken it to a pawnbroker, and asked him how much he would loan upon it, but no loan was made. The newly-discovered evidence, as set forth in the affidavits for a new trial, is to the effect that the horn was found by appellant and others in his room at the boarding-house; that he used it merely for the purpose of aiding a friend to gain employment as a musician; that he was too much intoxicated to know what he was doing; and that, when one of the party suggested that the musician be allowed to keep the horn, appellant said: "No; that horn must be taken back.”

B. F. Davis, for appellant. The Attorney General, for the State.

ZOLLARS, J. Appellant was convicted, and sentenced to one year's imprisonment in the state's prison, upon an indictment charging him and another with larceny in the taking of a cornet horn shown by the evidence to be worth less than five dollars. He based his motion for a new trial mainly upon newly-discovered evidence which he could not have produced upon the trial. We have examined carefully the evidence upon which he was convicted, as also the newly-discovered evidence, as shown by his affidavit and the affidavits of the persons whose testimony he seeks to avail himself of upon another trial, and, without setting out either, we think it sufficient to say that, in our judgment, a new trial ought to be awarded. The new evidence, as set out in the affidavits, is important to appellant for the purpose of showing that, whatever he may have had to do with the horn, he had no intention of stealing it, nor of assisting another in the commission of such offense.

It may be observed, in passing, that the owner of the horn, as shown by his affidavit, has become convinced since the trial that appellant is not guilty of the crime for which he was convicted.

Judgment reversed, and cause remanded, with instructions to the court below to sustain appellant's motion for a new trial.

(108 Ind. 545)

MOCAMMAN 0. CUNNINGHAM.

(Supreme Court of Indiana. December 17, 1886.) 1. INSANE PERSONS— PROCEEDINGS TO ADJUDGE PERSON INSANE — REV. ST. IND. 1881, 8

2545— INSTRUCTION.

Upon the trial of a proceeding, under section 2545, Rev. St. Ind. 1881, to have a person adjudged of unsound mind, and incapable of managing his own estate, an instruction that "insanity is a stronger term, and implies a greater degree of mental infirmity, than is implied in the statutory phrase, 'of unsound mind,” was asked.

Held, properly refused. 2. SAME-JURISDICTION OF COURT TO APPOINT GUARDIAN.

The jurisdiction of the proper court to appoint a guardian is not confined to cases of insanity, idiocy, or lunacy, strictly so called, but extends to every case of mental unsoundness which has reached such a degree as renders its subject incapable of

conducting the ordinary affairs of life, and leaves him in condition to become the victim of his own folly or the fraud of others; but such a degree of mental unsoundness should be clearly made to appear. Appeal from circuit court, Montgomery county. Ballard & Clodfelter, for appellant. White & Moffett, for appellee.

MITCHELL, J. The appellant instituted this proceeding under section 2545, Rev. St. 1881, to the end that it might be adjudged that the appellee was a person of unsound mind, and incapable of managing his own estate, and having in view, further, the appointment of a guardian to take the custody of the appellee's person, and the management of his estate. Upon an issue made as the statute directs, a jury, after hearing the evidence and instructions of the court, returned, as their verdict, “that the defendant, James Cunningham, is a person of sound mind, and capable of managing his own estate.” It is now claimed that the verdict of the jury is contrary to the weight of the evidence, and that the conclusion reached resulted from the refusal of the court to instruct the jury properly as to the degree of mental unsoundness which would have warranted a finding contrary to that returned.

The appellant, at the proper time, requested the court to instruct the jury, in substance, that the phrase "of unsound mind," as used in the statute, did not necessarily imply insanity; that insanity is a stronger term, and implies a greater degree of mental infirmity than is implied in the phrase "of unsound mind;" that the mental condition implied by the latter phrase meant any unsound state of mind, whether arising from sickness, disease, the infirmity of age, or other like causes, which incapacitates a person from transacting his own business. This instruction was refused. As pertinent to the same subject, the court, upon its own motion, gave to the jury the statutory definition of the words “person of unsound mind." Section 2544, Rev. St. 1881. In the same connection the jury were further told, in substance, hat one might be in a condition of mental weakness or feebleness, resulting from disease or old age, and yet not be a person of unsound mind. The jury were further instructed, substantially, that the mental unsoundness which would justify them in finding against the defendant must be of such a character as to render him incapable of managing his own estate; and that if, upon all the evidence in the case, they should find that the defendant was mentally unsound to such a degree as to be incapacitated to manage his own affairs, they should so return the facts to the court.

Precisely what was meant by the request to instruct the jury that insanity is a “stronger term,” and implies a greater degree of mental infirmity, than is implied in the phrase "of unsound mind," we are not advised. It may be that it was intended to convey the idea that insanity was a more vehement, vituperative, or harsh expression; but it could hardly have been intended that it was more comprehensive, or that it embraced a degree of mental infirmity, which was not included in the statutory definition of the words “of unsound mind." These words necessarily include every species of insanity or mental unsoundness; and it is not, therefore, in a legal sense, correct to say that insanity is the "stronger term.” Willett v. Porter, 42 Ind. 250; Eggers v. Eggers, 57 Ind. 461.

Since that part of the instruction above referred to was not a correct statement of the law, the whole was properly refused, notwithstanding that the latter part, if it had been tendered alone, might with propriety have been given.

It may be proper to add that the jurisdiction of the court to appoint a guardian is not confined to cases of insanity, idiocy, or lunacy, strictly so called, but extends to every case of mental unsoundness or imbecility which has reached such a degree, from whatever cause, as renders its subject incapable of conducting the ordinary affairs of life, and leaves him in a condition to become a victim of his own folly or the fraud of others. But in no case should the benevolent purpose of the statute be abused by the assumption of jurisdiction over the person or property of another until such a degree of mental unsoundness is clearly made to appear. Lackey v. Lackey, 8 B. Mon. 107; Buswell, Insanity, 4.

An examination of the evidence discloses that the verdict of the jury was amply sustained. There was no error.

The judgment is affirmed, with costs.

(108 Ind. 576)

THOMAS V. THOMAS and others.

(Supreme Court of Indiana. December 18, 1886.) 1. DESCENT AND DISTRIBUTION-WILL-PARTIAL INTESTACY.

Where a testator disposes only of a life-estate in his real property, leaving the fee undisposed of by will, the law casts the fee upon his heirs according to the regular canons of descent; and an heir entitled to share therein according to the law of descent is not prevented from so doing by a clause in the will giving him

“twenty-five dollars only of” the testator's “real and personal property." 2. SAME-ESTOPPEL-CLAIM UNDER WILL AND BY LAW.

The legatee and heir, in such case, is not estopped by accepting the provision made him in the will, for his claim to an interest in the real estate as heir, is not inconsistent with, and is in no way affected by, the will. Appeal from circuit court, Washington county.

W. K. Marshall, F. L. Prow, and Mitchell & Mitchell, for appellant. Voyles & Morris, for appellees.

MITCHELL, J. Ambrose E. Thomas, in a formal complaint for partition, wherein the appellees were named as defendants, alleged that he was the owner in fee, as tenant in common, of an undivided one-eighth of certain real estate described, which he prayed might be partitioned according to the interests of the several tenants, as such interests were specifically alleged. The appellees answered that the land described had been owned in fee by Andrew Thomas, deceased, who departed this life testate, in the year 1878, leaving as his heirs a widow and eight children. The appellant, as also the appellees, were children of the testator. In the last will of Andrew Thomas, which is made part of the answer, appears the following: First. I give and bequeath to my beloved wife, Lucinda H. Thomas, in lieu of her interest in my lands, all of my lands, [describing them,] embracing in all two hundred and fifty-one acres, more or less, which I consider to constitute my home place, upon which I now live, to hold during her natural life. I also give to my wife one-third of all the personal property that I may own at the time of my decease; and also, in addition, three hundred dollars in money. Second. It is my will that all the rest of my personal property be sold, and the proceeds divided among my lawful heirs equally, except my son Ambrose E. Thomas. To him I will twenty-five dollars only of my real and personal property, in addition to the amount I have already advanced him.” Apart from the foregoing, the will contained nothing in the nature of a disposition of the testator's property. The answer set up that the testament had been duly admitted to probate; that the widow had elected to take the provisions therein made for her; and that the plaintiff had received and receipted for the bequest of twenty-five dollars, which fact had been duly reported in the account of the executor, who had fully settled the estate according to the provisions of the will, and who, it was alleged, had been discharged.

A demurrer was overruled to this answer, and, the plaintiff electing to stand by the demurrer, judgment was given that he take nothing by his suit. The propriety of this ruling depends upon the construction of the provisions of the will above set out. As will be seen, the only disposition which the testator made of or concerning his real estate was to devise an estate for life

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