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(108 Ind. 573)

Pocock and others v. REDDINGER.

(Supreme Court of Indiana. December 21, 1886.) EVIDENCE-PAROL-MISTAKE-WILL.

A mistake in a will cannot be corrected by parol evidence; but, where a general description of property devised is given, followed by a specific description, facts may be proved to establish a nistake in the specific description. Thus, where the will devises property, described as owned by the testator in a particular section, it may be proved what parcel he did own, although it may not be the one specifically described.

Appeal from circuit court, Marshall county.

A. C. Capron, for appellants. M. A. O. & 0. M. Packard and C. P. Drummond, for appellee.

ELLIOTT, C.J. The will of Catherine E. Reddinger contains, among others, this provision: “As to my real estate, I dispose of it as follows: I own the east half of the north-west quarter of section thirty-four, township thirty-two north, of range three east, in Marshall county, Indiana; and I hereby give and bequeath the same to my son, Charles A. Reddinger, as, and for his own absolute property forever. I also own the east forty-six acres off of the south sixty-three acres of the south half of the south-west quarter of section twentyeight, township thirty-two north, of range three east, Marshall county, Indiana, which, should the same remain undisposed of at my decease, I desire my executor to appraise and sell.” The testatrix.did not own the east half of the quarter section described in the will; but she did own the west half of that quarter section. The facts given in evidence show very clearly that she intended to devise to the appellee the quarter section owned by her, and that she made a mistake in specifically describing it.

The question in the case, as stated by counsel, is whether it was competent to show by extrinsic evidence that a mistake was made in describing the land devised. The general rule undoubtedly is, as the appellants contend, that a mistake in a will cannot be shown by parol evidence. Judy v. Gilbert, 77 Ind. 96, and cases cited; McAlister v. Butterfield, 31 Ind. 25; Funk v. Davis, 103 Ind. 281; S. C. 2 N. E. Rep. 739. But we do not regard this case as within the rule; for, in our opinion, the mistake is shown by the words of the will when applied to the subject matter upon which, as its language discloses, it was intended to operate. The words of the will show that the provision under consideration was intended to devise the land owned by the testatrix; for she introduces the subject by the words, “As to my real estate," and then says: “I own the east half of the north-west quarter of section thirty-four,” and “I devise the same” to Charles A. Reddinger, thus clearly showing that she meant to devise the land she owned. The words used in disposing of the second of the two parcels which she devised, adds strength to our conclusion, for the testatrix says: “I also own the east forty-six acres off of the south sixty-three acres of the south half of the south-west quarter of section twenty-eight." The mistake appears from the language of the will without the aid of verbal declarations; for, when it was shown that the testatrix did not own the east half of the quarter section, but did own the west half, no parol evidence was necessary to prove that she had made a mistake in drafting her will.

The case is within the rule declared in Cleveland v. Spilman, 25 Ind. 95; Black v. Richards, 95 Ind. 184. The principle upon which the rule depends is that, where the will itself shows that there has been a mistake in specifically describing land which is also designated by a general description, the will may be made to operate upon the land intended to be specifically described, but which, by mistake, is incorrectly described in the specific description which follows the general. Where, however, the language of the will itself does not furnish evidence of a mistake, a court cannot interfere upon the ground that a mistake was made by the testator.

Verbal declarations of a testator are not competent evidence to prove a mistake in a will, but evidence of facts and circumstances is. [t is proper to show the situation and condition of the testator's property; but it is not proper to prove what he said; for, when the instrument is written, that is deemed the expression of the testator's intention, and there the exploration for his intention must be made. It is obvious that, if verbal declarations were admitted, wills might be overthrown which expressed the intention of one who could not dispute evidence of his declarations, nor give any explanation of them, and thus grave evils would result. The law, however, is so well settled by the authorities that discussion is unnecessary. Funk v. Davis, supra; Judy v. Gilbert, supra.

The trial court did, therefore, err in admitting evidence of the oral declarations of the testatrix; but we think this error must be treated as a harmless one, as it clearly appears from the record that the result must have been the same, had this evidence not been given.

We do not depart from the ruling in Judy v. Gilbert and Funk v. Davis; for we hold that the will decisively and clearly shows that the testatrix meant to devise the half of the quarter section she owned, and not any other parcel; that, as it may be shown by evidence of the fact, without proof of oral declarations, that she owned, not the parcel specifically described, but another in the same section, the case is not within the rule declared in those cases, but is within the rule declared in Cleveland v. Spilman.

Judgment affirmed.

(109 Ind. 488)

MIDLAND Ry. Co. 0. SMITH. 1

(Supreme Court of Indiann. December 23, 1886.) RAILROAD COMPANIES-ASSESSMENT OF DAMAGES-Rev. ST. IND. 1881, 8881-912. -DESCRIPTION IN WRIT.

An application and writ for the assessment of damages must, under section 906, Rev. St. Ind. 1881, contain a “precise description of the real estate desired to be taken;" and, where it is described as passing, "over and across the plaintiff's said land about ten rods north of the center of said tract, occupying for its right of way a strip through said land, running east and west at the point aforesaid, about one hundred feet wide," the description is too indefinite, and the writ should be quashed on proper motion. Appeal from circuit court, Hamilton county. Kane & Davis, for appellant. Stephenson & Fertig, for appelleo.

NIBLACK, J. This was an application by Samuel M. Smith against the Midland Railway Company, under sections 906 and 909, Rev. St. 1881, for the assessment of damages on account of the survey and location of the company's line of road over the applicant's land. T'he application, which was filed in vacation of the court below, averred that the applicant, Smith, was the owner in fee-simple of the E. } of the N. W. 4 of section 3, in township 18 N., Range 3 E., in the county of Hamilton, in this state; that said company had surveyed and located its road-bed west through Hamilton county; and that its line of road passed “over and across the plaintiff's said land about ten rods north of the center of said tract, occupying for its right of way a strip through said land, running east and west at the point aforesaid, about one hundred feet wide." Wherefore, after the averment of other pertinent facts, the applicant prayed that a writ for the assessment of his damages, under sections of the Revised Statutes from 881 to 912, both inclusive, might be issued, and such a writ was accordingly issued by the clerk of the court below. The writ, which recited what purported to be the material part of the application, contained the same description of the strip of land as that embraced in

1Rehearing denied. See 25 N. E. 153. Rehearing denied,

the application as above given. The sheriff, to whom the writ was issued, after giving notice to the railway company, summoned and impaneled a jury of eight persons, who; after an examination of the premises, assessed the applicant's damages at the aggregate sum of $500, and the sheriff made return of his proceedings to the clerk, who issued the writ.

At the ensuing term of the Hamilton circuit court the railway company entered a special appearance to the action, and moved to quash the writ, upon the ground that the writ, as well as the application, did not contain a “precise description" of the strip of land sought to be appropriated by the company, within the meaning of section 906, Rev. St. 1881, supra; also that the application did not refer to the law which authorized the railway company to take and appropriate the strip of land in question; but the court overruled the motion. Such proceedings were thereupon had as resulted in a confirmation of the assessment of damages made by the jury, and in a judgment in favor of the applicant, Smith.

The policy of the statute under which this proceeding was instituted seems to be to require such a “precise description" of the real estate for which an assessment of damages is desired as will thereafter preclude any difficulty in identifying the land in another action concerning it, or in any other respect, when an identification shall become material; also to require a reference to the law authorizing the taking of such real estate, so that the court may be informed as to the nature and validity of the title which will pass to the person, corporation, or company taking it, upon the assessment and payment of resulting damages. These requirements may sometimes inflict greater inconvenience upon the owner of the real estate, who applies for the assessment of damages, than upon the person, corporation, or company which seeks to appropriate some particular part of his real estate for which damages are to be assessed, since such person, corporation, or company must usually be presumed to be better informed as to the facts necessary to fulfill such requirements; but, however that may be, the statute seems to require that whoever applies for the assessment of damages under it must give a precise, and hence particular, description of the real estate sought to be taken, and refer to the law which authorizes the taking as proposed.

The phrases, "about ten rods north of the center of said tract," and "a strip through said land, running east and west at the point aforesaid, about one hundred feet wide,” are both uncertain and indefinite,—the first as to the location of the particular strip of land referred to, and the second as to the area which it contains. Both taken together did not constitutesuch a “precise description" of the land intended to be described as is contemplated by the statute under which the application in this case was made. There is also nothing expressed to indicate what part of the strip of ground lies about 10 rods north of the center of the applicant's tract of land,-whether its center line or its nearest edge. The motion to quash the writ for the assessmeij of the applicant's damages ought, therefore, to have been sustained.

In construing the sections of the statute now before us, we have adhered to the construction placed upon those sections by the case of Indianapolis & V. R. Co. v. Newsom, 54 Ind. 121. In that case the line of road was described as extending diagonally through the land in question "from a point near the north-east corner to a point near the south-west corner,” and it was held that this description was not sufficiently “precise,” within the provisions of section 906 of the statute hereinabove commented upon.

Pending the motion to quash the writ for the assessment of the damages, the railway company asked and obtained leave to strike out the word “about” wherever it occurred in the application for the writ, in connection with the description of the strip of land to which reference was therein made; and it was after the word "about” was so struck out, in pursuance of the leave thus granted, that the motion to quash was overruled. There was, however, no leave asked to amend, and hence no amendment was made in, the description of the strip of land contained in the writ which conferred the authority for the assessment of the damages. Under such circumstances, the amendment of the application did not cure the defective description in the writ, and did not, in consequence, break the force of the objection urged against the sufficiency of the writ on account of such defective description.

As to the practice governing objections and exceptions to the findings, reports, and assessments of specially organized tribunals, see the cases of Beeber v. Bevan, 80 Ind. 31; Roush v. Emerick, Id. 551; Coulter v. Coulter, 81 Ind. 542.

The judgment is reversed, with costs, and the cause is remanded, with instructions to sustain the motion to quash the writ for the assessment of the damages.

(108 Ind. 551)

LOUISVILLE, N. A. & C. Ry. Co. 0. JONES. .

(Supreme Court of Indiana. December 14, 1886.) 1. NEGLIGENCE-COMPLAINT-DEMURRER.

Negligence may be pleaded generally; and, where a complaint characterizes the act complained of as having been negligently and carelessly done, it will not be

bad, on demurrer, for want of more specific averments on that point. 2. SAME-RAILROADS—CAR LEAVING TRACK-PRESUMPTION OF NEGLIGENCE.

When, in an action against a railroad coni pany for negligence, it appears that the plaintiff, while a passenger upon one of its trains, was injured by the car in which he was seated leaving or being thrown from the track, a presumption of negligence arises against the railroad company, which can only be rebutted by proof that the

casualty resulted from inevitable or unavoidable accident.1 8. APPEAL-WEIGHT OF EVIDENCE-No REVERSAL.

The supreme court will not reverse a judgment upon the weight of conflicting

evidence. 4. TRIAL--EVIDENCE-OBJECTIONS TO.

Objections to the admission of evidence must state specific grounds of objection. 6. SAME-QUESTION MAY BE COMPETENT, ALTHOUGH ANSWER INCOMPETENT.

Where, upon the examination of a witness, a question is asked calling for a certain conversation, and is objected to upon the ground that the "conversation was in no way connected with anything that occurred at the accident,” the court being unable to tell whether it was or not until the question is answered, there is no error in overruling the objection; if the answer should be incompetent, it could be

stricken out on motion. 6. NEGLIGENCE-RAILROADS-EVIDENCE AS TO RATE OF SPEED.

Where negligence is charged against a railroad company in the running of a train at a high and dangerous rate of speed, witnesses who saw the train at a point one and a half miles from the place where the accident occurred, may, where it is shown by others that the rate of speed continued the same, state the rate at the

point where they observed the train. 7. APPEAL-AVAILABLE ERROR-INSTRUCTIONS-INACCURACY.

An instruction should be taken as a whole, and in connection with the other instructions in the case; and if, when so taken, the law of the case is correctly stated,

an inaccurate expression in the particular instruction will not be available error. B. NEGLIGENCE-RAILROADS-PRESUMPTION-BURDEN ON COMPANY TO SHOW HIGHEST DE

GREE OF PRACTICAL SKILL AND CARE.

In an action against a railroad company for negligence, an instruction that, when the plaintiff has shown that the car left the track without fault on his part, “it devolves on the defendant to explain how the accident happened,” is inaccurate. It may be impossible to explain how the accident happened, but the defendant, in order to overcome the presumption of negligence, and exonerate itself from liability in such case, must show that it had employed the utmost skill, prudence, and circumspection practically and usually applied to railroad carrying, and that the cause of the accident was not, and could not reasonably have been, discovered and guarded against.

.See note at end of caso.

"Rehearing denied.

9. DAMAGES–DISEASED PERSON MAY RECOVER FOR ADDITIONAL INJURY.

A party diseased before the happening of an injury resulting from the negligence of a railroad company, may recover for an aggravation of the disease caused

thereby. 10. NEGLIGENCE-RAILROAD-RATE OF SPEED.

In an action by a passenger against a railway company for an injury received by a car leaving the track through its alleged negligence, an instruction that it has a right to propel its trains over its track at such speed as it sees fit, and that no rate of speed is negligence per se, is in proper. Appeal from circuit court, Lawrence county.

Geo. W. Friedley, for appellant. M. S. Mavity, Wm. J. Throop, M. F. Dunn, and Hill & Lamb, for appellee.

ZOLLARS, J. It is alleged in appellee's complaint that in June, 1882, appellant was the owner of a railroad, and employed as common carrier, in transporting passengers over the same for hire; that in that month she purchased a ticket from its agent at Orleans, in this state, by virtue of which, the consideration paid therefor, and the contract and agreement made by appellant, she became entitled to be safely and securely carried from Orleans to Greencastle Junction; and that, possessing the ticket so purchased, and in pursuance of the agreement of appellant, she went upon one of its regular passenger trains at Orleans, and into a passenger coach forming a part of that train, to be carried from that station to Greencastle Junction.

That portion of the complaint which alleges appellee's injuries, and charges appellant with negligence, is as follows: “And the said defendant ran its said train carelessly and negligently, at a high, unusual, and dangerous rate of speed, to-wit, at the rate of 50 miles an hour; that said rate was not only dangerous on said road to the life and limbs of all the passengers on said train, but that said train was thus carelessly, negligently, and rapidly run on a down grade, without applying the brakes, as should have been done, and over a defective and insufficient track, and over defective and insufficient rails, and over rails not properly spiked to the cross-ties, and over decayed, rotten, and defective cross-ties, and over curves not properly elevated; and said defendant carelessly and negligently ran said train, at said high and dangerous rate of speed, by pulling the same with a defective and insufficient locomotive, and with a locomotive that was not suitable for and sufficient to draw a passenger train at such high rate of speed,-by reason of all of which acts of carelessness and negligence on the part of said defendant, so done and committed, and without any fault or negligence on the part of this plaintiff, said cars were at and in the said county of Lawrence and state of Indiana, by said defendant, its agents and employes, so carelessly and negligently run and managed as to throw said train, and the locomotive thereto attached, from said road, down a high embankment, among the trees and bushes, and against the ground suddenly, while running at the high rate of speed aforesaid, and turned the car in which plaintiff was, over on its side. And the plaintiff avers that by reason of said sudden and immediate derailment, and by the turning of said car on its side, and without any fault or negligence on her part, and while she was in her seat in the said coach, where she had a right to be, she was suddenly carried over said embankment with said coach and train, 30 or 35 feet, among said trees and bushes, and against the ground aforesaid; that by reason of said great speed, and the derailment and turning over of said coach, the plaintiff was hurled forward against the seat, and upon the cornice and braces of the top part of said coach, and struck her head against said cornice and braces with great force, which shocked her, and rendered her insensible, and injured her head and eye; that by reason of the aforesaid high rate of speed, and by the overturning of the said coach, other passengers therein were thrown violently upon this plaintiff, without any fault or negligence of hers, and she was greatly injured by said passengers

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