MOWES et al. v. ROBBINS. (No. 9603.) (Appellate Court of Indiana, Division No. 1. June 21, 1918.) 1. FRAUD 59(2) — MEASURE OF DAMÅGES · SALE OR EXCHANGE. The measure of damages for fraud in sale or exchange of property is the difference between the value of the property received by the defrauded party and its value as represented. 2. FRAUD 61-EXEMPLARY DAMAGES. Exemplary damages are recoverable in action for fraud. 3. APPEAL AND ERROR 1068 (4)-HARMLESS ERROR-INSTRUCTIONS. The jury in an action for fraud in exchange of horses, though finding that the mare received by plaintiff was worth nothing, not having found her value as represented, it does not affirmatively appear that giving the erroneous instruction that the measure of damages was the difference between the value of the horses was not harmful to defendants. his said business in the sum of $100; that he has been put to great expense in caring for and keeping said mare-all to his damage in the sum of $400. The complaint was answered by a general denial and by a special answer in which appellants alleged they had only owned the sorrel mare two days, and did not know she was diseased nor conceal that fact from the plaintiff; that they informed him they did not know whether she was or was not sound, and traded the mare on a day's trial; that plaintiff agreed to return the mare on the evening of the day the trade was made if not satisfactory, and he did not return her or offer so to do at any time. To the second paragraph of answer appellee filed a reply in general denial. A trial by jury resulted in a verdict for plaintiff in the sum of $146.25. Judgment 4. APPEAL AND ERROR 1140(4)-REMISSION was rendered on the verdict. Appellants' OF PART OF RECOVERY. motion for a new trial was overruled upon appellee's entering of record a remittitur in the sum of $50 at the suggestion of the trial court. The error relied on for reversal is the overruling of appellants' motion for a new trial. A new trial was asked on the ground that the verdict of the jury is not sustained by sufficient evidence, the damages are excessive, and error in the giving of certain instructions to the jury. [1] By instruction 7 the court informed the jury: Action by Jessie Robbins against Henry That, if they found for the plaintiff, the Mowes and others. Judgment for plaintiff, "measure of his damages would be the differand defendants appeal. Reversed, with in-ence between the value of the horse plus $5, if structions. Carl Humble, of Indianapolis, for appellants. Raymond F. Murray, of Indianapolis, for appellee. FELT, P. J. Appellee brought this suit to recover damages for fraud in a horse trade. the plaintiff paid it to the defendants, and the value of the horse, if any, that the defendants traded to the plaintiff, plus any necessary expenses of keeping that horse caused by reason of the fraud perpetrated upon the defendants, in case you find for the plaintiff." · Appellants contend that this instruction is erroneous, in this, that it informed the jury that, in the case the plaintiff was entitled to recover, the measure of his damages was the difference between the value of the mare he obtained from appellants and the value of the horse and money he gave in exchange for such mare. The complaint proceeds on the theory that appellee retained the sorrel mare and sued to recover the damages sustained by reason of the fraudulent representations as to her value. The substance of the complaint shows that on February 19, 1915, appellants traded appellee a sorrel mare for a horse then owned by him; that appellants falsely and fraudulently represented said sorrel mare to be sound, but she was then and there diseased with "heaves," which fact the defendants knew and concealed from appellee by the use of a drug; that plaintiff relied on the representation that the mare was sound, and believed it to be true, and did not know the mare was so diseased, and was thereby induced to give his said horse and $5 in money for said mare; that said mare has continued to be so afflicted; that plaintiff was at the time of said trade a gardener, and bought said mare for work in that business, all of which was known to defendants; The law presumes that the purchaser has that said mare was and is wholly unfit for paid for the property as represented, and work because of said disease, and on ac- that he is entitled to his bargain, if it be count thereof plaintiff has been damaged in a bargain, and in the absence of fraud must In this state, and generally, the rule for the measure of damages for fraud in the sale or exchange of property is the difference in the actual value of the property received by the party alleged to have been defrauded and the value of such property at the time had it been as represented to be by the vendor. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes. abide by the result, though he may have paid | passage of the mare; that they represented more for the property obtained than it was to appellee that they knew that the mare worth. Booher v. Goldsborough, 44 Ind. was sound. There was also evidence tend490-503; Nysewander v. Lowman, 124 Ind. ing to show that snuff had been placed in 584-589, 24 N. E. 355; Williamson v. Bran- said sponge, and that appellee expended denberg, 133 Ind. 594-598, 32 N. E. 834; about $4 for medical treatment and exCrist v. Jacoby, 10 Ind. App. 688-690, 38 pense of keeping the mare before he ascerN. E. 543; Brier v. Mankey, 47 Ind. App. tained the fraud that had been perpetrated 7-12, 93 N. E. 672; 11 Sedgwick on Damages upon him. On these facts the jury was (9th Ed.) §§ 762, 777; 20 Cyc. pp. 130-132. justified in assessing punitive as well as The fundamental rule in assessing damag- compensatory damages. es for breach of a contract or for a tort is that the injured party shall have fair and just compensation for the injury sustained. Circumstances may warrant the assessment of punitive or exemplary damages in tort cases. The damages recoverable in any case must be susceptible of ascertainment, and should not include elements that are uncertain, contingent, or speculative. In tort cases the wrongdoer is liable for all damages which naturally and proximately result from the wrong done. Coy v. Indianapolis Gas Co., 146 Ind. 655-663, 46 N. E. 17, 36 L. R. A. 535; Cincinnati, Hamilton & Indianapolis R. Co. v. Eaton, 94 Ind. 474-479, 48 Am. Rep. 179; 8 R. C. L. § 8, p. 431; 8 R. C. L. § 23, p. 453. [2] The action here is based upon fraud, and the injured party in addition to compensatory damages may recover exemplary or punitive damages. Wheatcraft v. Myers, 57 Ind. App. 371-374, 107 N. E. 81; 8 R. C. L. §§ 128-132, pp. 579–588. There was proof tending to show special damages, by way of expenses in having the mare examined by a veterinary surgeon, and for keeping her until the alleged fraud was discovered, aggregating about $4. The instruction is erroneous in its statement of the rule for the measure of damages as above shown, and is also somewhat ambiguous in referring to "the fraud perpetrated upon the defendants," whereas the action is based upon fraud alleged to have been perpetrated by the defendants upon the plaintiff. [3] However, appellee contends that, even though the instruction be erroneous, the facts found by the jury in answer to interrogatories show that it was not harmful to appellants. The jury returned a verdict for $146.25, and the court conditioned the overruling of the motion for a new trial on appellee's entering a remittitur of $50, which was done. The judgment therefore stands for $96.25. In answer to interrogatories the jury found that the mare appellee obtained was of no value at the time of the trade, and that the horse appellants obtained from him was worth $75, and that appellee paid appellants $5 in money. The jury also found that the sorrel mare at the time of the trade was afflicted with "bull heaves," and that the defendants knew that fact at the time; that they concealed the fact from appellee with a sponge inserted in the nasal However, in order to ascertain the darnages appellee was entitled to recover, on the theory of this case, it was necessary to prove the actual value of the sorrel mare at the time of the trade and her value at the time had she been as represented by appellants. The jury found that the mare was of no value at the time of the trade, but failed to find her value had she been as represented. The record therefore fails to disclose one of the elements essential to the determination of the damages, if any, sustained by appellee. We cannot therefore hold that the record affirmatively shows that the erroneous instruction was not harmful to appellants. [4] Appellee also suggests that in case the court finds the instruction to be erroneous and harmful a reversal may be avoided by entering a remittitur of the excessive portion of the judgment. The facts of record afford no definite basis for determining the amount, if any, that should be remitted, and, in the absence of such facts, it would be a matter of speculation or guessing to which the court may not resort to avoid a reversal. [5] Appellants also claim that instruction 4 is erroneous for not informing the jury that appellee, to recover, must prove the elements of intention, knowledge, and concealment on the part of appellants in relation to the alleged fraudulent representations. The instruction in substance informed the jury that, if the defendants represented the horse to be sound, and the evidence proved that it was unsound by reason of the disease as alleged, and that plaintiff relied upon those representations, and was thereby induced to make the trade, they might find for the plaintiff, but, if such facts were not proven, they should find for defendants. ́ The instruction was not erroneous. It was based upon the proposition that, where a party assumes to know a material fact and states it as such, to induce another to act, and he does rely and act thereon to his damage, the party who assumes to know, and states the proposition as a fact, cannot relieve himself from liability by showing that he did not know such fact or intend the injurious consequences of his statement so made. Maywood Stock Farm v. Pratt, 60 Ind. App. 131, 110 N. E. 243-246, and cases cited. For the error in the instruction as to the measure of damages, the judgment is re-vision, Third Department. versed, with instructions to the lower court to sustain appellants' motion for a new trial. Appeal from Supreme Court, Appellate Di (224 N. Y. 30) DOEY V. CLARENCE P. HOWLAND CO., Claim under the Workmen's Compensation Law by Margaret Doey, for herself and children, for the death of Patrick Doey, employé, against the Clarence P. Howland Company, Incorporated, employer, and the Massachusetts Bonding & Insurance Company, insurance carrier. From an order of the Appel Appeal of STATE INDUSTRIAL COMMIS-late Division (182 App. Diy. 152, 169 N. Y. SION. (Court of Appeals of New York. June 4, 1918.) 1. ADMIRALTY 10-MARITIME CONTRACTS. In determining whether a contract be of maritime nature, locality is not controlling; the true test being the subject-matter of the contract, the nature and character of the work to be done. 2. ADMIRALTY 18 MARITIME TORTS. In cases of tort admiralty jurisdiction depends solely upon the place where the tort was committed, which must have been upon the high seas or other navigable waters. 3. MASTER AND SERVANT 346-WORKMEN'S COMPENSATION-AWARD. Supp. 645) reversing by divided court, an order of the State Industrial Commission, the Commission appeals, Affirmed. Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), and Jeremiah F. Connor, of Oneida, for appellant. Merwyn H. Nellis, of Albany, for respondents. MCLAUGHLIN, J. On the 31st of July, 1916, Patrick Doey, an employé of Clarence P. Howland Company, Incorporated, while engaged in making repairs on the steamship, Normandie, lost his life by falling down & hatchway. His widow, on behalf of herself and infant children, filed a claim with the State Industrial Commission, under chapter 41 of the Laws of 1914, for compensation for his death. The commission recognized the An award under Workmen's Compensation Law (Consol. Laws, c. 67), is not made on the theory that a tort has been committed, but upon the theory that the statute giving the commission power to make an award is read into and becomes a part of the contract of employment. 4. ADMIRALTY 20-INJURY TO EMPLOYÉ. validity of the claim and in March, 1917, The claim of a carpenter against his employ-made an award directing that the same be er, engaged in making alterations on a ship in satisfied by weekly payments. The employer navigable waters to fit it for a cargo of grain, and insurance carrier acquiesced in the is within the jurisdiction of admiralty to the exclusion of the State Industrial Commission, in view of Const. U. S. art. 3, § 2, extending the judicial power of the United States to all cases of admiralty and maritime jurisdiction, and Judiciary Act Sept. 24, 1789, c. 20, & 9, 1 Stat. 76, continued in Judicial Code (Act Cong. March 3, 1911, c. 231, 36 Stat. 1091, 1160 [Comp. St. 1916, 88 991, 1233]) §§ 24 and 256, by which the District Courts of the United States are given exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction. 5. JUDGMENT 489 COLLATERAL ATTACK -JURISDICTION. - A court authorized by statute to entertain jurisdiction in a particular case only, if it undertakes to exercise jurisdiction in a case to which the statute has no application, does not acquire jurisdiction and its judgment or determination when made is a nullity, and will be so treated whenever questioned by either direct or collateral attack. 6. JUDGMENT JURISDICTION. 489-COLLATERAL ATTACK Lack of jurisdiction to render a judgment may be asserted at any time; the only exception being where jurisdiction depends upon a question of fact litigated and determined in the judg ment. award until May 21, 1917, when the Supreme 7. Master and SERVANT 397-WORKMEN's cases, the right of a common-law remedy, COMPENSATION-JURISDICTION-WAIVER. where the common law is competent to Where, although the federal courts had exclusive jurisdiction over a claim for employe's give it." death occurring in performance of a maritime contract, the State Industrial Commission as sumed to make an award therefor under the Workmen's Compensation Law, the fact that both employer and insurance carrier acquiesced in the award to the extent that certain payments were made thereunder, and no appeal was taken therefrom, did not estop them thereafter from questioning the commission's jurisdiction; the award being a nullity, After these decisions had been rendered the employer and insurance carrier moved to vacate the award, on the ground that the State Industrial Commission did not have jurisdiction to make the same. The application was denied and an appeal then taken to the Appellate Division, where the determination of the commission was, by divided court, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes reversed, and the award vacated. From this order the Industrial Commission appeals to this court. Two questions are presented: others to do it for him. Doey's contract of employment was just as much of a maritime nature as was that of his employer. Any (a) Was doubt that might have existed that an emDoey, at the time of his death, engaged in ployé of a contractor to load a ship is, while the performance of a maritime contract? (b) thus engaged, in the performance of a mariIf so, were the respondents, after having rec-time contract, was settled by the decision in ognized the validity of the award by mak-Atlantic Transport Co. of W. Va. v. Imbrovek, ing payments thereon and not appealing supra. There, Mr. Justice Hughes, who detherefrom, in a position to question the juris-livered the opinion of the court, referring to diction of the commission? the work of a longshoreman, said: [1] If the first question be answered in the affirmative, then is necessarily follows from the decisions of the Supreme Court of the United States above referred to that the commission had no authority to make the award in question. In determining whether a contract be of maritime nature, locality is not controlling, since the true test is the subject-matter of the contract-the nature and character of the work to be done. Erie R. R. Co. v. Welsh, 242 U. S. 303, 37 Sup. Ct. 116, 61 L. Ed. 319. [2] In torts the rule is different. There jurisdiction depends solely upon the place where the tort was committed, which must have been upon the high seas or other navigable waters. Atlantic Transport Co. of W. Va. v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157. [3] An award under the Workmen's Compensation Law is not made on the theory that a tort has been committed; on the contrary, it is upon the theory that the statute giving the commission power to make an award is read into and becomes a part of the contract. Matter of Post v. Burger & Gohlke, 216 N. Y. 544, 111 N. E. 351, Ann. Cas. 1916B, 158. The contract of employment, by virtue of the statute, contains an implied provision that the employer, if the employé be injured, will pay to him a certain sum to compensate for the injuries sustained, or, if death results, a certain sum to dependents. These payments are made irrespective of whether or not the employer was guilty of wrongdoing. It is a part of the compensation agreed to be paid for services rendered in the course of the employment. [4] In the present case, upon the conceded facts, I am of the opinion that Doey was, at the time he met his death, engaged in the performance of a maritime contract. His employer had taken a contract to repair an ocean-going vessel, preparatory to its taking on a cargo of grain. Doey was one of several carpenters employed to make the necessary changes. He was at the time he was killed engaged in such work on a steamship then in navigable waters. The contract to make the changes was certainly maritime in its nature. Preparing a steamship to receive a cargo is as much maritime in nature as putting the cargo on or taking it from the ship. Nor was the nature of the contract changed in any way because the contractor did not actually do the work himself, but employed "The libelant was injured on a ship, lying in navigable waters, and while he was engaged in the performance of a maritime service. We entertain no doubt that the service in loading and stowing a ship's cargo is of this character. Up-. on its proper performance depend in large measure the safe carrying of the cargo and the safety of the ship itself; and it is a service absolutely necessary to enable the ship to discharge its maritime duty. Formerly the work was done by the ship's crew, but, owing to the exigencies of increasing commerce and the demand for rapidity and special skill, it has become a specialized service devolving upon a class 'as clearly identified with maritime affairs as are the mariners.' 234 U. S. at page 61, 34 Sup. Ct. at page 735 [58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157). In Southern Pacific Co. v. Jensen, supra, the decedent was an employé of the Southern Pacific Company, a corporation organized under the laws of the state of Kentucky, where it had its principal office. It also had an office at pier 49, North River, New York City. It had a contract to unload a cargo from a steamship lying alongside that pier. Jensen, in the discharge of his duties to his employer, drove onto the steamship an electric truck, where it was loaded with lumber. He then started to drive the truck from the ship, and while it was on the bridge connecting the ship with the pier his head came in contact with a piece of timber, and he was killed. The court held, reversing this court, that the New York State Industrial Commission had no jurisdiction to make the award under the Workmen's Compensation Law of that state, since the contract which Jensen was performing was maritime in its nature. In Clyde Steamship Co. v. Walker, supra, the steamship company had taken a contract to unload a vessel. It employed Walker, a longshoreman, to assist in doing the work. while thus engaged he was injured. It was held, on authority of the Jensen Case, that at the time he received his injuries he was engaged in a maritime contract over which the admiralty courts had exclusive jurisdiction, that the New York State Industrial Commission had no authority to make the award and that the decision of this court in so holding was erroneous. In view of these decisions, I am unable to reach a conclusion other than that Doey, at the time he lost his life, was engaged in a maritime contract, and if this view be correct, then the Industrial Commission had no authority to make the award in question. This conclusion necessarily leads to the consideration of the second question. HISCOCK, C. J., and CHASE, COLLIN, and CUDDEBACK, JJ., concur. HOGAN and CARDOZO, JJ., concur in result. Order affirmed. ANDERSON v. JOHNSON LIGHTERAGE [5] I am of the opinion that the employer and insurance carrier were in a position to question the jurisdiction of the commission to make the award. The only authority it had to make the award was that derived from the statute. The power thus given was unknown to the common law, as well as the method of procedure. The rule is well settled that a court authorized by statute to entertain jurisdiction in a particular case only, Appeal of STATE INDUSTRIAL COMMISif it undertakes to exercise jurisdiction in a case to which the statute has no application, does not acquire jurisdiction, and its judgment or determination, when made, is a nullity, and will be so treated whenever called in question by either a direct or collateral attack. Risley v. Phenix Bank of the City of New York, 83 N. Y. 318, 38 Am. Rep. 421; State of Rhode Island v. Comm. Massachusetts, 12 Pet. 657, 9 L. Ed. 1233. [6] The general rule is that lack of jurisdiction to render a judgment or determination may be asserted at any time, and the only exception of which I am aware is where jurisdiction depends upon a question of fact. If that be litigated and determined, then the question is settled by the judgment, which becomes final and conclusive unless set aside by a direct attack or reversed on appeal therefrom. O'Donoghue v. Boies, 159 N. Y. 87, 53 N. E. 537; Ferguson v. Crawford, 70 N. Y. 253, 26 Am. Rep. 589. In all other cases where there is a lack of authority to hear and determine the subject-matter of the controversy, an adjudication is a nullity, and will be so declared at the instance of a party affected thereby. Matter of Will of Walker, 136 N. Y. 20, 32 N. E. 633. [7] The employer and insurance carrier therefore were not, in my opinion, estopped from questioning the jurisdiction of the commission. It had assumed to pass upon a subject over which the federal courts had exclusive jurisdiction. The fact that the determination of the commission had been acquiesced in to the extent that certain payments had been made thereunder and an appeal had not been taken therefrom could not prevent either of such parties raising the question at any time they saw fit. This follows from the fact that the determination was a nullity, It bound no one, It was a void determination. My conclusion is that Doey, at the time of his death, was engaged in the perform ance of a maritime contract; that the compensation commission had no power to make the award; and that the Appellate Division was right in reversing the determination and dismissing the claim. The order appealed from should be affirmed, with costs against the State Industrial Commission. SION. (Court of Appeals of New York. June 4, 1918.) ing. MCLAUGHLIN, J. The claimant, at the time he was injured, was a longshoreman in the employ of the Johnson Lighterage Company, which had a contract to load a vessel in navigable waters. While thus engaged he sustained an injury by slipping on a pier from which the cargo was being taken. He made a claim under the Workmen's Compensation Law, and the Industrial Commission allowed the same. Its award was reversed by the Appellate Division, the claim dismissed, and the commission appeals to this court. In my opinion, for the reasons stated by me in Matter of Doey v. Howland Co., Inc., 120 N. E. 53, decided herewith, Anderson, at the time he was injured, was engaged in performing a maritime contract. The Indus trial Commission therefore had no jurisdic tion to make the award; it was properly vacated by the Appellate Division, and the claim dismissed... The order of the Appellate Division therefore should be affirmed, with costs against the State Industrial Commission. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |