Davis v. Reamer et al.

tories submitted to them at the request of the parties respectively.

In response to interrogatories addressed to them, at the request of the appellant, the jury answered substantially : First. That the appellant was the owner of the barouche at the time it was lost.

Second. That the barouche was worth $200.

Third. That neither Reamer nor Hurley did anything to make the barouche secure after it was placed between the two open doors of the wharf-boat.

Fourth. That neither Reamer nor Hurley said or did anything to prevent young Kepley and his assistant from removing the barouche from the place at which it was stored on the wharf-boat.

Fifth. That neither Reamer nor Hurley did anything towards having the barouche taken from the wharf-boat and delivered upon the adjacent landing.

Sixth. That if either Reamer or Hurley had arranged to have the wheels of the barouche chocked after it was brought out and placed between the doors of the wharf-boat, it would probably not have been lost overboard.

Seventh. That Philip M. Kepley expressly directed his son Charles to let the buggies and barouche alone, until the charges upon them were paid, and everything was arranged for their removal.

Eighth. That it was not shown that young Kepley had any authority to remove the buggies and barouche from the wharf-boat.

Ninth. That neither Reamer nor Hurley inquired as to the authority of young Kepley to remove the buggies and barouche from the wharf-boat.

Tenth. That the only authority which Philip M. Kepley had from Anderson was "to receive the carriages or buggies from the landing and save the expense of storage or wharfage."

Eleventh. That, in the opinion of the jury, Philip M. Kep

Davis v. Reamer et al.

ley had no authority to receive the buggies and barouche from the wharf-boat.

Twelfth. That neither Philip M. Kepley nor the plaintiff ever received the barouche from the appellees.

In response to interrogatories submitted to them, at the request of the appellees, the jury answered, in effect:

First. That Philip M. Kepley was authorized by Anderson, as the agent of the appellant, to receive the buggies and barouche in controversy and to store them in his livery stable.

Second. That Philip M. Kepley was, at the time of the arrival of the buggies and barouche, the keeper of a livery stable, and that his son Charles A. Kepley was his agent and general manager, and man of business in his absence.

Third. That Charles A. Kepley, as the agent and representative of Philip M. Kepley, went upon the wharf-boat and proceeded to put the buggies and barouche into a condition to be removed.

Fourth. That the barouche was lost overboard in consequence of the acts and negligence of Charles A. Kepley and

his assistants.

Fifth. That there was no evidence as to whether Philip M. Kepley denied the authority of his son to receive the barouche after notice of its loss.

Sixth. That Philip M. Kepley made no objection to anything that was done by his son, or the men who worked with him.

Seventh. That the appellant resided in Cincinnati.

Eighth. That it was not shown in what business the appellant was engaged.

Ninth. That all the remaining buggies were taken to Kepley's livery stable after the barouche was lost.

Tenth. That the same persons who prepared the barouche for removal, also prepared the buggies for removal and removed them accordingly.

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Davis v. Reamer et al.

Eleventh. That the barouche was lost through the negligence of Charles A. Kepley.

Twelfth. That the loss of the barouche was occasioned by the acts of those representing Philip M. Kepley in the removal of the vehicles.

Thirteenth. That Anderson, as the agent of the appellant,. made no objection to anything that was done by Charles A. Kepley concerning either the buggies or the barouche.

Fourteenth. That they, the jury, did not know what was the immediate cause of the loss of the barouche.

Upon a return of the verdict the appellant moved for judgment in his favor upon the answers of the jury to the special interrogatories, upon the ground that some of those answers were inconsistent with the general verdict, but that motion being overruled, he then moved for a new trial, and that motion was also denied. These rulings were succeeded by an entry of judgment for the appellees upon the general verdict.

It is claimed that as the jury found that Philip M. Kepley had authority only to receive the vehicles at, and to take them from the "landing," he necessarily had no authority to take charge of them at the wharf-boat, and that, consequently, Charles A. Kepley, who assumed to represent his father in taking control of the barouche at the wharf-boat, was nothing more than a volunteer and an intermeddler, for whom the appellant was in no manner responsible. We regard this argument as based upon a distinction which involves no substantial difference. It is a matter within the common knowledge of all men that a wharf-boat, stationed and used at a particular wharf, is for all the purposes of commerce a part of the wharf itself, so long as it continues to be so stationed and used. It constitutes one of the landing facilities at the wharf, and the landing of a vessel along-side of and against such a wharf-boat is, in legal contemplation, a landing at the wharf to which it is attached.

The conclusion of the jury that, in their opinion, Philip

Davis v. Reamer et al.

M. Kepley had no authority to take the buggies and barouche from the wharf-boat was, therefore, in view of their preceding and other findings of facts, more a conclusion of law than the finding of a fact, and hence was not substantially inconsistent with the general verdict. Indianapolis, etc., R. W. Co. v. Bush, 101 Ind. 582.

As a careful examination of all the answers to the special interrogatories will disclose, those seemingly inconsistent with the general verdict are antagonized by other answers which fully sustain the general verdict. Under such circumstances the answers, considered as they ought to be as a whole, can not be either accepted or treated as inconsistent with the general verdict. Hereth v. Hereth, 100 Ind. 35.

In one of its instructions to the jury the circuit court assumed to state the substance and effect of the testimony of some of the witnesses upon a given point involved at the trial. This, under our practice, was technically erroneous, but, taken in connection with all the other proceedings at the trial, we think no material injury was thereby inflicted upon the appellant. Ball v. Cox, 7 Ind. 453; Barker v. State, 48 Ind. 163; Cunningham v. State, ex rel., 65 Ind. 377.

The general verdict appears to us to have been right upon the evidence. We, consequently, feel constrained to treat the error in question as only an abstract error, not affecting the substantial rights of the appellant.

Questions were reserved, and have been urged here, upon other instructions given by the circuit court, but, believing that what we have already said fairly disposes of the cause upon its merits, we deem it unnecessary to enter upon a review of any of the other instructions given at the trial. The judgment is affirmed, with costs.

Filed Feb. 10, 1886.

McNeely et al. v. Holliday.

No. 12,812.

MCNEELY ET AL. v. HOLLIDAY.

MARION SUPERIOR COURT.-Parties not Appealing to General Term can not Appeal to Supreme Court.-Dismissal of Appeal.—Where parties, against whom judgment is rendered in the Marion Superior Court at special term, do not join in an appeal to the general term of such court, they are not parties to the judgment of the court in general term, and an appeal by them from such judgment to the Supreme Court will be dismissed.

SAME.-When Appeal will Lie from Judgment at Special Term to Supreme Court.-No appeal will lie from the judgment of the Marion Superior Court at special term, directly to the Supreme Court, except where some of the judges of the general term are shown to be incompetent, and then only when an appeal is perfected within one year from the rendition of the judgment. Section 1362, R. S. 1881.

SUPREME COURT.—Bill of Exceptions.—Omission of Evidence.—The Supreme Court will not consider or decide any question which depends for its decision on the evidence in the cause, where the bill of exceptions shows affirmatively that it does not contain all the evidence.

From the Marion Superior Court.

R. D. Logan, for appellants.

T. L. Sullivan and A. Q. Jones, for appellee.

Howk, J.-It is shown by the record of this cause that, on the 18th day of October, 1884, in the court below, at special term, in an action then and there pending, the appellee, Lucy R. Holliday, as sole plaintiff, recovered a judgment and decree against Catharine D. McNeely, James H. McNeely and John H. McNeely, as defendants, for the amount due on certain notes and for the foreclosure of a mortgage on real estate given to secure such notes. It is further shown that on the same day Catharine D. McNeely alone filed a motion for a new trial, which was then and there overruled by the court, and that she alone, on the 17th day of November, 1884, appealed from the judgment at special term, and assigned errors in general term. The record further shows, that, on the 8th day of January, 1885, the judgment of the court at special term was affirmed by the court in general term.