31 Ind. App. 597 | Ind. Ct. App. | 1903
The appellant lias questioned in this court the jurisdiction of the court below, in which its application for the removal of the cause to the circuit court of the United States for the district of Indiana was denied. The appellee sued as administratrix of the estate of Thomas J. Eyan, deceased, to recover damages for causing his death by negligently running a locomotive engine and tender against him on a street crossing in the city of Chicago, Illinois. There were two paragraphs of complaint, in each'of which the damages were laid in the sum of $2,000, and at the close of each paragraph the appellee, in the same language, demanded judgment for that amount, and all other and proper relief in the premises.
In the verified petition for removal the appellee was said to be a citizen and resident of this State, and the appellant was alleged to be a corporation duly incorporated under the laws of another state named, and a citizen thereof, having its principal office there; and it was claimed in the petition that the matter in dispute, exclusive of interest and costs, exceeded the sum or value of $2,000.
’ It is suggested as a reason why, upon the filing of the petition and bond, the cause should have been removed, that the aggregate of the damages demanded in the complaint was $4,000. We can not accept this view. It is manifest that in each paragraph the same person in the saíne right seeks damages for the death of the same person wrongfully caused by the appellant’s servants, and that each paragraph relates to the same time and place and the same occurrence. While each paragraph, purports to set up a cause' of action independently, there could not be a recovery for the aggregate amount of the damages demanded in both paragraphs. There could be a recovery only for one death, the damages from which the appellee-did not claim to be greater than $2,000, to which amount her damages would necessarily be limited. “By matter in dispute is meant the subject of litigation — the matter for which the suit
There were not several caxises of action arising out of one transaction or occui’rence, but a single cause of action, though stated somewhat differently in the different paragraphs. Brownell v. Pacific R. Co., 47 Mo. 239. If the plaintiff in such case should obtain in his favor eitkér a general verdict, or a verdict on one count, this would bar a further l’ecovery for the death of the intestate. The amount in dispute was not modified by the formal prayer for all other and proper relief in the premises, there being no proper relief other than the pecuniary remedy demanded. Baltimore, etc., R. Co. v. Worman, 12 Ind. App. 494.
The appellant, in its brief, refers to a statute of Illinois, which is set out in each paragraph of the' complaint, authorizing sxxch suit brought by and in the name of the personal representatives of the deceased person, it being provided that the amount recovered shall be for the exclxxsive benefit of the widow and next of kin, and the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of the
Under an assignment of error assailing the complaint as insufficient, counsel for the appellant base the objection especially upon the absence of averments showing that the deceased exercised due care, and cite 'many decisions, the applicability of which as furnishing a rule of pleading has ceased because of our statute relieving the plaintiff in such case of the burden of showing want of contributory negligence on the part of the person injured or killed. It is no longer necessary in such case to .allege .in the com
In this connection it is claimed, also, that a statute of Illinois relating to the providing and using of whistles and bells on locomotive engines, set out in both paragraphs of the complaint, and an ordinance of the city of Chicago concerning the maintenance by railroad companies of gates at street crossings, set out in the second paragraph of complaint, relate only to the remedy in Illinois, and that to permit such statute or ordinance to affect the remedy in this case would be giving them extraterritorial effect, which they do not possess, as the law of Indiana governs the remedy, citing Smith v. Wabash R. Co., 141 Ind. 92. Counsel perhaps misapprehended the decision cited, which is to the effect that a statute of another state concerning the presumption of negligence pertains to the remedy and can not have extraterritorial force.
“The quantity or degree of evidence requisite to sustain an action or to change the burden of proof is determined by the law of the forum, and not by the law of the place where the cause of action arose. It belongs not to the law of rights, but the law of remedy.” Richmond, etc., R. Co. v. Mitchell, 92 Ga. 77, 18 S. E. 290; Pennsylvania Co. v. McCann, 54 Ohio St. 10, 42 N. E. 768; Smith v. Wabash R. Co., supra; Elliott, Railroads, §1365.
The cause of. action for the recovery of damages for pecuniary loss resulting from the death of the appellee’s intestate by the negligence of the appellant, the right to recover having accrued in another state, under a statute similar in import and character to one in force in this State, was in the nature of a transitory cause of action, and the right to maintain the action was not confined to the state where the negligence complained of occurred, though in ^such an action instituted in this State such statute of the sister state must be pleaded and proved, inasmuch as our courts can not take judicial notice thereof. Burns v. Grand
It is urged that the court erred in refusing to grant the appellant’s prayer for an appeal in term time. The petition for the removal of the cause was filed in the same vacation in which the complaint was filed. At the term, the appellant, as appears from the record, entered its special appearance for the purpose of objecting to the further taking of jurisdiction of the cause. The court having overruled the objection, and the appellant, still appearing specially, having excepted to this ruling, it then refused to .appear further in the cause, or to enter any appearance therein; whereupon the appellant was defaulted, and the cause was submitted to the court for trial. On the same day, after finding and judgment, the appellant appeared for the purpose only of praying an appeal to the Supreme' Court, and tendered an appeal bond; and the prayer for
Some days after the rendition of judgment by default, the appellant moved the court to set aside the default and judgment on account of alleged inadvertence and mistake of one of the appellant’s attorneys. In overruling this motion there was no error. The attorney refused to appear and purposely suffered a default, and, under well-settled practice, there was no sufficient reason set forth in his affidavit for opening up the case. If he failed to follow directions from his superior, as seems to be claimed, no reason is shown therefor other than that he discovered after the rendition of the judgment that he had inadvertently overlooked or misunderstood instructions, which, as stated, required him to enter objections and appearance, and to pray an appeal and |3erfect the same, in case of necessity, and to do all such necessary acts to accomplish the defense of the company in the trial of the cause, and which, it is stated, did not authorize the attorney to enter a special appearance in the cause. No reason for misunderstanding such instructions is apparent, and to have inadvertently overlooked
Judgment affirmed.