43 Ind. App. 560 | Ind. Ct. App. | 1909
Appellant brought this action against appellee to recover damages for the alleged negligent killing of Will
Appellee answered the complaint in two paragraphs, one in denial, the other averring a compromise and settlement with the decedent for all claims by reason of the injuries so sustained by him. The contract of settlement was in writing, and was made a part of the answer. To said affirmative paragraph of answer a reply in eight paragraphs was filed. The first was a denial. The fifth and sixth were withdrawn. The second paragraph was a partial reply, and related to that part of the answer averring the payment df $500 for care and treatment of the decedent. The other paragraphs alleged a tender and offer to return to appellee the money paid by it to the decedent on account of the alleged compromise set up in the answer, and also alleging that, at the time of said compromise and settlement, said decedent was, as appellee well knew, a person of unsound mind, and incapable of understanding and knowing the nature and consequence of the pretended settlement. No cquestion as to any one of these paragraphs is presented. The cause was twice tried. The first trial resulted in a verdict in favor of appellant. On November 28, 1905, appellee’s mo-tiro for a new trial was sustained. On December 7, 1905,
The record purports to contain three bills of exceptions. The first is said to include a copy of all the pleadings and order-book entries up to and including the granting of appellee’s motion for a new trial. The second bill is said to include all of the evidence given at the first trial. The third includes the evidence introduced and rulings of the court at the second trial.
Appellee insists that neither the second nor the third bill of exceptions is properly a part of the record.
Again looking to the record, Ave find that on February 22, 1906, and during the time first given, at the request of appellant, the time for filing bill of exceptions number two Avas extended to June 10, 1906. On May 24, 1906, and AA'ithin the limit of the first extension, upon the petition of appellant, the time for filing said bill of exceptions number t\Ao was extended until July 25, 1906. On July 24, bills of exceptions numbered tAvo and three were presented to the trial judge for settlement and signature, and the same AAere taken under advisement until October 11, 1906, when they Arere signed and ordered made a part of the record, and both AA'ere filed with the clerk of the Tipton Circuit Court on October 12, 1906. The dates and action of the judge relativc to said bills appear from the order-book entries, except the date when said bills were presented to the trial judge, and that date is stated in each of the bills.
It has been suggested that the order-book entry of the filing of the application by the appellant for the second extension, and the order of the court granting such extension, show that the parties by counsel were present at the time the order was made, and no objection or exception to the action of the court was taken, and for that reason appellee waived its right thereafter to object to the court’s action in the premises. We cannot concur in this conclusion. Such an order-book entry, at best, could not be construed as showing more than a mere consent on the part of the appellee to the making of the order. The validity of the order depended upon the power of the judge to make it, and not upon the consent of the parties. The statute, as we have said, has reference to an extension of time based upon an application made to the judge within “the time first given.” The principle applicable here is not unlike that enforced in Lengelsen v. McGregor, supra, where it is said: “After the expiration of the time allowed, the judge loses jurisdiction over the subject-matter, and cannot be reelothed with it by agreement of the parties.” Bill number two is not properly a part of the record.
It is assigned that the court erred in overruling appellant’s motion for a new trial. The reasons in support of the motion, and not waived, are that the verdict of the jury is not sustained by sufficient evidence; that it is contrary to law; and that the court erred in instructing the jury to return a verdict for appellee.
As the record comes to us, and as argued by counsel, the question is: Was the alleged negligence of appellee the proximate cause of decedent’s death, and is the evidence such as to make the question one of law?
Appellant’s theory is stated as follows: “That the decedent received certain injuries on account of appellee’s negligence; that these injuries produced insanity, and that this insanity produced his death by suicide, thus making the negligence of appellee the proximate cause of death. ’ ’
In Lake Erie, etc., R. Co. v. Charman (1903), 161 Ind. 95, 103, it is said: “And that cause will be held proximate which is shown to be active, operative, and continuing, and the probable and natural source of the injury;, that is to say, where the secpienee or injury complained of under the circumstances of the case is such as might and ought to have been foreseen by a person of ordinary sagacity as a probable result of the thing done, it will be deemed the responsible or proximate cause.”
In Daniels v. New York, etc., R. Co. (1903), 183 Mass. 393, 67 N. E. 424, 62 L. R. A. 751, was an action to recover damages for the death of plaintiff’s decedent, caused by a collision with an engine and cars of the defendant at a grade crossing. The facts, as stated by the court, are that he received a blow on the head and other injuries at the time of the accident, August 12, 1899, and he died October 3. His mind was clear for several weeks after the accident, but after that he showed symptoms of insomnia and restlessness, and began to suffer from severe attacks of headache, was melancholy, and at times delirious. The autopsy after
Judgment affirmed.