188 Ind. 334 | Ind. | 1918
Lead Opinion
— On application of the Chicago, Lake Shore and South Bend Railway Company, the Public Service Commission made an order directing that a physical connection should be constructed for the transfer of freight in carload lots between the lines of that company and the lines of the Chicago, Indianapolis and Louisville Railway Company at Michigan City, Indiana. The order contemplates the construction of an interchange track connecting the two lines of railroad, and provides that, in case the two companies should be unable to agree on a division of the costs, éither company might apply to the commission for an apportionment of the costs. Appellant filed an action against the appellee to have the order set aside and declared null and void. This action was tried in the Porter Circuit Court, and resulted in a judgment in favor of appellee. Appellant assigns as error that the trial court erred in overruling its motion for a new trial, which was based on the grounds that the decision of the trial court was not sustained by the evidence and was contrary to law.
In support of the assignment of error it is asserted by appellant that the location of the proposed connection and its situation with respect to the streets of the city and the existing railroad tracks render the construction of the connecting track unpractical and its operation dangerous. ' Upon this question there is evidence to sup
The judgment is reversed with instructions to sustain appellant’s motion for a new trial.
Rehearing
— On petition for rehearing, appellee complains of the action of this court in basing its opinion on the evidence without discussing a preliminary question presented by the briefs which, if decided in favor of appellee, would have precluded a consideration of the evidence on appeal.
4. In its brief in answer to the assignment of errors, appellee took the position that the bill of exceptions purporting to contain the evidence discloses on its face that it does not contain all the evidence given at the trial. If appellee were correct in this position, the court could not consider the evidence for the purpose of determining whether or not it sustained the finding. McMurran v. Hannum (1916), 185 Ind. 326, 113 N. E. 238; Wagner v. Wagner (1915), 183 Ind. 528, 109 N. E. 47.
The matter thus presented was considered by the court but was not discussed in the opinion, it being assumed that a decision based on the evidence would imply that the preliminary question mentioned had been decided adversely to appellee. It could hardly be assumed that a court would overlook a matter so vital to the decision rendered.
The record shows that a transcript of the evidence taken before the Public Service Commission on the hearing was filed with the clerk of the court in which the action was brought in accordance with the provisions of §69 of the act creating the commission. Acts 1913 p. 167, §10052a el seq. Burns 1914. On the trial, parts of the evidence contained in the transcript so filed were offered and admitted in evidence, and the parts so introduced are embodied in the bill of exceptions as a part of the evidence. The transcript as a whole was not offered or read in evidence, and the parts not offered in
Section 70 of the act cited provides, that: “A transcript copy of the evidence and proceedings, or any'Specific part thereof, on any investigation taken by the stenographer appointed by the commission, being certified under oath by such stenographer to be a true and correct transcript of all the testimony on the investigation of a particular witness, or of other specific part thereof, carefully prepared by him from his original notes, and to be a correct statement of the evidence and proceedings had on such investigations so purporting to be taken and transcribed, shall be received in evidence with the same effect as if such reporter were present and testified to the effect so certified.”
It is apparent from the plain provisions of the act that the purpose of the legislature in requiring the transcript to be filed with the clerk of the court in which the action to set aside the order is pending before the case is reached for trial was to make such transcript
At the 1918 session of the legislature an act was passed amending §6 of the act creating the railroad commission. This section as amended provides a method of procedure in cases to be brought by any carrier or other party dissatisfied with any final order made by the commission. This section provides that in all actions in the courts of this state authorized by this act the rules of evidence shall be the same as in the trial of civil cases as now provided by law, except as otherwise provided in this act. The act of which this section is a part makes no provision for the filing of any transcript of the proceedings of the commission on which an order is based with the clerk of the court in which an action is filed to suspend or set aside the order.
Petition denied.
Concurrence Opinion
Concurring Opinion.
— I concur in the majority conclusion that the petition for a rehearing should be denied.
Briefly stated, this was an action by appellant under §6 of the Railroad Commission Act as amended in 1913 (Acts' 19.13 p. 820, §5536 Burns 1914), against appellee to set aside an order made by appellee in a proceeding begun under §1, cl. L, Acts 1917 p. 118, in force March 1, 1917, before the Public Service Commission by the Chicago, Lake Shore and South Bend Railway Company against appellant. The act under which the present action was begun provides that: “In all actions in the courts of this state authorized-by this act, the rules of evidence shall be the same as in the trial of civil cases, as now provided by law, excepting as otherwise provided in this act.” The phrase “as otherwise provided in this act” has no application to the question here involved. The original proceedings, as well as the instant case, was brought and proceeded to final judgment in accordance with the Railroad Commission Act as amended and supplemented, and in force March 1, 1917. This, latter act has no provision requiring the Public Service Commission to file a certified transcript of the proceedings had before it in actions brought under amended §6 to suspend or set aside an order as is required by §69 of the Public Service Commission Act,
Appellee contends that the transcript furnished by the commission under the provisions of §69 of the Public Service Commission Act, supra,, and filed with the clerk of the Laporte Circuit Court, where this action was originally brought, as a matter of law made it a part of the evidence in this case, and as only part of it is in the record as appears from the bill of exceptions, it necessarily follows that all of the evidence is not in the record, and this court is for that reason precluded from passing upon any question requiring a consideration of the evidence. The transcript of the evidence included in the bill of exceptions before us concludes with the statement “and this was all the evidence given in said cause,” and the trial court certifies to the correctness of the bill. This bill imports absolute verity. It cannot be contradicted here except only by such contradiction as affirmatively appears from the bill itself. Citizens Street R. Co. v. Heath (1899), 154 Ind. 363, 55 N. E. 744; Hodgin v. Hodgin (1910), 175 Ind. 157, 93 N. E. 849; Baltimore, etc., R. Co. v. Kleespies (1906), 39 Ind. App. 151, 161, 76 N. E. 1015, 78 N. E. 252; Whisler v. Whisler (1903), 162 Ind. 136, 67 N. E. 984, 70 N. E. 152.
Appellee insists that the bill of exceptions containing the evidence affirmatively shows that a part of the evidence is omitted therefrom. Its contention is based upon the following statement in the record. “Mr. McCart (attorney for appellant) : We have here, your honor, the record before the Public Service Commission of Indiana, which was filed by the Attorney-General of Indiana, and I now offer it in evidence. The Court: Is there any objection? Mr. Meyer (attorney for appellee) : No objection. Mr. McCart: I offer in that
It is not contended that the bill of exceptions does not contain all of the evidence offered and read in evidence from the transcript of the original case before the Public Service Commission as well as all testimony or other evidence introduced at the trial of this cause. The fact that other evidence was offered, but not introduced or ordered made a part of the evidence in the cause, does not make it a part of the evidence in the case. This not being an action commenced against the commission under the provisions of §§78-86 of the Public Service Commission Act approved March 4, 1913, nor was the order which is sought to be set aside made under any provision of that act, it follows that §69, supra, has no application, and appellee’s contention cannot be sustained, and the petition for a rehearing should be denied.
Note. — Reported in 121 N. E. 276, 123 N. E. 465, 466.