182 Ind. 693 | Ind. | 1914
Lead Opinion
This action was brought by appellee against appellant by a complaint in nine paragraphs, alleging damages to certain real estate in Clay County, Indiana, by reason of certain unlawful acts on the part of appellant, and demanding judgment for $150,000. To each of these paragraphs of complaint appellant unsuccessfully demurred. Appellant then answered in sixteen paragraphs. A separate
The errors relied upon for reversal are: (1) The court erred in overruling the demurrer to the ninth paragraph. (2) The court erred in sustaining the plaintiff’s demurrer' to the third paragraph of answer. (3) The court erred in sustaining the demurrer to the fourth paragraph of answer. (4) The court erred in sustaining the plaintiff’s demurrer to the eighth paragraph of answer. (5) The court erred in overruling the demurrer to the third paragraph of complaint. (6) The court erred in overruling the motion for new trial.
The ninth paragraph of complaint is very lengthy, covering more than six pages of the transcript, and we will give only a concise statement of the allegations therein set out. It is alleged that appellee is and had been for more than ten years the owner of certain described land in Clay County, Indiana; that appellant, has been for more than twenty years and now is operating a line of railroad running east and west across said land; its right of way being a strip 100 feet wide, dividing appellee’s land into two equal parts; that appellee became the owner in the year 1884, at which time appellant’s railroad was in operation across said land on a grade, which at its deepest point was twelve feet below
The sixth paragraph of complaint is the same as the ninth, except that it charges the injurious acts to have been done on the 100-foot right of way instead of the 79J-foot strip, as charged in the ninth paragraph. This was dismissed before the case went to the jury. The seventh paragraph is similar to the ninth, except that it seeks to recover damages to the real estate as a mining and manufacturing property, and closes with a prayer for $100,000. The fourth paragraph seeks to recover for the destruction of a pond on the natural watercourse, which formerly flowed across the right of way of appellant, and which watercourse was changed so as to flow along appellant’s right of way into appellee’s entries and air passages, thus depriving appellee of the use of the water, in operating his mining and manufacturing plant to his damage $2,000. The third paragraph of complaint seeks a recovery for the appropriation of 79-| feet in width by 1,315 feet in length of appellee’s land lying south of the right of way; that on said strip of land was a deposit of red clay, especially valuable for the making of tile, and was used for that purpose and had a market value of $1 per ton; that on said strip of land so appropriated by defendant was more than 40,000 tons of said red clay of the value of $40,000, all of which was destroyed and lost to appellee by appellant’s said unlawful acts, to Ms damage $40,000 for which he demands judgment. The second paragraph of amended complaint seeks to recover damages to the real estate as a manufacturing and mining property and is the same as the ninth paragraph down to the last two items of the ninth, except that it alleged the wrongful acta to have been done on the 100-foot right of way, instead of the 79-J-foot strip and closes with a prayer for $150,000. The first paragraph of complaint is in all respects similar to the ninth, except that it charges that the principal part
The appellant in its assignment of errors questions the sufficiency of the third and ninth paragraphs of complaint. It is apparent that the action is on the theory that the appellant had hy certain wrongful acts destroyed a valuable mine with its appliances and accessories and rendered a manufacturing plant useless, and appropriated a strip of land belonging to appellee by all of which wrongful acts it is alleged appellee sustained damages in the sum of $150,000. This is the same theory in each of the first, second, seventh and ninth paragraphs, and presents from a slightly different viewpoint the facts covering the entire controversy. The third and fourth each refer to only one phase of the controversy. The third seeks a recovery for the land alleged to have been taken, the fourth for the dam alleged to have been rendered useless. The fifth, sixth and eight paragraphs were dismissed at the conclusion of the hearing of evidence. The theory of a pleading is to be determined from the general scope of its allegations and not from the isolated and detached parts of the averments. Western Union Tel. Co. v. Reed (1884), 96 Ind. 195, 198; Platter v. City of Seymour (1882), 86 Ind. 323, 326; Johnson v. Greist (1882), 85 Ind. 503; City of Fort Wayne v. Hamilton (1892), 132 Ind. 487, 491. 32 N. E. 324, 32 Am. St. 263; Monnett v. Turpie (1892), 133 Ind. 424, 427, 32 N. E. 328. It is contended by appellant that the ninth paragraph of complaint seeks the recovery for the loss of profits to appellee’s briekmaking plant alone. In this we think it is in error for it is apparent from the allegations of the entire paragraph that appellee is seeking to recover damages for the unlawful appropriation of 79J feet of land; for the destruction of his mine and equipment; loss of his fire clay;
The third paragraph, the overruling of the demurrer to which, appellant assigns as error, sought to recover damages for the unlawful appropriation of 79£ feet of appellee’s land. If a railroad company without the consent of the owner of the land and without an assessment of damages appropriates land for the use of the company, such owner, while he may acquiesce in the taking, may sue to recover damages for such appropriation. Pittsburgh, etc., R. Co. v. Beck (1899), 152 Ind. 421, 53 N. E. 439; Chicago, etc., R. Co. v. Patterson (1901), 26 Ind. App. 295, 59 N. E. 688; Chicago, etc., R. Co. v. Hall (1893), 135 Ind. 91, 34 N. E. 704, 23 L. R. A. 231; Indiana, etc., R. Co. v. Allen (1888), 113 Ind. 308, 15 N. E. 451, 3 Am. St. 650; Pittsburgh, etc., R. Co. v. Harper (1895), 11 Ind. App. 481, 37 N. E. 41; Indiana, etc., R. Co. v. Allen (1888), 113 Ind. 581, 15 N. E. 446; Porter v. Midland R. Co. (1890), 125 Ind. 476, 25 N. E. 556; Roushlange v. Chicago, etc., R. Co. (1888), 115 Ind. 106, 17 N. E. 198; Strickler v. Midland R. Co. (1890), 125 Ind. 412, 25 N. E. 455; Bloomfield R. Co. v. Van Slike (1886), 107 Ind. 481, 8 N. E. 269. Under the authorities above cited the third paragraph was sufficient. The appellant, by failing to point out any error as to the other paragraphs of the complaint, has waived them. What we have said as to the ninth and third paragraphs disposes of all the errors in relation to the ruling on the demurrers to the complaint.
The fourth paragraph of answer sought to justify the taking of the 79J feet of appellee’s land. By the terms of
It is further contended that the court erred in sustaining the demurrer to the eighth paragraph of answer. This paragraph of answer purports to be a partial answer to the first, second and sixth paragraphs of complaint, and as to so much of said paragraph as charged that appellant wrongfully and unlawfully broke into the appellee’s entries and tunnels, the defense being based on the ground that the work was done by an independent contractor, to whom appellant had contracted for doing the work, and averring that appellant had no control over the manner in which the work should be done. Appellee charges appellant with the wrongful entry upon 79| feet of his land, and appropriating the same to the use of appellant and that it cut down and removed the soil and rock from that part of the land, all of which was done without legal authority so to do. It is not disputed by appellant that it authorized the contractor to whom it let the work for lowering the grade to go upon the 79-|- feet of appellee’s land, but it claims it had a right under the deed from Rodenbarger so to do. It is well settled law that he who counsels, advises, abets or assists another to commit a tort, or joins in its commission is responsible for all the injury done, whether speeificially authorized or not, and can not excuse himself from liability because the particular injury complained of was occasioned by the agent or contractor in connection with
The only question remaining for our consideration is the ruling of the trial court on the motion for a new trial, wherein the giving of certain instructions, tendered by appellee, and the refusal to give certain instructions tendered by appellant; and the giving by the court of its own motion certain instructions; also misconduct of appellee’s attorney in his argument to the jury. Of the instructions given by the court as tendered by the appellee, appellant complains of Nos. 3, 7-J-, 8, 11, 15 and 25; of those given by the court of its own motion appellant complains of Nos. 11, 12 and 13. Appellant also contends that the court erred in refusing to give instructions Nos. 13, 31 and 41 tendered by appellant.
Instruction No. 7-3¡ told the jury in substance that if the appellant appropriated a strip of appellee’s land, without taking necessary steps to acquire the same, as provided by the statutes of the State, that such taking would be unlawful, and that appellee would be entitled to recover therefoi', even if appellee knew of the taking
Instruction No. 1.5 told the jury that if appellant, while engaged in lowering its grade knew of the existence of appellee’s air passages and entries, constructed for the operation of the mine, it was appellant’s duty to cause the work to be done so as to avoid any injury to said entries and air passages, if said work could have been so done as to avoid doing any injury thereto. Wliat we have already said in relation to the giving of instruction No, 3 is applicable here, and the giving of this instruction was not erroneous. The same rule is applicable to instruction No. 25, which told the jury that if appellant broke into the air passages and entries, that appellee had a right to assume that appellant would do whatever was necessary to protect him from damages by reason thereof.
Instruction No. 12 given by the court of its own motion, and complained of here, is to the effect that experts had testified concerning values and conditions; that these opinions were not conclusive upon the jury, but were to be considered by it in connection with all the other evidence in the ease, and were intended to aid the jury, in connection with all the other evidence, in determining to
Instruction No. 13 given by the court on its own motion, told the jury that it was the judge of the weight of the evidence and the credibility of the witnesses, and among other things told it that it had a right to take into consideration the opportunities for knowledge of the facts about which witnesses had testified, the extent, if at all, to which they had been corroborated or contradicted by other evidence in the case together with such other facts as would aid it in weighing the testimony. This was evidently intended by the court, and understood by the jury to relate to such other facts, as were shown by the evidence, and could not relate to other facts, outside and foreign to the case.
If this instruction is erroneous, a matter we do not decide, the appellant is in no position to complain, for it tendered an instruction on this same subject, as follows: “24. If under the instruction I have given you, you find for the plaintiff and assess damages for injuries to his business, then I instruct you that if by the exercise of reasonable diligence and ordinary care under the circumstances and by the use of appropriate means, the water could have been taken out of his mine and the same used substantially as it was before it was flooded, that it was his duty to have taken the water out of it as soon after it was flooded as it was practicable to have done so and that you cannot assess any damages for him for any injury to his business after such time as it was practicable for him to have taken the water out of his mine, nor can you assess any damages in his favor for taking water out of his mine and for preparing it for use, nor can you in any event assess damages for loss of business for a longer time than he alleges his business has been detroyed. ’ ’
“If one party asks instructions asserting a designated theory he can not complain that the court gave similar instructions at the request of his adversary * * * . The general doctrine that a party can secure no advantage from an invited ruling is tacitly asserted in the cases which hold that a party who tenders an immaterial issue can not successfully complain because the court tried the case upon the issue he tendered.” Elliott, App. Proc. §627. See, also, Orient Ins. Co. v. Kaptur (1911), 176 Ind. 308, 312, 95 N. E. 230; Cleveland, etc., R. Co. v. Dixon (1912), 51 Ind. App.
Instructions Nos. 13 and 14 tendered by the appellant are to the effect that appellant had a right to lower the pipe in the stream crossing its right of way and was not liable to appellee for so doing. The complaint alleges and the evidence is to the effect that in changing the grade, and removing the pipe across the right of way, appellee was deprived of the use of the stream of water, which was a natural watercourse, and besides this the allegations are, and the evidence establishes the fact, that appellant changed the course of the stream, and turned the same into the mine of appellee, and thus destroyed appellee’s mine. Instruction No. 31 was to the effect that appellant had a right to cut into appellee’s mine and destroy it if it saw fit to do so in the lowering of its grade. The appellant no doubt would have the right to lower its grade to any depth it saw fit, but in doing so it must protect the right of the appellee in his entries and air passages, and especially so where they had originally been constructed pursuant to an agreement with appellant, that they should be maintained in the manner they were constructed. Livingston v. Moingona Coal Co., supra; 2 Lindley, Mines (2d ed.) §§826, 827. It was not error to refuse each of the three instructions tendered by the appellant.
There being no reversible error shown in the record the judgment is affirmed.
Dissenting Opinion
Dissenting Opinion.
I am of the opinion that the petition for rehearing should be granted. I think appellant is correct in its contention that the ninth paragraph of complaint proceeds on the theory of liability for loss of profits. This appears to be the theory adopted by the trial court in its instructions to the jury, and it should prevail here. On such theory the paragraph was insufficient to repel a demurrer for want of facts.
I think there was error also in sustaining the demurrer to the third paragraph of appellant’s answer which was addressed to the third paragraph of complaint. This error was not rendered harmless unless evidence of all the material facts therein pleaded was admissible under other paragraphs of answer, and I am satisfied it was not.
Note. — Reported in 104 N. E. 301; 108 N. E. 9. On the liability of a railroad company in constructing its roadway, for removal of lateral support to adjoining property, see 21 L. R. A. (N. S.) 318. See, also, under (1) 38 Cyc. 1078; (2) 31 Cyc. 84; (3) 15 Cyc. 804; (4) 3 Cyc. 388; (5) 31 Cyc. 358; (6) 33 Cyc. 165; (7) 38 Cyc. 1041; (8) 14 Cyc. 1208; (9) 33 Cyc. 189; (10) 38 Cyc. 1599; (11) 38 Cyc. 1724; (12) 15 Cyc. 704; (13) 38 Cyc. 1788; (14) 33 Cyc. 188; (15) 38 Cyc. 1502; (16) 3 Cyc. 386.