41 Ind. App. 156 | Ind. Ct. App. | 1907
This action was originally commenced by appellant against appellee, and the Pennsylvania Company, to recover damages for the negligent killing of her decedent. On a former trial the action was dismissed as to the Pennsylvania Company, and judgment rendered against appellee. On appeal to the Supreme Court that judgment was reversed (Pittsburgh, etc., R. Co. v. Gipe [1903], 160 Ind. 360), and the cause returned for a new trial. A substituted amended complaint, an answer in three paragraphs, the first a general denial, and a reply in two paragraphs — one in denial — to the affirmative paragraphs of answer, formed the issues. Trial by jury. On motion of appellee, and over the objections and exceptions of appellant, the court instructed the jury to return a verdict in its favor, which was accordingly done, and judgment rendered on the verdict. Appellant’s motion for a new trial was overruled, and this ruling is assigned as error.
The record on the former appeal shows that the reply was in three paragraphs. The first was a general denial; the second alleged that there was no consideration for the settlement and release mentioned in the second paragraph of answer ; and the third was addressed to that part of the second paragraph of answer which alleged a settlement and release of her claim, as administratrix, against this appellee, for the reason that there was no consideration of any nature for such release and settlement of her said claim as such administratrix.
The first paragraph of reply now before us is addressed to the second and third paragraphs of answer, and seeks to avoid the release mentioned in the answers, upon the grounds that it was procured from appellant by appellee through fraud and misrepresentations; that no part of said $750 was received by appellant, but was received by Flora J. Gipe as her individual property and so used, and that the release by her as administratrix, under the facts, made appellee liable as a party to a devastavit.
On the former appeal, it was held that “the mere receipt of the money in both capacities did not per se involve a waste of the trust,” as she would be bound to account for the money received on the probate side of the court, and therefore appellee was not a party to a devastavit.
In the ease at bar we have, to support the claim of fraud, the statements of appellee’s agent, that the instrument presented to appellant for signature was just a mere form to get the $750, or was a form that they have to go through to get the $750, “everything is all right.” Three rational inferences only could have been drawn from Eddy’s statements : (1) ITis opinion as to the legal effect of the instrument, (2) a statement of a fact regarding a form of release the company required to be signed before paying the money, (3) “everything is all right,” meaning that the release would not affect the rights of the children, and was a form necessary to get the money.
As to the second inference, if the company had actually adopted the form of release presented- to appellant to sign, and there is nothing to the contrary, such representation was not untrue, and consequently not fraudulent. Therefore, applying the settled rules of law in this State to the evidence
Judgment affirmed.