16 S.D. 261 | S.D. | 1902
This is an action to recover damages for personal injuries received by the plaintiff while employed by the defendant, a domestic corporation, blasting rock in its mine. Its trial resulted in a judgment for $12,000, from which, and an order denying its application for a new trial, the defendant appealed.
It is alleged in the complaint that the defendant was negligent (1) in failing to provide proper means of ingress to the
It is contended that the demurrer to the complaint and defendant’s objection to the introduction of any evidence should have been sustained, for the reason that the complaint contains no allegation of a tender of the amount received from defendant in consideration of the alleged settlement. The release was a matter of defense which should not have been mentioned in the complaint, and the allegations relating thereto might properly be regarded as surplusage. Trotter v. Life Association, 9 S.D. 596, 70 N.W. 843, 62 Am. St. Rep. 887. Nor was the complaint defective if such allegations be regarded as a part of it. In reviewing the ruling of the lower court upon the demurrer and upon defendant’s objection to the introduction * of any evidence, all of the well-pleaded facts contained in the complaint are admitted to be true. If so, the alleged release or settlement was fraudulently obtained, and in such case the better and more reasonable rule is that a tender of the amount .Received by the plaintiff need not be made before action is commenced, the release being treated as a receipt for a partial pay,ment, to be deducted from the amount of the plaintiff’s recovery. O’Brien v. Railway Co. (Iowa) 57 N. W. 425; Railroad Co. v. Doyle, 18 Kan. 58; Sanford v. Insurance Co. (Wash.) 40
During Edmonds’’ cross-examination one of plaintiff’s attorneys made the following statement, presumably addressed to the court: “We desire to show by this witness who the real defendant and party in interest is. We are entitled to show that the Holy Terror Mining Company is not the real party in interest, but that it is fully indemnified by this London Insurance Company, and would not be obliged to pay anything to the plaintiff; but it is this insurance company upon whom the verdict must ultimately fall; and to show what interest the witness has in the case. We are entitled to show this for the purpose of showing the interest of this witness in the result of this controversy, and thus affect his credibility. The jury are clearly entitled to know what interest, if any, this witness or his principal has in the result of this contro ■ versy. ” This language appears to have been employed in the course of a proper and usual argument relative to the cross-examination then in progress, to which opposing counsel were interposing numerous objections; and, in the absence of any request to have the jury excluded during such discussion, de
It is contended that the court erred in making the following statement, presumably to counsel in the presence of the jury, near the close of Edmond’s cross-examination: “The court makes this statement: That this evidence is admitted for the reason that, if this insurance company settled with John Hedlun, it does not matter in what way the receipt is written. The settlement is with the insurance company, and not with the Holy Terror Mining Company.” It will be readily conceded that this remark was unnecessary and inappropriate, and it may not be improper to observe that trial judges should usually rule on objections to the introduction of evidence without any comments whatever, but we cannot regard the conduct of the circuit judge in this instance as involving reversible error. He may have given an erroneous reason for admitting the evidence, but it was properly admitted, and the issue relative to the release was correctly defined in the court’s charge to the jury. It can hardly be contended that an ordinarily intelligent juror would be guided by such a remark, made during the progress of an extended and closely contested trial, rather than by the instructions given with the submission of the case; and, if we cannot assume that jurors possess ordinary intelligence, the jury system might better be abolished.
It is contended that a new trial should be ordered because of certain remarks made by D. M, Kelleher, one of plaintiff’s attorneys, in his opening address to the jury. He stated, in. effect, that the witness Edmonds was the agent of the insur
Several objections are urged to the statement of the issues in the opening portion of the court’s charge. It is true that the issues raised by the pleadings are not exhaustively defined therein. But it is not necessary that all the issues should be stated in a single paragraph of the charge. It is sufficient ij they are fully stated to the jury in some part of the charge in
Appellant’s seventy-third assignment of error reads as follows: “The court erred in giving plaintiff’s instruction No. 5, (Abs., folios 450-452.)” Without conceding the instruction to be erroneous, respondent insists that it cannot be reviewed, because the assignment of error is too indefinite. We think respondent’s position is well taken. “It is not only necessary to allege or assert error on the part of the court in doing the act complained of, but there must be some ground alleged as the basis of the assignment that the act was erroneous, and it must be specifically and definitely declared or set forth in the assignment, and as part of it, how, why, in what way, on what ground, or for what reason, an error was committed ‘or exists, or is claimed to exist. The very meaning of the word ‘assign’ is ‘to mark out,’ ‘to allot,’ ‘to apportion,’ ‘to make over’; and there can be no assignment unless it discloses and designates what is marked out, or allotted, or apportioned, or made over. An assignment of error actually means the marking ®r pointing out of the error. ” Franz Falk Brewing Co. v. Mielenz Bros., 5 Dak. 138, 37 N. W. 728; State v, Chapman, 1 S. D. 414, 47 N. W. 411, 10 L. R. A. 432. The rule requiring errors to be specifically pointed out is not merely for the convenience of appellate judges. Assignments in this court corresponding with the specifications of error in the bill of exceptions should be so framed as to enable this court to readily discern, without the aid of argument, what particular errors are relied upon, and to
Finally, it is contended that the evidence was insufficient to justify the verdict. If the jury believed the plaintiff’s own testimony — as they were warranted in doing, especially in view of Edmonds’ cross examination — they were entirely justified in finding that the alleged release was fraudulently procured. That feature of the case demands no further attentien. It was, we think, conclusively shown that the plaintiff was himself free* from fault. The fuses under his charge were properly spitted, and he and his partner were on the cage in ample time to have avoided the accident had not the ascent of (he cage been delayed by Hopkins’ repeated efforts to spit his last fuse. Clearly, the jury could not have found that plaintiff was guilty of any negligence which contributed to his injuries. Nor do we think the jury were justified in finding that defendant was negligent in failing to provide proper means of ingress to the cage. Concerning this subject the plaintiff testified as follows:
The judgment of the circuit court is affirmed.