57 Ind. App. 295 | Ind. Ct. App. | 1914
This action was brought by appellant against appellee, David A. Coulter, and also one William IT. Coulter. The latter having died, the former, as administrator of his estate, has been substituted. The complaint is in two paragraphs. The averments essential to an understanding of the controlling questions are in substance as follows: At all times involved, Coulter and Coulter were the owners of a three-story brick building, facing west, at the southeast corner of the intersection of Jackson and Washington streets in Franklin, Indiana, known as “The Coulter Opera House Block”. Business rooms on the ground floor were occupied by tenants. The rear part of the second and third stories was equipped with a stage, dressing rooms, etc., and had formerly been used as an opera house. This part of the building was in the possession of the owners. Appellant, as tenant of the owners, occupied the front part
By the first paragraph of complaint, appellant sues on the alleged breach of the covenant to repair. By the second paragraph, for negligence in maintaining the chimney in its alleged defective condition, and for negligence in failing to repair it. In each paragraph it is alleged in substance that the fire originated around the chimney, and that it resulted from its alleged defective condition. There is no charge disassociated from said chimney. There is no claim other than that on account of its condition, fire was cummunieated to combustible material around it over the stage, or where it passed through the roof.
We have given only such an abstract of the interrogatories and answers as may be necessary to determine whether instructions refused and given as aforesaid may have affected such answers, as claimed by appellant. Since on the question of the origin and cause of the fire, the burden was on appellant to make proof as alleged, answers to interrogatories bearing on the subject of whether the fire was caused by defects in the chimney, which are to the effect that there is no evidence on such subject, are equivalent to- positive answers to.such interrogatories against appellant. Indianapolis Abattoir Co. v. Temperly (1903), 159 Ind. 651, 656, 64 N. E. 906, 95 Am. St. 330; Perry, etc., Stone Co. v. Wilson (1903), 160 Ind. 435, 439, 67 N. E. 183; Indianapolis, etc., Traction Co. v. Newby (1910), 45 Ind. App. 540, 90 N. E. 29, 91 N. E. 36. As to instructions tendered by appellant, he complains of the court’s refusal to give Nos. 5, 6 and 9. Instruction No. 5 is to the effect that it was not the duty of appellant to make repairs; No. 6, that appellees were chargeable with the natural tendency of buildings to get out of repair; and No. 9, that appellant had a right to assume that appellees would exercise ordinary diligence in making repairs. Appellant complains only of instructions Nos. 5, 12, 17 and 22 given at appellees’ request. No criticism is urged against the series of
In the ease at bar, appellant has not pointed out to us, and we are unable to see wherein the instructions given and complained of could have influenced the jury in its answers to interrogatories on the subject of whether such fire in fact resulted from defects in the chimney, or wherein the
There being no prejudicial error in the record, the judgment is affirmed.
Note. — Reported in 107 N. E. 14. As to the right and liabilities of tenant on destruction of leased premises, see 94 Am. Dec. 662; 61 Am. St. 566. See, also, under (1) 38 Cyc. 1775; (2) 38 Cyc. 1924 ; 24 Cyc. 1123.