79 Ind. App. 551 | Ind. Ct. App. | 1922
Action by appellant to recover damages of appellee for the destruction by fire of certain buildings with their contents belonging to appellant, and located along and near appellee’s railroad right-of-way.
Appellee filed three paragraphs of answer, the first a denial, the third is not involved, and the second is in substance as follows:
On February 16, 1916, long previous to the date of the fire mentioned in the said complaint, appellant and appellee entered into a lease whereby appellee, with the Chicago and Eastern Illinois Railroad Company, leased to appellant a portion of the right of way of said company; that the lease was in existence and in full force and effect at the time of the said fire; that said portion of said right of way was leased as a location for an unloading platform to serve the grain elevator and business of appellant then existing on premises belonging to appellant adjacent to the said portion of the right of way so leased as aforesaid, and his said business generally, with all of the buildings described in the complaint; that there was constructed on the said portion of the said right of way so leased as aforesaid such unloading platform to serve said grain elevator and said business; that the same was used in conjunction with and as a part of said grain elevator; that connected to the said grain elevator were a warehouse, an oil-house, a barn and other buildings described in the said complaint all of which were also situated on appellant’s premises adjacent to the said portion of the right of way so leased; that the portion of the said right of way so leased, and the unloading platform constructed thereon, were xused by appellant in connection with the said grain elevator, warehouse, oil-house, ham, and other
Appellant’s demurrer to the said second paragraph of answer was overruled and appellant failing and refusing to plead further, the court adjudged that he take
Appellant assigns as error in this court the court’s action in overruling his demurrer to the said second paragraph of appellee’s answer.
Appellee earnestly contends that appellant waived any error as to his demurrer to the second paragraph of answer by failing to present therewith a sufficient and definite memorandum as to his objections to the same, and that appellant has so far failed to follow clause 5 of Rule 22 of this court in the preparation of his brief as to fail to present any question for the consideration of this court. We have, however, examined the memorandum attached to the demurrer and we are of the opinion that the trial court was fully able to understand therefrom the objections to the second paragraph of answer which appellant attempted to present, and we further hold that appellant’s brief shows a good faith effort to comply with said clause 5 of Rule 22 of this court, and, as but one question is presented, that of the error of the court in overruling appellant’s demurrer to the second paragraph of answer, the appeal will be considered on its merits.
We reach the conclusion that the provision releasing appellee from liability for damages from fire in the contract leasing, a portion of appellee’s right-of-way to appellant is not void as against public policy, and that it does not contravene the above statutes making railroad companies liable for damages resulting from fire. Having so concluded we hold that the demurrer to the second paragraph of answer was properly overruled.
Judgment affirmed.