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Weatherhogg v. Board, etc.

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but if he shall not recover more on such appeal than is allowed, he shall pay the costs of such appeal. Section 2. All laws and parts of laws in conflict therewith are hereby repealed.”

It is argued first that the amendatory act is invalid, under the above provisions of the Constitution, for failure to set out in full the old section to be amended; and Langdon v. Applegate, 5 Ind. 327, and cases following it, are cited to sustain the proposition. The decision in the Langdon case was overruled in Turnpike Co. v. State, 28 Ind. 382, thirty-four years ago, since which time it has been uniformly held by this court that the constitutional provisions are satisfied by setting forth at full length, in the amendatory act, the act or section as amended. Draper v. Falley, 33 Ind. 465; Blakemore v. Dolan, 50 Ind. 194, 202; Bush v. City of Indianapolis, 120 Ind. 476.

Second, it is asserted that the amendatory act is void because the number of the particular section of the old act to be amended is omitted from the title. The evident object of these provisions of the Constitution of 1851 was to avoid the mistakes, uncertainties, and confusion in amendatory acts that had resulted from the legislative methods sanctioned by the Constitution of 1816; that is, in some instances, by making no mention, either in the title or body of the amendatory act, of the particular section or provision of the former act intended to be amended, and in other cases by providing in the amendatory act that certain words and phrases of the former act be stricken out, and other words and phrases substituted. Bush v. City of Indianapolis, supra. And it may be said that the purpose of these provisions is fully attained when the amendatory act, of itself and as an entirety, contains such matter as clearly and unmistakably identifies the act or the section of the act to be amended, and the act or section of the act as the same is amended. Beyond all cavil, the act to be amended in this case is sufficiently certain, for its title and date of approval are set out in totidem verbis in

Baltimore, etc., R. Co. v. Reed.

both the title and body of the amendatory act. The title of an act, while essential to its constitutional validity, is nothing more than the exponent of the subject of the enactment. Its purpose is to give notice to the lawmakers, and to guide the courts in determining the subject legislated upon. In this case the title gives unmistakable notice that the intention was to amend the act of 1879. The body of the proposition clearly states the particular part of the old law intended to be amended, and sets forth at length the new proposition as it will stand when amended. This is a substantial compliance with the Constitution. The complaint is sufficient.

Judgment reversed, with instructions to overrule the de murrer to each the first and second paragraphs of the complaint.

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(No. 19,013. Filed January 17, 1902. ] MASTER AND SERVANT.-Personal Injury Occurring, in Sister State.

158 170 f170

25 283 375

Common Law Presumed.Courts.-- Jurisdiction.—The court will presume that the common law rule as recognized and enforced in this State which prevents a recovery against the master by a servant for an injury sustained through the negligence of a fellow servant obtains in a sister state, and a complaint charging such an injury in another state will be held demurrable by the court

of this State. pp. 26-29. SAME. Employers Liability Act.-Extraterritorial Effect. --The employ.

er's liability act, 997083-7087 Burns 1901, creating a liability against the employer for personal injuries resulting from the negligence of a fellow servant has no extraterritorial force or effect, so as to create a right of action in favor of a servant against a railroad company for an injury sustained in a sister state through the negligence of a fellow servant, where no such

right under the laws of the latter state existed. pp. 29–31. SAME. –Employers Liability Act.Constitutional Law.-Section 7086

Burns 1901, providing that in an action against a railroad com. pany in this State for a personal injury occurring in another state it shall not be competent for such company to plead or prove the decisions or statutes of the state where such person shall have been injured as a defense to the action brought in this State, is unconstitutional. pp. 31-34.

Baltimore, etc., R. Co. v. Reed.

From Pike Circuit Court; E. A. Ely, Judge.

Action by Clement V. Reed against the Baltimore and Ohio Southwestern Railroad Company for damages for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

W. R. Gardiner, C. G. Gardiner and E. W. Strong, for appellant.

C. K. Tharp, J. A. Padgett and A. J. Padgett, for appellee.

JORDAN, C. J.—This action was commenced by appellee in the Daviess Circuit Court to recover damages for personal injuries sustained. The cause was thereafter venued to the Pike Circuit Court, where a trial by a jury resulted in a verdict awarding appellee $15,000; and, over appellant's mo tion for a new trial, judgment was rendered thereon against the railway company. From this judgment the company appeals and assigns as errors (1) that the court erred in overruling its demurrer to the complaint; (2) in sustaining the demurrer of appellee to the second paragraph of answer; (3) in denying a motion for a new trial. Under the averments of the complaint, the following facts are shown: The defendant, appellant herein, is a railroad corporation owning and operating a continuous railroad which extends from the city of East St. Louis in the state of Illinois, into and through Daviess county in the State of Indiana, on to the city of Cincinnati in the state of Ohio. The plaintiff was, at the time of the accident, and at the time he instituted his action, a resident of the State of Indiana. On June 8, 1897, he was a servant of the defendant, engaged in its employ as a brakeman on a freight train which was being operated and run over defendant's said road from the town of Flora, in the state of Illinois, into and through Daviess county in the State of Indiana. On said day, at the station of Clay City in the state of Illinois, while the plaintiff was assisting in the operation and running of said freight train as such brakeman, it became and was his duty to assist in making

Baltimore, etc., R. Co. v. Reed.

what is denominated and known as a "running or flying switch"; and while so engaged he was, without any fault or negligence on his part, jerked and thrown under a moving car, which ran over and crushed one of his legs, and thereby the amputation of said limb was rendered necessary. The accident in question is alleged to have been caused by the violent and sudden start and speed of the engine attached to the train, which engine was in charge of, and was being operated by, one Michael Griffin, a locomotive engineer then and there in the service and employ of the defendant. The plaintiff in his complaint charges the accident, which occurred at Clay City, Illinois, and the injury resulting therefrom, to be wholly due to the negligence of Griffin, the engineer, in the operation and management of said engine at the said time and place.

The lower court adjudged the complaint to be sufficient on demurrer. The complaint, as we have shown, discloses that the accident by which appellee was injured occurred in the state of Illinois; consequently if he has a right of action against appellant, such right arose under the laws of the latter state. The facts conclusively show that appellee and the engineer to whose negligence the cause of the injury is imputed were, under the circumstances, at the time of the accident nothing more than fellow servants of each other, both in the service of appellant, their common master. He does not profess by his complaint to base his cause of action on any statute of the state of Illinois. The rule of the common law which asserts that the master is not liable in an action by one of his servants for an injury sustained through the negligence of a fellow servant is a familiar one. When tested by this rule of the common law, as it prevails and is enforced in this State by our decisions, the complaint in question does not state a cause of action against appellant. We are bound to presume that the same common law rule as recognized and enforced in this jurisdiction obtains in the state of Illinois, and is enforced by the highest court thereof in like manner

Baltimore, etc., R. Co. v. Reed.

as we enforce it, until the contrary is shown. Hence it must be held that, under the laws of the state in which the injury complained of was inflicted, the complaint does not state or disclose a right of action against appellant. Unless the negligent act of appellant's servant, to which appellee imputes his injury, which act, as shown, occurred wholly in the state of Illinois, created a liability or right of action in that state against appellant in favor of appellee, no such right or liability can be asserted to exist elsewhere. Certainly, if no right of action existed in that state in his favor, he could carry no right of action with him by coming into the State of Indiana and instituting a suit against appellant in the courts of the latter State. This rule of the law is universally affirmed and settled. Buckles v. Ellers, 72 Ind. 220, 37 Am. Rep. 156; Burns v. Grand Rapids, etc., R. Co., 113 Ind. 169. In the latter case this court, on page 176 of the opinion, said: “All the cases agree that, whatever the law of the forum may be, the plaintiff's case must stand, if at all, so far as his right of action is concerned, upon the law of the place where the injury occurred. Hyde v. Wabash, etc., R. Co., 61 Iowa 441, 16 N. W. 351, 47 Am. Rep. 820; State v. Pittsburgh, etc., R. Co., 45 Md. 41.

Unless the alleged wrong was actionable in the jurisdiction in which it was committed, there is no cause of action which can be carried to and asserted in any other jurisdiction.” (Citing numerous authorities.) As further supporting this proposition, see, Alabama, etc., R. Co. v. Carroll, 97 Ala. 126, 11 South. 803, 38 Am. St. 163, and the many authorities therein cited on page 131 of the official report; Davis v. New York, etc., R. Co., 143 Mass. 301, 9 N. E. 815, 58 Am. Rep. 138; Alexander v. Pennsylvania Co., 48 Ohio St. 623, 30 N. E. 69; Railway Co. v. Lewis, 89 Tenn. 235, 14 S. W. 603; Debevoise v. New York, etc., R. Co., 98 N. Y. 377, 50 Am. Rep. 683; Louisville, etc., R. Co. v. Whitlow (Ky. Ct. of App.), 43 S. W. 711, 41 L. R. A. 614; IIamilton v. II annibal, etc., R. Co., 39 Kan. 56, 18 Pac. 57; Smith v. Condry,

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