Touchberry v. Northwestern R. R. ( 1911 )

The opinion of the Court was delivered by

Mr. Justice Gary.

This is an action for damages alleged to have been sustained by the plaintiff, through the wrongful acts of the defendant, in overflowing his lands.

The jury rendered a verdict in favor of the plaintiff, for $300.00, and the defendant appealed upon exceptions, which will be reported.

1 The first question that will be considered is, whether there was error on the part of his Honor, the presiding Judge, in submitting to the jury, the question of punitive damages.

The testimony set out in the first exception, which raises this question, shows that the defendant was informed by the plaintiff, that it was injuring his lands, yet it took no steps to prevent such injury, thus tending to show a conscious disregard of the plaintiff’s rights. This exception is, therefore, overruled.

The next question for consideration is, whether the Circuit Judge erred in admitting certain testimony of J. W.

2 Touchberry, as to a conversation or transaction with Boswell, the section master. The defendant made objection to the introduction of the testimony, on the ground “that he could not say or do anything, that would bind the railroad, because that is beyond the scope of his duty.”

There was testimony to the effect, that it was the duty of the section master, to keep the roadbed in proper order.

The testimony was admissible, at least, for the purpose of showing, that the defendant had notice of the injury to the plaintiff’s lands, as the conversation, or transaction, pertained to a matter, within the scope of the agent’s employment.

3 The next question that will be determined is, whether the Circuit Judge erred, in refusing to allow the defendant, to introduce in evidence the order sustaining the demurrer to the complaint, on the ground that it contained certain admissions, against the interest of the plaintiff.

The only admission in the order was, that the complaint was demurrable.

We fail to see wherein this ruling was prejudicial to the rights of the appellant, especially as the complaint itself, was introduced in evidence.

4 As the appellant’s attorneys have not argued the fourth and fifth exceptions, we deem it only necessary, to say, that this Court is satisfied with the construction, which the Circuit Judge placed upon the complaint

Affirmed.