Mesker v. Bishop

*470On Petition for Rehearing.

Hottel, J.

In a petition for rehearing appellant very earnestly urges that this court has overlooked some material considerations which oversight has led it into error in its opinion.

18. It is first insisted that the court erred in holding that no error resulted from sustaining a demurrer to its cross-complaint. We are satisfied with the conclusion reached and announced on this question in the original opinion, but we might add that we are unable to see how appellant could have been harmed by such ruling of the trial court, even if erroneous. An answer setting up substantially the same facts was very properly held sufficient against a demurrer, and appellant, by way of defense, had the full benefit of all the evidence beneficial to it that could have been admissible under its cross-complaint. The verdict of the jury was necessarily against appellant on the issue tendered by such answer and appellee’s reply thereto, otherwise there could have been no verdict in appellee’s favor. The finding by the jury against appellant on its answer, would necessarily prevent it from obtaining the affirmative relief asked in its cross-complaint.

19. *47120. 21. *470This brings us to what we regard as the most serious question in the case, viz., Was there sufficient evidence to show a consideration for the release set up in such answer 1 The affirmative reply to this answer averred in substance that neither at the time of its execution and delivery, nor before nor since that time, was any consideration for such release received by Jane Bishop or Mary Dills, or either of them, from the appellant or any other person. It is very earnestly insisted by appellant that this court in the original opinion treated this question as one of the weight of the evidence, when in fact it was a question of the sufficiency of the evidence. We recognize the distinction contended for by appellant to the effect that the question of the *471weight of the evidence is for the jury and trial court, while its sufficiency to sustain the verdict of the jury, or the decision of the trial court, is for this court. Habbe v. Viele (1897), 148 Ind. 116, 121, 45 N. E. 783, 47 N. E. 1; Wright v. Bertiaux (1903), 161 Ind. 124, 129, 130, 66 N. E. 900; United States Cement Co. v. Whitted (1910), 46 Ind. App. 105, 107, 90 N. E. 481, and cases cited. We cannot say, however, in this case, that there was no evidence from which the jury might not have inferred that the release in question was given without consideration. The evidence on which appellant relies shows that Jane Bishop was told when she signed the release that she had no cause of action, but that they, the persons representing appellant, would make her a present of $50, and would pay the hospital and doctor bills and, that if she did not sign it she would have to pay these bills. She also testified that they read the paper to her and, that she understood she had to sign the paper in order to get the $50, but she testified on cross-examination, in effect, that she did not understand when she signed the paper that she was settling any claim she might have against appellant on account of the death of her husband; that appellant’s agents told her she had no claim and that they were making her a present, or gift, of the $50. We do not think this evidence sufficient to preclude an inference by the jury of a want of consideration for the signing of such release by Jane Bishop, the mother; but assuming, without deciding, that it was sufficient for such purpose, it fails to show such consideration for the signing by the daughter Mary Dills. This action is brought, and properly so, by the administratrix under §285 Burns 1914, Acts 1899 p. 405, and a release, to be a complete bar to recovery by such administratrix, should be signed by all, “the widow * * * and children, if any, or next of kin” for whose benefit the personal representative, at the time of the execution of such release, might have properly brought an action, and a want of consideration for *472the signing of such release by either of such persons would be sufficient to prevent such release from being a complete bar to recovery in an action brought by such personal representative. The evidence shows that the promise of the $50 was to the mother and her signature was procured under such promise. The signature of the daughter was secured later. No promise was made to, or understanding had with her that she was to be paid anything. The evidence shows that she in fact received nothing. For these reasons we think the conclusion reached in the original opinion on this question is correct and, that there is evidence in the record which authorized the conclusion reached by the jury. The petition for rehearing is therefore overruled.

Note. — Reported in 103 N. E. 492; 105 N. E. 644. As to death by wrongful act and release of action therefor, see 70 Am. St. 669. As to servant’s assumption of risk from latent danger or defect, see 17 L. R. A. (N. S.) 76. And for servant’s assumption of risk of danger imperfectly appreciated, see 4 L. R. A. (N. S.) 990. As to whether servant may assume the risk of dangers created by the master’s negligence generally, see 4 L. R. A. (N. S.) 848; 28 L. R. A. (N. S.) 1215. As to the general question of the delegability of the master’s duty as to place and appliances, see 54 L. R. A. 63. See, also, under (1) 2 Cyc. 989; (2) 2 Cyc. 987; (3, 4) 26 Cyc. 1397; (5) 26 Cyc. 1384; (6) 31 Cyc. 79; (7) 2 Cyc. 671; (8) 18 Cyc. 141; (9) 31 Cyc. 226; (10) 18 Cyc. 67; (11, 19) 3 Cyc. 348; (12) 26 Cyc. 1104, 1321; (13) 2 Cyc. 1015; (14, 15) 26 Cyc. 1491, 1517; (16) 38 Cyc. 1809; (17) 38 Cyc. 1511; (18) 31 Cyc. 358; (20) 34 Cyc. 1103; (21) 34 Cyc. 1048, 1080.