Indiana Ins. Co. v. Handlon

• Decision Date: 05 February 1940
• Docket Number: 27350.
• Parties: INDIANA INS. CO. v. HANDLON.
• Court: Indiana Supreme Court

24 N.E.2d 1003

216 Ind. 442

INDIANA INS. CO. v. HANDLON.

No. 27350.

Supreme Court of Indiana

February 5, 1940

Appeal from Boone Circuit Court; John W. Hornaday, Judge.

Adney & Adney, of Lebanon, and Emmett S. Huggins, of Indianapolis, for appellant.

George S. Stewart, of Indianapolis, Rogers & Smith, of Lebanon for appellee.

SHAKE Chief Justice.

The issues upon which this case was tried below were formed on a complaint in two paragraphs, to which there was an answer in general denial. The first paragraph of complaint alleged that the appellant practiced a fraud upon the appellee by inducing him to release for $100 as valuable cause of action for personal injuries caused by the negligence of one Holmes. The second paragraph contained the same facts, except that it alleged that appellee's cause of action against Holmes, which he was fraudulently induced to release, was good on the theory of the last clear chance. There was a jury trial, which resulted in a verdict and judgment in favor of the appellee for $1250. This appeal is from the denial of the appellant's motion for a new trial. The errors claimed are: (1) That the trial court should have directed a verdict for the defendant at the close of the plaintiff's evidence; (2) that the verdict was not sustained by sufficient evidence and that it was contrary to law; (3) that the damages assessed were excessive; and (4) that the court erred in giving certain instructions on its own motion and in refusing other instructions tendered by the appellant.

The plaintiff introduced evidence from which the jury was warranted in finding the following facts: Holmes owned a motor truck which was insured against public liability by the appellant. About six o'clock p. m. on Saturday, January 7, 1933, one DeKalb was driving said truck for Holmes southwest on Kentucky Avenue in the city of Indianapolis. Kentucky Avenue is sixty feet wide and carries two car tracks, which are five feet apart. It is twenty-two and one-half feet from the west curb to the nearest track. Appellee, a laboring man about forty-five years of age, was standing in Kentucky Avenue at a point about two hundred feet beyond its intersection with West Street. He carried a chunk of coal of uncertain size on his left shoulder. The traffic was heavy at the time. The truck approached appellee at a speed of thirty miles per hour, without headlights. Appellee was struck by the truck and knocked four or five feet and rendered unconscious. He was removed to the City Hospital in an ambulance. It was there ascertained that he was suffering from shock and concussion. He had a wound in the head that required ten stitches to close and both bones of his lower right leg were fractured. The limb was placed in a cast and appellee was removed to his home the next day. One Smith, an attorney and claim agent for appellant, called on appellee two or three times. He was at appellee's home on January 17th, in company with Hume, the appellant's superintendent of claims. The claim agents told appellee on that occasion that they had visited the hospital, seen the X-ray plates, talked with the doctors, and had learned that appellee's leg was not broken and that he would be able to return to work in three or four weeks. Appellee was not regularly employed and had been receiving public aid. The claim agents inquired how much money appellee would need for groceries, fuel, rent, and insurance for a month. They then offered him $100 to settle his claim against Holmes spreading that amount in currency before him on the bed. Appellee's wife took the money and he signed a release by mark, one claim agent holding him up and the other guiding the pen. Thereafter appellee returned to the hospital for two operations made necessary by his injuries. One operation required an incision six to ten inches long to the bone of his leg. A metal band was placed therein. Thereafter a three inch incision was required to remove the metal. The doctors testified that at the time of the trial appellee was suffering from a permanent partial impairment of the leg.

The record discloses that at the close of the plaintiff's evidence the defendant moved for a directed verdict in its favor. When the motion was denied it offered evidence in its own behalf. If a defendant in an action, upon the close of the plaintiff's evidence in chief, moves the court to direct a verdict on such evidence in his favor, he must stand by his motion; for, if he subsequently introduces his own evidence, he will be regarded as having waived or receded from his motion, and therefore no question can be considered under such motion on appeal. Baltimore, etc., R. Co. v. Conoyer, 1898, 149 Ind. 524, 527, 48 N.E. 352, 49 N.E. 452.

In determining the sufficiency of the evidence we must therefore look to the whole of it, rather than to the part offered by the plaintiff below. In this consideration we accept as true all facts, and all proper inferences which the jury might draw from the facts, that are calculated to sustain the verdict. This court does not concern itself with conflicts in the evidence or the credibility of witnesses. When so viewed the evidence epitomized above is ample to sustain the verdict. It was proper for the court to permit the jury to say whether the operation of a motor vehicle over a heavily travelled thoroughfare at a speed of thirty miles per hour, and without headlights in the nighttime was negligence. Red Cab, Inc. v. White, 1938, 213 Ind. 269, 12 N.E.2d 356. A release of a claim...