McCague v. New York, C. & St. L.R. Co.

• Citation: 73 N.E.2d 48,225 Ind. 83
• Decision Date: 21 May 1947
• Docket Number: 28266.
• Court: Supreme Court of Indiana
• Parties: McCAGUE v. NEW YORK, C. & ST. L. R. CO.

73 N.E.2d 48

225 Ind. 83

McCAGUE v. NEW YORK, C. & ST. L. R. CO.

No. 28266.

Supreme Court of Indiana

May 21, 1947

Appeal from Blackford Circuit Court; William A Burns, Judge.

Bonham & Emshwiller, of Hartford City, and James J. Moran, of Portland, for appellant.

Victor H. Simmons, of Hartford City, and Harker & Irwin, of Frankfort, for appellee.

O'MALLEY, Judge.

The petition for rehearing places great reliance upon the dissenting opinion in this cause and insists that this court should not permit the force of its rules to work an injustice to the cause of appellant. Our rules have the force of law and it never has been considered unjust to impartially apply the law to the cause of each litigant. The District Courts of the United States operate under rules promulgated by the Supreme Court of the United States. The rule applicable to instructions is numbered 51, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and that rule is applied in a manner to be compared with the application of our Rule 1-7. Rule 8 of the Supreme Court of the United States, 28 U.S.C.A. following section 354 contains this statement:

'* * * The party excepting shall be required before the jury retires to state distinctly the several matters of law in such charge to which he excepts; and no other exceptions to the charge shall be allowed by the court or inserted in a bill of exceptions.'

The Supreme Court of the United States has applied the applicable rule in a manner that forces each litigant to comply with its effect or to waive the claimed error. We are attempting to so treat our rules that they are enforced in all cases. We do not subscribe to the doctrine that one litigant can save a question without compliance while another is forced to abide by his failure to properly object.

In the brief in support of the petition for rehearing, we are requested to adopt the dissenting opinion. A great portion of that opinion is based on the case of Keeshin Motor Express Co v. Glassman, 1942, 219 Ind. 538, 38 N.E.2d 847. That case was tried in the lower court in the month of December, 1938. The motion for a new trial was overruled in January, 1939. Rule 1-7 of this court was first adopted in 1940 to become effective September 2, 1940. The rule was to operate prospectively and not retrospectively. From the above facts it should be obvious that the Keeshin case, supra, is of no value as an authority on the question here involved.

The case of Giberson v. State, 1946, Ind.Sup., 69 N.E.2d 177, 178, is cited by the appellant because it contains this statement:

'* * * A judge is not obliged to require reasons for an objection if they are apparent. He is supposed to know some law.'

However, that statement was used in commenting on the sustaining of an objection to offered evidence. It has no application to a matter such as the present one. When an objection is sustained, the party against whom it is so sustained cannot complain, unless it should not have been sustained for any reason that could have been given. That rule has been applied to demurrers and to the exclusion of evidence without any exception for a long period of time.

The appellant asserts that the use of the word 'substantial' in the eleventh instruction, changed the rule on preponderance, and increased the burden placed on the plaintiff to sustain the allegations of the complaint. In our opinion we declared that the rule on preponderance was not affected by the use of the word 'substantial' in that instruction, but since our explanation seems to be misunderstood, it may be well to state that the phrase used in the instruction at the trial was something that referred to the duty of the judge in examining the evidence before submitting the cause to the jury. Unless there was some substantial evidence the matter should not have been given to the jury for deliberation and verdict. The instruction stated that 'Substantial evidence of the facts which constitute the cause of action is necessary to the maintenance of a verdict.' This was a reference to one part of the duty which rightfully belonged to the judge and a proper objection would have been that the instruction referred to a duty that should be performed by the judge of the court and was no concern of the jury.

In Garrison v. United States, 1932, 62 F.2d 41, 42, the Circuit Court of Appeals for the Fourth Circuit, in explaining the duty of a judge with reference to directing a verdict or setting one aside, used the following language:

'* * * Where there is substantial evidence in support of plaintiff's case, the judge may not direct a verdict against him, even though he may not believe his evidence or may think that the weight of the evidence is on the other side; for, under the constitutional guaranty of trial by jury, it is for the jury to weigh the evidence and pass upon its credibility. He may, however, set aside a verdict supported by substantial evidence where in his opinion it is contrary to the clear weight of the evidence, or is based upon evidence which is false; for, even though the evidence be sufficient to preclude the direction of a verdict, it is still his duty to exercise his power over the proceedings before him to prevent a miscarriage of justice.'

The above language clearly indicates that the word 'substantial,' as used in the instant case, did not increase the burden imposed on the appellant of proving the material allegations of his complaint by a preponderance of the evidence.

In the majority opinion each question that was raised by the appellant in his brief has been answered. This is a compliance with the basic law of our State. If we were to examine the record and briefs and discuss and determine questions which were not raised, we would thereby violate the terms of Rule 2-17, and especially section (h) thereof, which is as follows:

'Appellant's original brief shall be indexed. Errors assigned and not treated as herein directed shall be deemed to be waived.'

Rule 2-17 is one of the long standing rules of this court. Under its various provisions, questions not included in 'errors relied on' or questions 'not covered in that part of the brief containing propositions, points and authorities,' must be deemed to have been waived.

In the dissenting opinion, which we have been requested to adopt, questions not raised have been discussed and determined to the satisfaction of those dissenting. Among matters discussed and determined we find the doctrine that where an objection to one instruction is made, this court must examine all instructions to determine whether or not each or any of them may contain statements of law that might be objectionable. In doing that we would completely ignore all rules heretofore made. Of course we cannot subscribe to that doctrine.

We have carefully examined the petition and brief on rehearing. It seems to us that the attorneys for the appellant are stressing justice for their cause when they really mean that favoritism should be shown to their client and his cause of action.

The petition for rehearing is denied.

GILKISON, C. J., and EMMERT, J., dissenting.

GILKISON Chief Justice (dissenting).

Notwithstanding the extensive argument in the opinion on rehearing respecting the 'force' of Rule 1-7 and its likeness to Federal Rule 51, I do not believe it is within the power of this court to construe its rules so that it may refuse to perform its constitutional duties on appeals as contained in Art. 7 § 4, Indiana Constitution. The rules should never be permitted to interfere with and prevent the doing of justice when appeals are taken. Rules on appeal are made to aid justice, not to prevent it. To do justice is an ever present and persistent rule to which all others, including Rule 1-7, must yield. Many authorities were cited supporting this proposition in the dissenting opinion herein. It would seem quite superfluous to cite additional authorities to the effect that it is a...