L.S. Ayres & Co. v. Hicks
| Decision Date | 04 May 1942 |
| Docket Number | 27632. |
| Citation | 41 N.E.2d 356,220 Ind. 86 |
| Court | Indiana Supreme Court |
| Parties | L. S. AYRES & CO. v. HICKS. |
For majority opinion on rehearing, see 41 N.E.2d 195.
Appeal from Circuit Court, Morgan County; Omer O'Harrow, judge.
Fesler, Elam, Young & Fauvre, of Indianapolis (Homer Elliott, of Martinsville, of counsel), for appellant.
Barnes Hickam, Pantzer & Boyd and Thomas M. Scanlon, all of Indianapolis (S. C. Kivett, of Martinsville, of counsel), for appellee.
I am unable to agree with the majority opinion. Because of the far reaching results of the rules laid down in the majority opinion, I feel impelled to state my views on the subject.
It will be noted that in the original opinion, the court discussed the question raised by appellant's motion for judgment on the answers to the interrogatories. In discussing that question, the court set out the four separate acts of negligence charged in the complaint. It was there pointed out that no actionable negligence was proved as charged in the first and second charges, which charges had to do with the choice, construction, or manner of operating the escalator. The third charge of negligence had reference to the delay of appellant in stopping the escalator after it knew of appellee's position. The majority opinion pointed out that, 'the facts found by the jury conclusively establish that the appellant was not negligent with respect to the choice, construction, or manner of operating the escalator.'
It is clearly made to appear that by the interrogatories submitted by the court and answered by the jury, that the jury appreciated the fact that appellant was not guilty of any acts of negligence which caused appellee's initial injury, as charged in the first and second specifications of negligence; and on the other hand the jury was of the opinion that appellee suffered injuries which were the result of appellant's negligence in failing to use due diligence to stop the escalator, after it had knowledge of appellee's condition, as charged in the third specification of negligence. This is all very definitely pointed out in the first opinion in this case.
It will also be noted that appellee, in his complaint, very definitely separated the initial injury from the subsequent injuries by the four separate charges of negligence. The evidence introduced at the trial also emphasized this separation of injuries, and this evidence was effective as disclosed by the answers to the interrogatories. But this is not all. Again this distinction between the initial injuries and the injuries sustained as a result of appellant's negligence in failing to stop the escalator after appellee's position of peril was known to it, was very clearly presented to the jury by instructions Nos. 7 and 8 tendered by appellant.
This brings us to the consideration of instruction No. 6, as discussed by the majority opinion on rehearing. Before discussing the merit of instruction No. 6, it should be observed that appellant made one and only one objection to this instruction, namely: that said instruction 'improperly included humiliation as an element of damage.'
The only points and authorities urged in appellant's original brief were directed to this single objection. The majority found that the instruction was not subject to the criticism made against it. Notwithstanding this fact, the majority of the court felt at liberty to reverse the judgment of the trial court upon grounds never urged either in its original brief or reply brief. The court cited only one authority for so doing, and that was the recent case of Keeshin Motor Express Co. v. Glassman, 1942, Ind.Sup., 38 N.E.2d 847 in which opinion I did not concur. Neither did the court in the last cited case find any case to support it. Attorneys in that case as in this case were unable to find authority to support the proposition, and I have made diligent search on my own initiative and have been unable to find such a case. I do not think this practice should be followed, because, if this court is going to examine every instruction objected to by appellant for errors other than those pointed out in appellant's brief, then appellee must necessarily be put to the task of suggesting in his answer brief every possible objection that could be urged to the instruction, and to meet such possible objection. Otherwise he runs the risk of the court's reversing the case on a point never urged by appellant to the trial court or this court, and to which objection appellee has never had an opportunity to answer.
The general rule, as I understand it, is that all objections not specifically pointed out by appellant in his brief under points and authorities or discussed in his argument, are considered waived, and that appellee in his answer brief has a right to assume that the court will so consider them. The only possible exception to this general rule is, that where there is a general assignment of error and the error is so apparent and so palpably wrong, that there could be no serious disagreement about the matter, then, in my judgment, the court would be justified in taking notice of such error and reverse the case, even though appellant had not pointed out specifically the real error. For instance, if an instruction, unquestionably erroneous, is given and was objected to by appellant, and he properly saves the question in his ...
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