L.S. Ayres & Co. v. Hicks

• Decision Date: 28 April 1942
• Docket Number: 27632.
• Citation: 41 N.E.2d 195,220 Ind. 86
• Court: Indiana Supreme Court
• Parties: L. S. AYRES & CO. v. HICKS.

41 N.E.2d 195

220 Ind. 86

L. S. AYRES & CO. v. HICKS.

No. 27632.

Supreme Court of Indiana

April 28, 1942

For prior opinion, see 40 N.E.2d 334.

Appeal from Morgan Circuit Court, Morgan County; Omer O'Harron judge.

James W. Fesler, Harvey J. Elam, Howard S. Young Irving M. Fauvre, and Howard S. Young, Jr., all of Indianapolis (Homer Elliott, of Martinsville, of counsel) for appellant.

Earl B. Barnes, Hubert Hickam, Kurt F. Pantzer, Alan W. Boyd, and Thomas M. Scanlon, all of Indianapolis (S. C. Kivett, of Martinsville, of counsel), for appellee.

SHAKE Chief Justice.

The appellee's petition for rehearing challenges only that part of the foregoing opinion which holds that reversible error was committed in the giving of the appellee's Instruction No. 6. It is urged that: (1) Any error in the giving of this instruction was waived if it was presented; (2) Standing alone, the instruction is not erroneous; and (3) It is not erroneous when considered with Instruction Nos. 7 and 8 tendered by the appellant and given to the jury.

As to the first point it may be observed that it affirmatively appears from the record and from the appellant's original brief that the giving of Instruction No. 6 was one of the grounds of the motion for a new trial and that the overruling of this motion was duly assigned as error on appeal. The proposition supporting this assigned error was stated in the appellant's original brief as follows: 'There was error in the sixth instruction requested by plaintiff and given, which instruction improperly included humiliation as an element of plaintiff's damages'. This was followed by the citations of many authorities. The question arises then whether we went outside the briefs in concluding that Instruction No. 6 was bad because it embraced improper elements of damages other than humiliation. While alleged errors not presented and discussed in the appellant's brief will be treated as waived, this court does not regard itself as required to accept or reject the specific reasons advanced by a litigant to sustain his contentions. Keeshin Motor Express Co. v. Glassman, 1942, Ind.Sup., 38 N.E.2d 847. The practice rule to the effect that alleged errors, not specifically pointed out in the appellant's brief, will be treated as waived was not intended to circumscribe the reviewing tribunal. The purpose of the rule is to relieve the court of the burden of searching the record and briefing the case and to place that responsibility on the party asserting error. It will not be carried so far as to require the court to close its eyes to that which is apparent.

To do so would not infrequently place us in the unhappy situation of lending tacit approval to an instruction palpably bad on its face, and this could only result in confusing the law and misleading the profession. In Big Creek Stone Co. et al. v. Seward et al., 1895, 144 Ind. 205, 210, 42 N.E. 464, 43 N.E. 5, it was observed in this connection that 'If the court were limited to the arguments and reasoning of counsel in its decisions of cases, to the exclusion of its own observations, many cases would lead us far from what we understand to be the true object of the court'. In the instant case we have done nothing more than to state cogent reasons, not advanced by counsel, to sustain an assignment, properly made and presented, to the effect that reversible error was committed in the giving of the appellee's sixth instruction. It should be noted that the practice in this regard has been changed by Rule 1-7, not in effect at the time the case at bar was tried, which provides that no error with respect to the giving of instructions shall be available as cause for a new trial or on appeal except upon the specific objections made before argument.

The appellee's Instruction No. 6 was as follows: 'If under the law and the evidence in this case, you find that the plaintiff is entitled to recover, it will then become your duty to fix or determine the amount of his damages. In determining the amount of damages which you will award plaintiff, it is proper to consider every phase of his injuries, as charged in the complaint, and which you find have been established by a preponderance of the evidence. You may consider the kind and character of his injuries, whether the same are temporary or permanent, any physical pain or mental suffering or humiliation which the plaintiff has suffered or will suffer in the future, if the same be shown by the evidence. It is also proper for you to consider, if shown by the evidence, the effect of the injuries which plaintiff has sustained upon his ability to earn money after he becomes 21 years of age from any proper business, calling, or profession, and the kind and character of work which plaintiff will be prevented from doing after becoming 21 years of age, as a result of his injuries, if shown by the evidence, and from a consideration of all the facts shown in evidence bearing upon said subject, it will then be your duty to award the plaintiff such sum as will...