Alexander's Estate v. Alexander

• Decision Date: 14 January 1966
• Docket Number: No. 20220,No. 1,20220,1
• Citation: 138 Ind.App. 443,212 N.E.2d 911
• Parties: ESTATE of Fritz W. ALEXANDER, Sr. Deceased, Appellant, v. Arletha ALEXANDER, Appellee
• Court: Indiana Appellate Court

Page 911

212 N.E.2d 911

138 Ind.App. 443

ESTATE of Fritz W. ALEXANDER, Sr. Deceased, Appellant, v. Arletha ALEXANDER, Appellee.

No. 20220.

Appellate Court of Indiana, Division No. 1.

Jan. 14, 1966.

[138 INDAPP 445]

Work & Kimbrough, Gary, Bowen, Myers, Northam & Givan, Indianapolis, for appellant.

David P. Stanton, Gary, for appellee.

CARSON, Judge.

This is an appeal from a verdict and judgment growing out of an action instituted in Lake County Superior Court, Room 4. The issues were formed upon the claim of the plaintiff below, appellee herein, against the estate of the decedent for personal services rendered to the decedent in his lifetime. To the claim the defendant filed answer in three paragraphs under the provisions of Supreme Court rule 1-3. The first paragraph of answer denied each and every allegation of the claim. The second paragraph affirmatively sets out that the claimant and the decedent were brother and sister and that because of love and affection between the parties any services rendered were gratuitous. The third paragraph alleged that an agreement had been entered into whereby the decedent had agreed to pay the sum of $50.00 per month plus room and board to the claimant and that from August, 1955, until the date of death of the decedent the petitioner received the payments and subsistence pursuant to the terms of the agreement.

[138 INDAPP 446] Upon the issues thus formed the matter was submitted to the jury for determination which resulted in a verdict for the plaintiff in the amount of $14,500.00 upon which the court rendered consistent judgment. The appellant filed a motion for new trial containing 22 specifications some of which we will summarize and treat collectively. They are summarized as follows:

1. The verdict of the jury is contrary to law.

2. The verdict of the jury is not sustained by sufficient evidence.

3. The verdict was excessive in that the damages awarded claimant by the jury herein were not sustained by evidence.

Specifications 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 each individually raised a question with respect to a ruling of the court in admitting into evidence over the objection of the defendant testimony of certain witnesses on direct examination, cross examination, and re-direct examination.

Specification 15 charges that the court erred in admitting into evidence over the objection of the defendant the alleged will of the decedent.

Specifications 16 and 17 charge that the court erred in calling as its own witness over the objection of the defendant the claimant, and in permitting the claimant to testify as to conversations and transactions between herself and the decedent in that such procedure contravened the policy set forth by the legislature in Sec. 2-1715, Burns' 1946 Replacement.

Specifications 18 and 19 charge the court with error in sustaining an objection of the plaintiff to certain evidence offered by the defendant and in excluding such evidence.

Specification 20 charges the court with error in refusing to allow defendant's counsel to rebut an argument of plaintiff's counsel made in the presence of the jury and charging that the plaintiff's argument was highly prejudicial to the case of the defendant.

[138 INDAPP 447] Specification 21 charges the court with error in giving plaintiff's tendered instructions numbers 1, 4, 5, 8 and 9.

Specification 22 charges that the court erred in refusing to give defendant's tendered instruction number 4.

The sole assignment of error is that the court erred in overruling appellant's motion for new trial. We shall consider the assignments in the order in which we have grouped them in this opinion.

Since the evidence in this case is in conflict, the effect of appellant's specification number 1 would require us to weigh the evidence and substitute our judgment for that of the trier of the fact. We have repeatedly held that we will not do this. State ex rel. Zilky v. Lake Superior Court (1961), 242 Ind. 128, 175 N.E.2d 9. Flanagan, Wiltrout & Hamilton, Sec. 2786, Indiana Trial and Appellate Practice, 1963 Pocket Parts, and cases cited therein.

[2, 3] Under specification number 2 and the rules laid down by our Supreme Court in the case of Pokraka v. Lummus Co. (1952), 230 Ind. 523, 104 N.E.2d 669, Hinds, Executor Etc. v. McNair, et al. (1955), 235 Ind. 34, 129 N.E.2d 553, we are required to consider the evidence most favorable to the appellee and all reasonable inferences which can be drawn therefrom and determine whether or not reasonable minded men would have arrived at a conclusion different than that arrived at by the trier of the fact. We conclude upon application of the above rule an opposite result would not necessarly be the only one reached and therefore the verdict of the jury is not contrary to law.

Specification number 3 in the appellant's motion for new trial is not sustained by cogent argument and the application of authorities in the appellant's brief. The appellant has stated only conclusions and has fallen far short of the requirements under Supreme Court rule 2-17. See Flanagan, Wiltrout & Hamilton, Sec. 2677, Indiana Trial and Appellate Practice, Pocket Parts 1963. There is therefore no [138 INDAPP 448] question presented for our consideration in this appeal as to specification number 3.

With respect to specifications 4, 6, 7, 9, 11, 13 and 14 we conclude from the record that the objections were not properly saved in the appellant's motion for new trial. Our courts have held that the motion for new trial must present the errors of law relied on in such a manner that the trial court had on opportunity to correct such rulings and must be sufficiently definite to show error to this court. Durham v. City of Indianapolis (1952), 123 Ind.App. 74, 108 N.E.2d 205; Crawford v. State ex rel. Anderson (1949), 227 Ind. 665, 87 N.E.2d 877.

A careful consideration of appellant's brief indicates that no argument is presented with respect to propositions 5, 8, 10 and 12 and the same are therefore deemed waived.

The burden is upon the appellant to establish by his brief and to show by proper reference to the transcript and by cogent argument and the citation of authorities that reversable error has been committed by the trial court. A general summarization in the appellant's brief containing reference to pages and lines in the transcript is not a compliance with the rules of the Supreme Court and the decisions of that court in interpreting rule 2-17. Sinks, Taylor v. State (1956), 235 Ind. 484, 133 N.E.2d 563. We have pointed out many times that only one judge has the transcript and the burden is upon the appellant to estabish by his brief the facts supporting the assignments contained in his motion for new trial. In this connection we call attention to the language of the court in the case of Barker, Gdn. v. Central Bldg. & Loan Ass'n. (1932), 94 Ind.App. 661, 182 N.E. 90. It is our opinion that specifications 18 and 19 as set out and argued in the appellant's brief fall short of meeting the above requirements.

[138 INDAPP 449] Specification 15 is based upon the assignment that the court erred in admitting over the objection of the appellant the will of the decedent. There is nothing contained any place in appellant's brief except the conclusions of the appellant to the effect and content of the will. The condensed recital of the evidence in the brief does not set out in material substance or by copy the will in question. This point therefore does not comply with the rules concerning Appellate procedure and the same will not be...