Allison v. Boles
| Decision Date | 13 November 1967 |
| Docket Number | No. 20669,No. 1,20669,1 |
| Citation | 141 Ind.App. 592,230 N.E.2d 784 |
| Parties | Leo P. ALLISON, Appellant, v. Nolan F. BOLES, Appellee |
| Court | Indiana Appellate Court |
William M. Evans, Indianapolis, for appellant, Gilbert W. Butler, Martinsville, Bose, Buchanan, McKinney & Evans, Indianapolis, of counsel.
James J. Stewart and Kent O. Stewart, Indianapolis, for appellee, John E. Hurt, Martinsville, Murray, Stewart, Irwin & Gilliom, Indianapolis, of counsel.
This is an appeal from an action brought by the Appellee against the Appellant to recover damages for the death of his two minor children, ages seven and eight, allegedly caused by the negligent operation of a motor vehicle by the Appellant.
The cause was submitted to the Court without the intervention of a jury and at the conclusion of all the evidence, the trial court rendered judgment for the Plaintiff-Appellee in the sum of Twenty Five Thousand ($25,000.00) Dollars, as damages for the death of his two children. Thereafter the Appellant filed a motion for a new trial, which was overruled and that ruling is the sole assignment of error in this appeal.
The Appellant's Motion for New Trial avers as error:
'1. Error in the assessment of the amount of recovery in the action for injury to the property right of the plaintiff in the earnings of his two deceased children, that the amount was too large, and adversely affects the substantial right of the defendant;
:2. The decision of the court is not sustained by sufficient evidence;
'3. The decision of the court is contrary to law;
'4. Error of law occuring at the trial, as follows:
'(a) The court erred in sustaining the objection of the Defendant to a question propounded by the Plaintiff during the direct examination of Paul Rolls, a witness called on behalf of the Plaintiff, and then subsequently reversing itself and stating that it would in fact consider as evidence in this cause the answer this witness assertedly would have given, as recited in the offer to prove of the Plaintiff's counsel. The question, objection, ruling of the court sustaining this objection, offer to prove, ruling on the offer to prove, and a subsequent ruling of the Court that it would consider this offer to prove as evidence in this cause are set forth in the underlined portions on pages 3, 4, 9, 10, 11 and 18 of a draft of the trial transcript attached hereto and made a part hereof as 'Exhibit A'.
'(b) The court erred in stating that it would consider as evidence in this cause a statement of Plaintiff's counsel made on behalf of Paul Rolls, a witness called on behalf of the Plaintiff, which statement was all that was ever offered at the trial on the earning prospects of Plaintiff's two deceased children, but which was never admitted into evidence. The question, objection ruling of the court sustaining this objection, offer to prove, ruling on the offer to prove, and a subsequent ruling of the Court that it would consider this offer to prove as evidence in this cause are set forth in the underlined portions on pages 3, 4, 9, 10, 11 and 18 of a draft of the trial transcript attached hereto and made a part hereof as 'Exhibit A'.
'(c) The Court erred in stating it would consider as evidence in this cause certain unsworn statements of Plaintiff's counsel contained in this offer to prove, relating to the earning prospects of Plaintiff's two deceased children, which statements were never introduced into evidence. The question, objection, ruling of the court sustaining this objection, offer to prove, ruling of the court on the offer to prove, and a subsequent ruling of the court that it would consider this offer to prove as evidence in this cause, are set forth in the underlined portions on pages 3, 4, 9, 10, 11 [141 Ind.App. 596] and 18 of a draft of the trial transcript attached hereto and made a part hereof as 'Exhibit A'.
'(d) The court erred in considering as evidence in this cause the answer Paul Rolls, a witness called on behalf of the Plaintiff, assertedly would have given to a question or questions directed to him by Plaintiff, which constituted all that was offered at the trial on the earning prospects of Plaintiff's two deceased children, for the reason that this witness was wholly incompetent and unqualified by training or experience or personal knowledge to give any testimony as to the future earning prospects of Plaintiff's two deceased children. The question, objection, offer to prove, ruling on the offer to prove, and a subsequent ruling of the court that it would consider this offer to prove as evidence in this cause are set forth in the underlined portions on pages 3, 4, 9, 10, 11 and 18 of a draft of the trial transcript attached hereto and made a part hereof as 'Exhibit A'.
'(e) The court erred in considering as evidence in this cause a statement of Plaintiff's counsel made on behalf of Paul Rolls, a witness called on behalf of the plaintiff, which statement wasl all that was ever offered at the trial on the earning prospects of plaintiff's two deceased children, for the reason that this statement did not relate in any way to the facts and circumstances of this particular case, or to the earning prospects of Plaintiff's two deceased children, or to the earning prospects of any one, in the future. The question, objection, ruling of the court sustaining this objection, offer to prove, ruling on the offer to prove, and a subsequent ruling of the court that it would consider this offer to prove as evidence in this cause, are set forth in the underlined portions on pages 3, 4, 9, 10, 11 and 18 of a draft of the trial transcript attached hereto and made a part hereof as 'Exhibit A'.
'(f) The court erred in failing or refusing to consider competent and uncontradicted evidence of the costs the plaintiff would have incurred to support and maintain his two deceased children, until their majority.'
The first specification of error raised by the Appellant is that the amount of recovery is excessive. We cannot agree with the Appellant's contention that an award of Twenty Five Thousand ($25,000.00) Dollars as damages in his case for the destruction of the Appellee's property rights was excessive. The property right which was destroyed was the Plaintiff's legal right as the father of his two children, to their earnings until their maturity. Thechildren were of the ages of seven and eight at the time of their unfortunate deaths.
Our courts have held in similar cases that the very nature of the action, the tender youth of the deceased and the uncertainty both of the length of the child's life and of its capacity of attainment while experiencing that life, renders impossible the exact proof of loss sustained by the parent. As a result, our law has recognized that such damages are incapable of determination by any mathematical or exact rule and the determination thereof must be left to the wisdom of the court or jury trying said cause, even though the verdict may be predicated upon a semblence of conjecture. Hahn et al. v. Moore (1956) 127 Ind.App. 149, at 163, 164, 133 N.E.2d 900, 134 N.E.2d 705; Clevenger v. Kern (1935) 100 Ind.App. 581, 584, 197 N.E. 731.
We do not deem it to be necessary to set forth the evidence relating to the potential earnings of the unfortunate children of the Appellee, but believe it sufficient to state that in reviewing such evidence in the record, we are of the opinion that the judgment of Twenty Five Thousand ($25,000.00) Dollars was well within the scope authorized by the evidence and the rules of law applicable thereto.
The rule is well established in this state that where the reasonable amount of recovery is in dispute under the evidence, the amount awarded cannot be considered excessive if it is within the scope of the evidence before the court. First Bank & Trust Company of South Bend, Executor of Estate of Spiro v. Tellson (1954) 124 Ind.App. 478, 484, 118 N.E.2d 496.
The amount of the judgment in this case does not seem to be excessive, when we recognize that the trial court was aware, as is this court, of the current inflated economy and the depreciated value of the dollar. The general rule of law applicable which has been the one recognized for over a hundred years, is to be found in the case of Coleman v. Southwick (1812) 9 Johns, N.Y., 45, 6 Am.Dec. 253, 254, wherein Chancellor Kent stated:
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