Allison v. Boles, No. 20669

Docket NºNo. 20669
Citation141 Ind.App. 592, 230 N.E.2d 784
Case DateNovember 13, 1967
CourtCourt of Appeals of Indiana

Page 784

230 N.E.2d 784
141 Ind.App. 592
Leo P. ALLISON, Appellant,
v.
Nolan F. BOLES, Appellee.
No. 20669.
Appellate Court of Indiana, Division No. 1.
Nov. 13, 1967.
Rehearing Denied Dec. 18, 1967.

[141 Ind.App. 594]

Page 785

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.

COOPER, Judge.

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[141 Ind.App. 595] 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,

Page 786

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...

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19 practice notes
  • Northern Indiana Public Service Co. v. Otis, No. 468A78
    • United States
    • Indiana Court of Appeals of Indiana
    • August 27, 1969
    ...Ill.App.2d 163, 191 N.E.2d 628 (1963), and Wytupeck v. Camden, 25 N.J. 450, 136 A.2d 887 (1957). Recently, in Allison v. Boles, Ind.App., 230 N.E.2d 784 (1967) quoted with approval was an excellent statement of the applicable rule by Chancellor Kent in Coleman v. Southwick, 9 Johns, N.Y., 4......
  • American Optical Co. v. Weidenhamer, No. 2-1276A462
    • United States
    • Indiana Court of Appeals of Indiana
    • April 23, 1980
    ...in determining whether to reverse an action on the grounds of excessive damages were distinctly articulated in Allison v. Boles, (1967) 141 Ind.App. 592, 597-98, 230 N.E.2d 784, 787 as "The general rule of law applicable which has been the one recognized for over a hundred years, is to......
  • Charlie Stuart Oldsmobile, Inc. v. Smith, No. 2--1274A289
    • United States
    • Indiana Court of Appeals of Indiana
    • November 22, 1976
    ...Ind.App., 314 N.E.2d 758; Northern Indiana Pub. Serv. Co. v. Otis (1969), 145 Ind.App. 159, 250 N.E.2d 378; Allison v. Boles (1967), 141 Ind.App. 592, 230 N.E.2d 784; First Bank & Trust Co. v. Tellson (1954), 124 Ind.App. 478, 118 N.E.2d 496. No evidence was introduced justifying a judg......
  • Old Town Development Co. v. Langford, No. 2--973A207
    • United States
    • Indiana Court of Appeals of Indiana
    • June 17, 1976
    ...by Langford in the loss of his two minor children, Denise, age 11, and Gregory, age 19. Hahn v. Moore, supra; Allison v. Boles (1967), 141 Ind.App. 592, 230 N.E.2d 784. Langford also had incurred certain medical, hospital and funeral expenses totalling Three Thousand Nine Hundred Forty-Seve......
  • Request a trial to view additional results
19 cases
  • Northern Indiana Public Service Co. v. Otis, No. 468A78
    • United States
    • Indiana Court of Appeals of Indiana
    • August 27, 1969
    ...Ill.App.2d 163, 191 N.E.2d 628 (1963), and Wytupeck v. Camden, 25 N.J. 450, 136 A.2d 887 (1957). Recently, in Allison v. Boles, Ind.App., 230 N.E.2d 784 (1967) quoted with approval was an excellent statement of the applicable rule by Chancellor Kent in Coleman v. Southwick, 9 Johns, N.Y., 4......
  • American Optical Co. v. Weidenhamer, No. 2-1276A462
    • United States
    • Indiana Court of Appeals of Indiana
    • April 23, 1980
    ...in determining whether to reverse an action on the grounds of excessive damages were distinctly articulated in Allison v. Boles, (1967) 141 Ind.App. 592, 597-98, 230 N.E.2d 784, 787 as "The general rule of law applicable which has been the one recognized for over a hundred years, is to......
  • Charlie Stuart Oldsmobile, Inc. v. Smith, No. 2--1274A289
    • United States
    • Indiana Court of Appeals of Indiana
    • November 22, 1976
    ...Ind.App., 314 N.E.2d 758; Northern Indiana Pub. Serv. Co. v. Otis (1969), 145 Ind.App. 159, 250 N.E.2d 378; Allison v. Boles (1967), 141 Ind.App. 592, 230 N.E.2d 784; First Bank & Trust Co. v. Tellson (1954), 124 Ind.App. 478, 118 N.E.2d 496. No evidence was introduced justifying a judg......
  • Old Town Development Co. v. Langford, No. 2--973A207
    • United States
    • Indiana Court of Appeals of Indiana
    • June 17, 1976
    ...by Langford in the loss of his two minor children, Denise, age 11, and Gregory, age 19. Hahn v. Moore, supra; Allison v. Boles (1967), 141 Ind.App. 592, 230 N.E.2d 784. Langford also had incurred certain medical, hospital and funeral expenses totalling Three Thousand Nine Hundred Forty-Seve......
  • Request a trial to view additional results

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