Annadall v. Union Cement & Lime Co.

• Decision Date: 08 April 1908
• Docket Number: No. 6,286.,6,286.
• Citation: Annadall v. Union Cement & Lime Co., 42 Ind.App. 264, 84 N.E. 359 (Ind. App. 1908)
• Parties: ANNADALL v. UNION CEMENT & LIME CO.
• Court: Indiana Appellate Court

42 Ind.App. 264

84 N.E. 359

ANNADALL

v.UNION CEMENT & LIME CO.

No. 6,286.

Appellate Court of Indiana, Division No. 2.

April 8, 1908.

Appeal from Circuit Court, Clark County; H. C. Montgomery, Judge.

Action by John W. Annadall against the Union Cement & Lime Company. From a judgment for defendant, plaintiff appeals. Affirmed.

George H. Voigt, for appellant. M. Z. Stannard and Ward H. Watson, for appellee.

COMSTOCK, J.

Action by appellant to recover damages for personal injuries alleged to have been sustained by him while in the service of appellee. The issue was formed by the complaint and general denial. The cause was tried by jury, and a verdict returned for defendant.

The error assigned is the overruling of appellant's motion for a new trial. The only ground relied upon for reversal is the refusal of the trial court to permit the jurors, while the jury was being impaneled to try the cause, and before plaintiff had made any peremptory challenges, to answer the following question propounded by plaintiff's attorney, to wit, which question is hereinafter set out in special bill of exceptions No. 4. Said bill of exceptions is in the following language: “Be it remembered that after this cause had been called for trial, and while the jury was being impaneled to try the same, and the jury panel being full, the court required the plaintiff to state whether or not he was satisfied with the jury as then constituted, and thereupon the attorney for the plaintiff propounded the following question to the panel, as then constituted: ‘Gentlemen of the jury, I will ask you, and each of you, whether you have any financial interest in the Travelers' Insurance Company?’ To which question the attorney for defendant objected, and thereupon the attorney for the plaintiff stated to the court that he propounded the question for the purpose of determining whether or not the plaintiff would peremptorily challenge any of the jurors. The plaintiff's attorney further stated to the court that, in order to determine whether or not he should make such peremptory challenge, it would be necessary to know the answers of the jurors to said question. That the defendant company was insured by said Travelers' Insurance Company against any loss said defendant company might sustain by reason of this action, and said insurance company was financially interested in the result of this action. Thereupon the court refused to permit the jurors or any of them to answer said question, to which action of the court the plaintiff at the time excepted. That at the time said question was propounded by plaintiff's attorney the plaintiff had not made any peremptory challenges of the jurors, and that the persons who filled said panel at the time said question was asked, excepting three afterwards challenged by plaintiff and two by the defendant, were afterwards accepted and sworn as the jurors to try said cause and said jurors so selected to try said cause.” Only errors affecting the substantial rights of litigants are causes for reversal. Burns' Ann. St. 1901, § 401; Horner's Ann. St. 1901, § 398; Terre Haute Electric Co. v. Watson, 33 Ind. App. 124, 70 N. E. 993. Nothing appearing to the contrary, it will be presumed on appeal that the motion for a new trial was properly overruled. Citizens' Street R. Co. v. Marvil, 161 Ind. 506, 67 N. E. 921;Colles v. Lake Cities, etc., Co., 22 Ind. App. 86, 53 N. E. 256; Thornton's Ann. Civ. Code, p. 801 (30), and cases cited.

It follows that the party seeking the reversal has the burden of showing that his substantial rights were prejudiced by the ruling of which he complains. It has been held in this state that, unless the record contains the entire voir dire examination of jurors, the action of the trial court here sought to be presented will not be reviewed. Indianapolis, etc., R. Co. v. Pitzer, 109 Ind. 179, 6 N. E. 310, 10 N. E. 70, 58 Am. Rep. 387;Johnson v. Holliday, 79 Ind. 151;Douthitt v....