Armstrong Cork Co. v. Maar

• Decision Date: 14 May 1953
• Docket Number: No. 18320,18320
• Parties: ARMSTRONG CORK CO. v. MAAR.
• Court: Indiana Appellate Court

Page 240

112 N.E.2d 240

124 Ind.App. 105

ARMSTRONG CORK CO. v. MAAR.

No. 18320.

Appellate Court of Indiana, in Banc.

May 14, 1953.

Arthur C. Van Duyn, Greenfield, George C. Forrey, III, George N. Craig, Edward B. Raub, Jr., and Jacob S. White, Indianapolis, for appellant.

Davis & Williams, Greenfield, for appellee.

KELLEY, Judge.

Appellant petitions for rehearing specifying 8 contentions.

(1). Appellant suggests that the time of appellee's conversation with Given, the insurance adjuster, was the first week in March, 1947. The record may be somewhat confusing as to the exact circumstances. Appellee testified that he had a conversation about the matter four or five weeks after his injuries with a man whose name he did not then know. Later, in further testimony, it became apparent that the name of the insurance adjuster was 'Given'. However, we do not think the exact time is controlling. The basic question upon the issue was whether appellee had accepted money as compensation benefits. Under the pleadings framing such issue, the burden was on the appellant to prove its allegation that the appellee 'has accepted weekly benefits of compensation'. The jury's verdict on the issue was adverse to appellant. The giving by the court of Instruction No. 13 did not alter the situation. With reference to that instruction, we again refer appellant to the holdings of our court in the cases of Pittsburgh, C. C & St. L. R. Co. v. Keith, 89 Ind.App. 233, 146 N.E. 872 and Weis v. Wakefield, Ind.App., 38 N.E.2d 303, cited in the main opinion.

Appellant says that we did not state what evidence we had in mind when we stated 'and there is further evidence to the same effect. There was additional testimony given by the appellee which was of the same import as that quoted. Inferences could be also drawn from the testimony of Lawrence Shedd relative to Given's authority. Appellant apparently disregards the rule that on appeal we consider only the evidence most favorable to appellee.

(2). Appellant next says that we erred in 'holding that there was no error in admitting into evidence appellee's Exhibits 12, 13, 15, 16, and 31.' Apparently appellant has not thoroughly comprehended our opinion. We made no such holding. What we held was that said exhibits, admitted over the objection of appellant, had no probative value because the court gave appellant's tendered Instruction No. 12, which we set forth verbatim in the opinion. No other evidence was offered or admitted on the question. Further, by reason of such instruction given at appellant's behest, the latter waived its objections to the admission of the exhibits. Oglebay v. Tippecanoe Loan Company, 1907, 41 Ind.App. 481, 485, 82 N.E. 494.

(3). It is said that we erred in holding that it was not error to refuse appellant's tendered instruction No. 3. We see no force in this contention. We have again reviewed the court's Instruction No. 1, in the light of appellant's urging in the rehearing petition, and adhere to our said ruling.

(4). Appellant avers that the 'undisputed' evidence holds that Young was in the employ of Leslie Colvin and that we erred in holding that at the time of the accident he was in the employ of appellant. On page 189 of the transcript we find from the testimony of said Harve S. Young the following: Question: 'Were you (Young) working there about 11:30 or 12:00 o'clock on that day?' Answer: 'I was.' Question: 'And can you tell this jury at that time who you were employed by?'...