Automobile Underwriters v. Rich

• Decision Date: 11 January 1946
• Docket Number: 17377.
• Citation: 64 N.E.2d 305,116 Ind.App. 511
• Parties: AUTOMOBILE UNDERWRITERS, Inc., v. RICH.
• Court: Indiana Appellate Court

64 N.E.2d 305

116 Ind.App. 511

AUTOMOBILE UNDERWRITERS, Inc., v. RICH.

No. 17377.

Appellate Court of Indiana, in Banc.

January 11, 1946

Appeal from Boone Circuit Court; Ernest R. Stewart, Judge.

Fenton, Steers, Beasley & Klee, of Indianapolis, and Parr, Parr & Parr, of Lebanon, for appellant.

Seth Ward, of Indianapolis, Scifres & Hollingsworth and John Hornaday, all of Lebanon, and Edwin McClure, of Indianapolis for appellee.

DRAPER Judge.

The appellee sustained an injury to her left knee, alleged to have been caused by the negligent operation of a truck by appellant's assured. Thereafter the appellant obtained a release and covenant not to sue. This action was brought by the appellee against the appellant to recover damages alleged to have been sustained by appellee because of the fraud of appellant's agent in obtaining the release and covenant.

A judgment in favor of appellee upon a former trial was reversed by the Supreme Court (222 Ind. 384, 53 N.E.2d 775) and the cause was remanded and retried. The appellee again recovered on the same complaint and this appeal followed.

In the opinion above referred to, the allegations of the complaint were summarized by the Supreme Court and those on the issue of fraud were separated, numbered and set out as follows '* * * Harvey, the agent of appellant made the following statements to the appellee, upon which she relied and which induced her to sign the release and covenant not to sue: 1. That he was an attorney and acquainted with her rights; 2. that she needed no attorney to inform her of her rights; 3. that one hundred fifty dollars ($150.00) was the greatest amount she could hope to recover; 4. that unless she took this sum and made settlement she would receive nothing; 5. that he had investigated her injuries and that they were not permanent but merely temporary and that she could go to work in a few days; 6. that if she filed suit it would of necessity be in Bartholomew County and that a farmer jury of that county would give her nothing; 7. that even if she did recover she would need attorneys and that the attorneys would take all that would be awarded her.'

The appellant first relies for reversal upon the proposition that the verdict is not sustained by sufficient evidence. The Supreme Court held the evidence upon the former trial to be insufficient to sustain the verdict, and we must, therefore, consider the extent to which that court's decision has become the law of the case.

The decision of the Supreme Court as to the sufficiency of the evidence to sustain the verdict is the law of the case upon the facts then before it. If the appellee's evidence, or the evidence favorable to the appellee as shown by the record before us, is the same or substantially the same as on the first trial, we are required to hold, as did the Supreme Court, that it is not sufficient to sustain the verdict. Additional evidence, merely cumulative, is not enough. It must be substantially different and warrant a different conclusion. Westfall v. Wait, 1905, 165 Ind. 353, 73 N.E. 1089, 6 Ann.Cas. 788; Riesbeck Drug Co. v. Wray, Adm'x, 1941, 111 Ind.App. 467, 39 N.E.2d 776.

To ascertain what facts were before the Supreme Court on the former appeal, and to what extent the decision there made is the law of the case, we may look to the record in that case. Westfall v. Wait, supra.

The Supreme Court held that all of the allegations of the complaint on the issue of fraud except the one referred to as number five, were mere assertions or matter of opinion, as to which there was no evidence of their falsity. No other or different evidence, not cumulative, was offered in support of these allegations, and so we characterize them as did the Supreme Court, and find no evidence that Harvey knew or believed differently than he expressed himself with regard to those matters.

Additional evidence with respect to the allegation numbered five was offered at the second trial. The appellee testified at the first that Harvey told her he had talked with her physician and her physician told him her injuries were temporary and not permanent. At the second she testi...