Barbee v. McKay, 20245

Decision Date29 July 1968
Docket NumberNo. 20245,No. 1,20245,1
Citation238 N.E.2d 690,143 Ind.App. 205
PartiesWilliam Frank BARBEE, Jr., Appellant, v. George McKAY, Appellee
CourtIndiana Appellate Court

Scott & Shine, Anderson, for appellant; John E. Scott, Anderson, of counsel.

Campbell, Malan, Kyle & Proffitt, Noblesville, for appellee; C. V. Malan, Noblesville, of counsel.

CARSON, Chief Justice.

This action was begun on January 4, 1962, in the Superior Court of Madison County by George McKay alleging that plaintiff's two (2) minor sons were killed in an accident because of the alleged wanton and wilful misconduct of the defendant.

Upon change of venue, the cause was transferred to the Hamilton Circuit Court. The issues were formed by appellee's amended complaint in one paragraph and appellant's answer under Rule 1--3 of the Rules of the Supreme Court of Indiana.

Trial was had by jury, which returned a general verdict for the plaintiff-appellee in the sum of eight thousand ($8,000) dollars and judgment was entered accordingly. Defendant-appellant then filed a motion for a new trial, which was overruled by the court.

Appellant's motion for a new trial contained fifteen (15) specifications of error. Specifications 8 through 15 were waived by appellant's failure to urge them in the argument portion of his brief. This leaves for our consideration only specifications 1 through 7 inclusive, which read as follows:

'1. The verdict of the jury is not sustained by sufficient evidence, and is contrary to law.

'2. The damages assessed by the jury are excessive.

'The only evidence of pecuniary damage to the plaintiff was with respect to the funeral expenses, same being in the neighborhood of $2,000.00, which hardly supports an $8,000.00 verdict. The only other evidence as to matters pecuniary was that the boys earned money working, that they were permitted to keep it, and that they were given allowances. There was, of course, evidence to the effect that it cost several hundred dollars per year to maintain them.

'3. The Court erred in allowing the plaintiff, after the conclusion of all the evidence, to amend his complaint by deleting from rhetorical paragraph 6(c) the following words:

'* * * the speed of said automobile immediately prior to the accident being in excess of 100 M.P.H. * * *'.

The Court authorized this amendment over the timely objection of the defendant that the amendment would change the issues upon which the case was submitted and tried, and that the authorization of the amendment would deprive the defendant of his right to file pleadings attacking the complaint, as amended, and would deprive the defendant of the right to require the plaintiff to state in his complaint the approximate speed at which the defendant was charged with operating his automobile. Furthermore, it is submitted that the complaint, as amended at this time, was made demurrable, and the act of the Court in permitting the amendment foreclosed the defendant from his opportunity to demur thereto.

'4. The Court erred in admitting into evidence, over the timely objection of the defendant, testimony of Max Manship with respect to the speed at which defendant was operating his automobile when momentarily observed by the witness.

'Said witness testified in substance that he saw the car of the defendant pass him at a point approximately one-half mile from the scene of the accident and that, at the time the car passed him, it was going between sixty and eighty miles per hour. The defendant objected to the testimony of this witness for the reasons that he was not properly qualified, and that there was not sufficient foundation laid upon which this witness could properly be qualified to give an opinion with respect to the speed of defendant's automobile. After all, at the time referred to by this witness, he was only twelve or thirteen years old, there was no evidence that he had ever driven an automobile, and the supposed basis for his qualification as an 'expert' on speed was that he had watched drag races on television and on State Road 132.

'5. The Court erred in overruling defendant's motion for a directed verdict at the conclusion of plaintiff's evidence.

'6. The Court erred in overruling defendant's motion for a directed verdict at the conclusion of all the evidence in the case.

'7. The Court erred in refusing to give defendant's instruction No. 9, which instruction was duly tendered and requested by the defendant.'

Under specification No. 7 above, appellant contends that the trial court erred in refusing to give defendant-appellant's instruction No. 9, which pertained to the amount of damages. Appellant does not argue this point in the argument portion of his brief and it is thereby waived. Instead, appellant urges error in the overruling of his objection to the submission of the court's instruction No. 13, which pertained to the measure of damages. The trial court's action in overruling instruction No. 13, is not an element of error for this court's consideration as it was not specified in the appellant's motion for a new trial.

Specification Nos. 5 and 6 above, proclaim error by the trial court in overruling defendant-appellant's motions for a directed verdict at the conclusion of the plaintiff's evidence and at the conclusion of all the evidence.

The trial court may only give a peremptory instruction to find for the defendant when there is a total lack of evidence or reasonable inferences to be drawn therefrom, which are in favor of the plaintiff; or where there is no conflict in the evidence and the evidence leads to but one inference and that is in favor of the defendant. Whitaker, Administrator of the Estate of Salyer, Deceased v. Borntrager (1954), 233 Ind. 678, 122 N.E.2d 734; Wade v. Three Sisters, Inc. (1962), 134 Ind.App. 58, 186 N.E.2d 22.

In order for a trial court to sustain a defendant's motion for a directed verdict at the conclusion of the plaintiff's evidence, or at the conclusion of all the evidence, it must consider the proposal within the following guidelines set forth by our Supreme Court in Whitaker v. Borntrager, supra, 233 Ind. at pages 680 and 681, 122 N.E.2d at page 734:

'When there is a total absence of evidence or legitimate inference in favor of the plaintiff upon an essential issue; or where the evidence is without conflict and is susceptible of but one inference and that inference is in favor of the defendant. * * *

'When there is some evidence or legitimate inference supporting each material allegation of the complaint, the court will not weigh the conflicting evidence or inferences but will consider only the evidence and inferences that are most favorable to the party against whom the motion for a peremptory verdict is directed. * * *

'In determining whether a peremptory instruction should be given the court must accept as true all facts which the evidence tends to prove and draw,...

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  • Yeager & Sullivan, Inc. v. O'Neill, 3--873A100
    • United States
    • Indiana Appellate Court
    • March 26, 1975
    ...or corruption. Penn Central Transportation Company v. Wilson (1973), Ind.App., 292 N.E.2d 827 (transfer denied); Barbee v. McKay (1968), 143 Ind.App. 205, 238 N.E.2d 690 (transfer denied); Bassemier v. Sartore (1964), 137 Ind.App. 139, 201 N.E.2d 285 (transfer The evidence most favorable to......
  • Andert v. Fuchs
    • United States
    • Indiana Appellate Court
    • October 31, 1978
    ...or reasonable inferences to be drawn therefrom which would support a finding of wanton or wilful misconduct. Barbee v. McKay (1968), 143 Ind.App. 205, 238 N.E.2d 690. This court applies the rule that the trial court should have left any weighing of the evidence to the jury to determine whet......
  • Dettman v. Sumner
    • United States
    • Indiana Appellate Court
    • February 11, 1985
    ...(1977) 173 Ind.App. 243, 363 N.E.2d 1018; Dudley Sports Co. v. Schmitt, (1972) 151 Ind.App. 217, 279 N.E.2d 266; Barbee v. McKay, (1968) 143 Ind.App. 205, 238 N.E.2d 690; Deming Hotel Co. v. Prox, (1968) 142 Ind.App. 603, 236 N.E.2d 613. Because Art. 1, Sec. 20 of the Indiana Constitution g......
  • Keck v. Kerbs, 3-378A64
    • United States
    • Indiana Appellate Court
    • October 24, 1979
    ...Ind. 414, 363 N.E.2d 985, 990; American Turners of South Bend v. Rodefer (1978), Ind.App., 372 N.E.2d 516, 517. See Barbee v. McKay (1968), 143 Ind.App. 205, 238 N.E.2d 690. A. Material On the afternoon of January 24, 1975, Thomas J. Kerbs, age 17 years, was among a group of boys who met at......
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