Clinton G. Cauldwell, Inc. v. Patterson

Decision Date04 October 1961
Docket NumberNo. 2,No. 19227,19227,2
Citation177 N.E.2d 490,133 Ind.App. 138
PartiesCLINTON G. CAULDWELL, INC., United Taxi Company, Inc., Earle Covalt, Appellants, v. Clifford PATTERSON, Appellee
CourtIndiana Appellate Court

Brunner, Brown & Brunner, Shelbyville, Paul E. Blackwell, Rochford, Blackwell & Rochford, Indianapolis, of counsel, for appellants.

Townsend & Townsend, Earl C. Townsend, Jr., John F. Townsend, Indianapolis, H. Harold Soshnick, Shelbyville, for appellee.

BIERLY, Judge.

This is an action by Clifford Patterson, appellee, upon his complaint for damages for personal injuries arising out of an automobile collision.

In his amended complaint appellee alleges that the injuries he sustained were proximately caused by the negligence of appellant, Earle Covalt, who was an agent and operator of a taxicab owned by appellants, Clinton G. Cauldwell, Inc., and United Taxi Company, Inc.

The collision occurred at the corner of Ninth and Alabama Streets in the city of Indianapolis. Appellant, Clinton Cauldwell, Inc., filed a counterclaim for property damages to which appellee responded by way of an answer. The action brought against United Taxi Company, Inc., was dismissed.

Trial was had before a jury. The verdict was for appellee in the sum of $13,750.00 as damages. Appellant moved for a new trial which was overruled, and this appeal followed. Error assigned is that the court erred in overruling the motion for a new trial.

The motion for a new trial was predicated upon the following grounds:

'1. The verdict of the jury is not sustained by sufficient evidence.

'2. The verdict of the jury is contrary to law.

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

'4. Error of law occurring at the trial as follows: The court erred in giving to the jury, at the request of plaintiff, instructions numbered 2, 4, 5, 8, 10 and 16, to the giving of which the defendants at the time excepted, and to the giving of each of which instructions, the defendants duly objected within the proper time to each of said instructions, after the court had indicated the instructions would be given to the jury.

'5. Error of law occurring at the trial as follows: The court erred in refusing to give to the jury defendants' instructions numbered 1, 2, 4, 5, 6, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 22 and 29, to which rulings defendants at the time excepted.

'6. Error of law occurring at the trial as follows: The court erred in sustaining the plaintiff's objection to a question propounded to the defendants' witness, Patricia Ann Senteney, by defendants' attorney, Paul Blackwell, on direct examination, which question, the objection thereto, the court's ruling thereon, are in the words and figures following: * * *.' (The questions, answers, objections, and the ruling of the court are set out in full).

All of the instructions are not listed in appellants' brief, but after filing with this court a petition to amend their brief, and upon the same being granted, appellants filed an amendment to appellants' brief, which included all instructions omitted.

Appellants' first specification in their motion for a new trial was that the verdict of the jury is not sustained by sufficient evidence. It is a well settled rule that if there is some evidence of probative value to support the conclusion reached by the jury, the verdict will not be disturbed on appeal. Chi. & Cal. Dist. Transit, etc. v. Stravatzakes, 1959, 129 Ind.App. 337, 156 N.E.2d 902; Sims Mtr. Transp. Lines, Inc. v. Davis, Admx., 1955, 126 Ind.App. 344, 130 N.E.2d 82; Ludwick, Extr. et al. v. Banet et al., 1955, 125 Ind.App. 465, 124 N.E.2d 214; Sheets v. Voland, 1954, 124 Ind.App. 695, 119 N.E.2d 325.

At or around 5:30 P.M., Central Standard Time, February 11, 1956, appellee, Clifford Patterson, William Staggs and Mary Beed were riding in appellee's car, and proceeding in a southerly direction on Alabama Street in the city of Indianapolis. When they arrived at the intersection at Ninth and Alabama Streets, appellee's car struck appellants' taxicab which was entering Alabama Street from Ninth Street. As a result of this collision, appellee was injured about the mouth, the knees, and the hands.

Undisputed evidence discloses that stop signs were located at Ninth Street, requiring all traffic to stop prior to entering Alabama Street. It is argued by appellants that evidence was introduced purporting to show that Earle Covalt stopped parallel to the stop sign on Ninth Street. It is within the province of the jury and not the reviewing court to determine the weight of the evidence and the credibility of the witnesses. Gates et al. v. Petri, 1957, 127 Ind.App. 670, 143 N.E.2d 293. The same rule applies to appellants' argument that appellee was traveling about 45 miles per hour in an area where the speed limit was 30 miles per hour. Other evidence produced was to the effect that appellee was driving at the rate of 20 to 25 miles per hour. It is the province of the jury to evaluate the testimony of witnesses and having done so, it alone must reach a conclusion from evidence presented. This court will not disturb the decision or verdict of the jury unless it is apparent by the record that there is a total lack of evidence of probative value to sustain each material element essential to the plaintiff's recovery. Westfield Gas Corporation v. Hill, Ind.App.1960, 169 N.E.2d 726; Armstrong Cork Co. v. Maar, 1953, 124 Ind.App. 105, 111 N.E.2d 82 and Rehearing denied in 124 Ind.App. 105, 112 N.E.2d 240. It thus appears that appellants' argument and specification that the verdict is not sustained by sufficient evidence is without merit.

It is contended by the appellants (Specification No. 3) that the damages assessed by the jury are excessive. The evidence discloses that appellee suffered injury about the mouth, about the knees and hands. Evidence shows that appellee first consulted a physician within three or four days following the accident. The physician testified that appellee had a shallow cut about an inch long through one of the deep folds in the left palm; also, he suffered a bruised and shallow cut of the right leg about two inches below the bend at the knee joint, and three areas of bruises over the left knee and two others a short distance below the knee level; also, he suffered some swelling within the left knee joint. Although from the evidence, it appears that all other injuries healed, the left knee joint continued to give appellee trouble with a snapping in and out, or a locking and unlocking condition was apparent within the knee joint. Evidence further disclosed some apparent wasting away of the leg.

Appellee visited the physician several times and during the early visits the physician advised an operation on the knee joint. On or about the 19th of February, 1957, about one year after the accident, the physician urged appellee to undergo surgery on his knee. Appellee finally consented to an operation and entered hospital on December 15, 1957. In this operation on the knee a piece of cartilage was removed, and evidence of degeneration of tissue was evident. By testimony of the physician, the impairment of effective utility of the knee was reduced approximately twenty to twenty-five percent from a normal condition.

While $13,750.00 may appear to be a sizeable sum by way of damages in this case, yet it is not within the province of this court to arbitrarily charge said sum as being excessive. The trial court and jury noted the appearance of the plaintiff-appellee, heard his testimony, also the testimony of the medical expert, all other witnesses, and the instructions of the court. The determination of damages is largely a jury function. This court may interfere only when it appears obvious that the amount is so grossly excessive, as to induce belief that it was the result of prejudice, partiality or corruption. Chi. & Cal. Dist. Transit, etc. v. Stravatzakes, supra, 129 Ind.App. at page 354, 156 N.E.2d 902.

In the consideration of the amount of damages, if any, to be awarded, the jury may determine from the evidence, facts and inferences that may be drawn therefrom, the character of appellee's injuries, whether temporary or permanent, his physical and mental pain, if any, his suffering caused by and arising from his injuries, if any; also, any probable future pain, suffering and physical infirmities or disabilities, if any, resulting from said injuries. The jury may also consider expenses appellee incurred by way of medical and hospital services, medicine and fees by physician in treating the injuries. Evidence was introduced that by occupation, appellee was an automobile body repairman; that this employment required appellee to stoop and get in very uncomfortable positions to perform his assigned tasks. Appellee testified that his wage was determined by the amount of work accomplished and that the twenty to twenty-five percent impairment suffered because of his injuries reduced his income materially.

By way of stipulation, the life expectancy of appellee was thirty to thirty-five years, and that the probability was that said appellee's future livelihood depended upon his trade as an automobile body repairman.

It appears from all the evidence of probative value in this cause that the award of $13,750.00 to appellee cannot be considered as an award based on prejudice, passion or corruption. Damages will not be deemed based upon passion, prejudice or corruption, unless the size of the award cannot be explained on any other reasonable grounds. Chi. & Cal. Dist. Transit, etc. v. Stravatzakes, supra, 129 Ind.App. at page 337, 156 N.E.2d 902.

It is argued by the appellants, however, that appellee waited too long before submitting to an operation on his knee. The physician testified relative to the effect of the delay of the operation and the probable future effect of the leg or knee injury, to wit:

'I think I made the comment that...

To continue reading

Request your trial
18 cases
  • Pennsylvania R. Co. v. Mink
    • United States
    • Indiana Appellate Court
    • January 3, 1966
    ... ... Patterson v. Southern R. Co. of Ind., 1912, 52 Ind.App. 618, 99 N.E. 491; Cleveland, ... 373, 111 N.E.2d 483.' Leppert Bus Lines, Inc. v. Rayborn (1962), 133 Ind.App. 325, 331, 182 N.E.2d 260, 263; New York ... Cauldwell, Inc., et al. v. Patterson (1962), 133 Ind.App. 138, 157-158, 177 N.E.2d ... ...
  • Old Town Development Co. v. Langford
    • United States
    • Indiana Appellate Court
    • June 17, 1976
    ... ... deed dated the same day, Old Town conveyed title to that tract to Mey, Inc., an Indiana Corporation incorporated by Mitchell and of which Sidney D ... 251; Kline v. Kline (1922), 158 Ind. 602, 64 N.E. 9; Cauldwell, Inc. v. Patterson (1961), 133 Ind.App. 138, 177 N.E.2d 490 ... ...
  • Rocoff v. Lancella, 20599
    • United States
    • Indiana Appellate Court
    • October 14, 1969
    ... ...         In the case of Buck v. Del City Apartments, Inc., (1967) Okl., 431 P.2d 360, 363, the Oklahoma Supreme Court was presented ...         In the case of Cauldwell, Inc. et al. v. Patterson (1961) 133 Ind.App. 138, at page 154, 177 N.E.2d ... ...
  • Chrysler Corp. v. Alumbaugh, 3-1173A152
    • United States
    • Indiana Appellate Court
    • March 10, 1976
    ...Ind. 396, 229 N.E.2d 631; Loehr v. National Security Life Ins. Co. (1969), 144 Ind.App. 503, 247 N.E.2d 232; Cauldwell, Inc. v. Patterson (1961), 133 Ind.App. 138, 177 N.E.2d 490. Thus, while such instructions may be appropriate when the facts in evidence uniquely require application of the......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT