Continental Optical Co. v. Reed

• Decision Date: 14 October 1949
• Docket Number: 17828.
• Citation: Continental Optical Co. v. Reed, 119 Ind.App. 643, 88 N.E.2d 55 (Ind. App. 1949)
• Parties: CONTINENTAL OPTICAL CO. v. REED.
• Court: Indiana Appellate Court

88 N.E.2d 55

119 Ind.App. 643

CONTINENTAL OPTICAL CO. v. REED.

No. 17828.

Appellate Court of Indiana, in Banc.

October 14, 1949

John M. Miller, George C. Forrey, III, Edward B. Raub, Jr., Jacob S. White, Indianapolis (D. P. Williams White, Wright, Raub & Forrey, Indianapolis, Branigin & Branigin, Franklin, of counsel), for appellant.

Bachelder Bachelder & Fife, Indianapolis, W. C. Bachelder Indianapolis, Hugo Hendricks, St. Paul, Minn., Eugene M Fife, Jr., Indianapolis, Haymaker & Acher, Franklin, for appellee.

CRUMPACKER, Judge.

The appellant and the appellee have each filed a petition for the rehearing of this appeal. Among other things the appellant complains of our failure to discuss and decide the questions raised concerning instructions given and refused. Our reasons for not doing so are now unimportant as we have concluded that the appellant is entitled to the court's opinion in reference thereto. The appellant's propositions concerning instructions fall in four classes: (1) the failure of the court to give general instructions, on its own motion, as mandated by statute; (2) error in giving certain instructions on its own motion; (3) error in refusing certain instructions tendered by the appellant; and (4) error in refusing to instruct the jury, both at the close of the plaintiff's case and at the conclusion of all the evidence, to return a verdict for the defendant.

In reference to the first category the court gave 13 instructions on its own motion of which 4 and 5 are general instructions pertaining to burden of proof and preponderance of the evidence. No. 2 is a general instruction foreclosing the jury's right to consider pleadings as evidence of the facts alleged. No. 3 deals with those allegations of the complaint which the answer admits, thus dispensing with proof, and those which it denies, thus requiring proof. There is no other instruction on the issues but all pleadings were sent to the juryroom for the jury's use in arriving at a verdict. While we do not commend this practice we cannot say that it does not apprise the jury of the issues they are called upon to try.

As to the other instructions given by the court on its own motion, falling in category (2) above mentioned, they are erroneous to the extent that they assume that the appellant had a property right in the particular negative involved and reprints therefrom and permit a recovery for the unauthorized use thereof. ...