Fechtman v. Stover

• Decision Date: 12 December 1963
• Docket Number: No. 30483,30483
• Citation: 194 N.E.2d 623,244 Ind. 541
• Parties: Marguerite E. Maley FECHTMAN, Appellant, v. Mary Ham STOVER, Appellee.
• Court: Indiana Supreme Court

Page 623

194 N.E.2d 623

244 Ind. 541

Marguerite E. Maley FECHTMAN, Appellant, v. Mary Ham STOVER, Appellee.

No. 30483.

Supreme Court of Indiana.

Dec. 12, 1963.

Bredell, Cooper & Martin, C. Wendell Martin, Richard P. Nahrwold, Indianapolis, for appellant.

Ralph Hamill, John P Price, Joseph A. Kutch, Indianapolis, for appellee; Hollowell, Hamill & Price, Indianapolis, of counsel.

JACKSON, Judge.

This is an appeal from an action in the Marion Superior Court wherein appellee recovered a judgment against the appellant for damages in the sum of $10,000.00 on account of injuries sustained as a result of a fall on steps leading from the sidewalk to the level of the yard of residential premises located at 4832 East Tenth Street, Indianapolis, Marion County, Indiana, on March 9, 1956.

Appellant filed her timely motion for a new trial assigning five grounds therefor, in substance as follows:

1. Irregularity in the proceedings of the court by which defendant was prevented from having a fair trial, specifying two instances overruling defendant's pre-trial motions;

2. The verdict of the jury is not sustained by sufficient evidence;

3. The verdict of the jury is contrary to law;

4. Error of law occurring at the trial in substance as follows:

(a) Overruling defendant's motion at the close of all evidence to instruct the jury to return a verdict for the defendant;

(b) In refusing to give defendant's instructions 4, 5, 6, 8, 11, 12, 13, 14, 15, 20, 21, 24 and 25;

(c) In giving plaintiff's instructions 1, 2, 3, 4, 5, 6, 9, 10, 12, 13, 14, 15, 16, 19 20, 22, 25, 26 and 27, and to the giving of such instructions over proper objection of defendant;

(d) In giving the court's own instruction No. 11 over defendant's objection;

(e) In inadvertently giving plaintiff's instruction No. 27 and in giving court's instruction No. 11 after the court had indicated that he would not give said instructions, and to the giving of which defendant objected and for which error the defendant moved the court to withdraw the cause and set aside the submission thereof and to discharge the jury;

(f), (g), (h), (i), (j) and (k) relate to the court's rulings on motions filed by the defendant.

5. The damages assessed by the jury are excessive.

The single assignment of error is as follows:

'1. The court erred in overruling appellant's motion for a new trial.'

The order of the Appellate Court attempting to transfer this cause to this court, omitting caption and signature, reads as follows:

'It now appearing to the court from the record in this cause that the appellant has duly presented an alleged violation of the rights of the appellant guaranteed by the Constitution of the State of Indiana, which it is claimed are impaired by the statutes of the State of Indiana Designated as the Acts of 1945, ch. 54, commonly referred to as the Administrative Building Council Act, it is therefore hereby ordered:

'That this cause be transferred to the Supreme Court of Indiana, pursuant to the provisions of Sec. 4-217, Burns' 1946 Replacement and Rule 2-14 of the Supreme Court of Indiana. Done this 9th day of October.'

The only reference we find concerning the constitutionality of the Act is found in the argument section of appellant's brief at page 185, where appellant makes this statement:

'* * * While the appellant does not...