Fisher v. Driskell

• Decision Date: 31 October 1958
• Docket Number: No. 18944,No. 1,18944,1
• Parties: Roosevelt FISHER, Appellant, v. Mack DRISKELL, Appellee
• Court: Indiana Appellate Court

Page 605

153 N.E.2d 605

129 Ind.App. 29

Roosevelt FISHER, Appellant, v. Mack DRISKELL, Appellee.

No. 18944.

Appellate Court of Indiana, Division No. 1.

Oct. 31, 1958.

Arthur Griffith, Griffith, Bates & Hancock, Evansville, for appellant.

Ortmeyer, Bamberger, Ortmeyer & Foreman, Evansville, for appellee.

COOPER, Judge.

This was an action brought by the appellant against the appellee for personal injuries and property damage alleged to have been sustained as the result of the appellee's negligence in the operation of a motor vehicle. There was a jury trial and a verdict and judgment in favor of the appellee on both of the paragraphs of the appellant's complaint. This appeal followed a denial of a motion for a new trial.

The error assigned is the overruling of the appellant's motion for a new trial.

There were seven separate and distinct grounds in the appellant's motion for a new trial. The argument section of the appellant's brief does not discuss any points or authorities with reference to six of the causes of the appellant's motion for a new trial and in oral argument before this court, the appellant admitted that any alleged error with respect thereto was waived.

This leaves only number 3(a) of the appellant's motion for a new trial, relating to certain rulings of the trial court, for us to consider.

The rulings objected to were made upon cross examination of the plaintiff wherein he was trying to establish an allegation of his second paragraph of complaint, namely, that 'plaintiff's automobile was damaged beyond repair'.

Appellant complains of the action of the trial court in overruling his objections to the following three questions. The questions, the objection and the court rulings on each of the same are as follows:

'Q. Now did you have the car repaired there? A. No.

'Q. And was the car repaired?

'Objection. (by counsel) Your Honor, I object to that. That has nothing whatsoever to do with this. What happened after that.

'Court: I will overrule the objection.'

The basis of the appellant's objection to the second question is in substance approximately the same as in the first question. The crux of the objection being, '* * * whether the automobile was repaired and what it was repaired with is certainly immaterial in this cause of action'.

'Q. And what was it repaired with?

'Objection: (by counsel) Your Honor, I am objecting to that question on the grounds that what happened to whether the automobile was repaired and what it was repaired with is certainly immaterial in this cause of action.

'Court: I will overrule the objection.

* * *

* * *

'Q. In other words it was repaired with the same kind of an automobile.

'Objection: (by counsel) Your Honor, I am objecting to that question because unless it shows it was repaired by the refendant it is certainly immaterial in this case.

'Court: I will overrule the objection. Read the question.'

Thus, as it is apparent that the same questions of law are involved in each of the appellant's foregoing objections to the three questions, we shall discuss them jointly.

The rule of law regarding the sufficiency of the objections to the admission of evidence is well established in our state. It is stated in Fame Laundry Co. of Indiana v. Henry, 1924, 195 Ind. 453, 461, 144 N.E. 545, 547, 'When objections are made to the admission of evidence the grounds of the objection must be fully and definitely stated.' Citing authorities.

In commenting upon the above rule of law, our court, in the case of Gary Fish Co. v. Leisure, 1951 (T.D.1952), 122 Ind.App. 190, 195, 102 N.E.2d 209, 211, stated:

'The reasons for the rule are: First, that the court under the pressure of trial may intelligently rule on the objection, and second, that counsel for the opposing party may have the opportunity to obviate the objection if well taken.'

Our court further stated:

'No specific ground or rule of law governing the admissibility of the particular evidence sought to be elicited from the witness was incorporated in the objection. We are constrained to hold that the objection was fatally defective in that it failed to 'fully and definitely' state the grounds on which it was based, and that the trial court committed no error in permitting the question to be...