Grad v. Cross, No. 1-1178A314

Docket NºNo. 1-1178A314
Citation182 Ind.App. 611, 395 N.E.2d 870
Case DateOctober 29, 1979
CourtCourt of Appeals of Indiana

Page 870

395 N.E.2d 870
182 Ind.App. 611
Melvin P. GRAD, Robert H. Ahr and Capri Builders, Inc.,
Appellants-Defendants Below,
v.
Perry W. CROSS and Sybil S. Cross, Appellees-Plaintiffs Below.
No. 1-1178A314.
Court of Appeals of Indiana, First District.
Oct. 29, 1979.

Page 871

Bobby Jay Small, Indianapolis, Rex McCoy, McCoy & Husmann, Union City, for appellants-defendants.

John T. Cook and Peter D. Haviza, Winchester, Perry W. Cross and P. Gregory Cross, Muncie, for appellees-plaintiffs.

ROBERTSON, Judge.

Melvin P. Grad, Robert H. Ahr, and Capri Builders, Inc. appeal from a decision in a jury trial that awarded compensatory and punitive damages to Perry W. and Sybil S. Cross (Cross). The jury awarded compensatory damages against Grad, Ahr, and Capri in the amount of $11,250, and punitive damages against Ahr and Capri in the amount of $30,000. The compensatory damage award is not challenged in this appeal. Ahr and Capri Builders (hereinafter collectively referred to as Capri) raise certain questions, however, concerning the tender [182 Ind.App. 612] of two instructions regarding punitive damages, whether the evidence supported the award of punitive damages, and whether the amount of punitive damages was excessive. Finding no error in the proceedings below, we affirm.

In reviewing the evidence most favorable to Cross, the record reveals that Cross owned real estate adjoining land owned by Capri. The Cross-Capri common boundary was a straight line running at an approximate 4.5 degree angle in a slight northeasterly direction from the Cross' west boundary for approximately 457 feet. Located

Page 872

along the southern part of the Cross property was a wall-fence-gate line, that like the boundary line, began at the Cross' west boundary and ran to the east boundary line. The fence began at the west side common boundary point of the Cross-Capri property line, and proceeded in a northeasterly direction to the east boundary of the Cross property. The fence however, did not follow the property line, but rather deviated to the north at various depths ranging from a few feet, to over twenty two feet. It is this area, between the fence line and the common boundary, that is the subject matter of this suit.

Capri has argued in its brief that this court should reverse the punitive damage award based upon the rule established in Taber v. Hutson, (1854) 5 Ind. 322, to the effect that punitive damages cannot be assessed against defendants whose acts constituted crimes as well as torts. Capri did not make a specific objection nor tender an appropriate instruction to the trial court. The issue was first raised in their motion to correct errors. The trial court was entitled to have the specific errors in the tendered instructions set out by the defendant, so that the trial court could make the necessary corrections before submitting them to the jury. Scott v. Krueger et al., (1972) 151 Ind.App. 479, 280 N.E.2d 336. Therefore, since this objection was not made prior to final instructions, Capri has not properly preserved an issue for our review. Ind.Rules of Procedure, Trial Rule 51.

In regard to those issues properly preserved for our review, we first consider whether the evidence supported the award of punitive damages and if that award was excessive. An award of punitive damages is proper in a trespass action upon a showing of fraud, malice or oppressive conduct. Indiana & Michigan Electric Co. v. Stevenson, (1977) Ind.App., 363 N.E.2d 1254; Moore [182 Ind.App. 613] v. Crose, (1873) 43 Ind. 30; Nicholson's Mobile Home Sales, Inc., v. Schramm, (1975) Ind.App., 330 N.E.2d 785. Additionally, it is well settled that this court neither weighs the evidence nor resolves questions of credibility of the witnesses. An appellate court views the evidence most favorable to the appellee along with reasonable inferences therefrom, and if there is substantial evidence of probative value to support the decision, the decision will not be disturbed. Shahan v. Brinegar, (1979) Ind.App., 390 N.E.2d 1036; Reith-Riley Construction Co. v. McCarrell, (1975) Ind.App., 325 N.E.2d 844. We will...

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17 practice notes
  • Montgomery Ward & Co. v. Gregg, No. 41A01-8903-CV-63
    • United States
    • Indiana Court of Appeals of Indiana
    • May 31, 1990
    ...however, they do not amount to reversible error absent a showing that the instruction was in fact misleading. Grad v. Cross (1979), 182 Ind.App. 611, 395 N.E.2d 870, 873. The instruction is also not challengeable as an incorrect statement of the law simply because Page 1163 the language par......
  • Sigsbee v. Swathwood, No. 3-380A87
    • United States
    • Indiana Court of Appeals of Indiana
    • April 27, 1981
    ...is proper only upon a showing of fraud, malice or oppressive conduct. Moore v. Crose (1873), 43 Ind. 30; Grad v. Cross (1979), Ind.App., 395 N.E.2d 870; Indiana & Michigan Elec. Co. v. Stevenson (1977), Ind.App., 363 N.E.2d (d) lessor's set-off damages Our conclusion that the lessees did no......
  • Miller Pipeline Corp. v. Broeker, No. 2-682A163
    • United States
    • Indiana Court of Appeals of Indiana
    • February 27, 1984
    ...448; First Federal Savings & Loan Ass'n v. Mudgett (1st Dist.1979) Ind.App., 397 N.E.2d 1002; Grad v. Cross (1st Dist.1979) Ind.App., 395 N.E.2d 870. Broeker contends, however, that these decisions are not controlling. First, he argues that Indiana courts have not addressed the issue in the......
  • Sullivan v. Fairmont Homes, Inc., No. 29A02-8902-CV-00049
    • United States
    • Indiana Court of Appeals of Indiana
    • September 20, 1989
    ...reverse the judgment of the trial court for an error in an instruction which clearly did not affect the result. Grad v. Cross (1979), 182 Ind.App. 611, 395 N.E.2d 870, 873; State Exchange Bank of Culver v. Teague (1986), Ind.App., 495 N.E.2d 262, 270. The jury found against Sullivan on the ......
  • Request a trial to view additional results
17 cases
  • Montgomery Ward & Co. v. Gregg, No. 41A01-8903-CV-63
    • United States
    • Indiana Court of Appeals of Indiana
    • May 31, 1990
    ...however, they do not amount to reversible error absent a showing that the instruction was in fact misleading. Grad v. Cross (1979), 182 Ind.App. 611, 395 N.E.2d 870, 873. The instruction is also not challengeable as an incorrect statement of the law simply because Page 1163 the language par......
  • Sigsbee v. Swathwood, No. 3-380A87
    • United States
    • Indiana Court of Appeals of Indiana
    • April 27, 1981
    ...is proper only upon a showing of fraud, malice or oppressive conduct. Moore v. Crose (1873), 43 Ind. 30; Grad v. Cross (1979), Ind.App., 395 N.E.2d 870; Indiana & Michigan Elec. Co. v. Stevenson (1977), Ind.App., 363 N.E.2d (d) lessor's set-off damages Our conclusion that the lessees did no......
  • Miller Pipeline Corp. v. Broeker, No. 2-682A163
    • United States
    • Indiana Court of Appeals of Indiana
    • February 27, 1984
    ...448; First Federal Savings & Loan Ass'n v. Mudgett (1st Dist.1979) Ind.App., 397 N.E.2d 1002; Grad v. Cross (1st Dist.1979) Ind.App., 395 N.E.2d 870. Broeker contends, however, that these decisions are not controlling. First, he argues that Indiana courts have not addressed the issue in the......
  • Sullivan v. Fairmont Homes, Inc., No. 29A02-8902-CV-00049
    • United States
    • Indiana Court of Appeals of Indiana
    • September 20, 1989
    ...reverse the judgment of the trial court for an error in an instruction which clearly did not affect the result. Grad v. Cross (1979), 182 Ind.App. 611, 395 N.E.2d 870, 873; State Exchange Bank of Culver v. Teague (1986), Ind.App., 495 N.E.2d 262, 270. The jury found against Sullivan on the ......
  • Request a trial to view additional results

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