Hire v. Pinkerton, 18646

• Decision Date: 14 June 1955
• Docket Number: No. 18646,18646
• Citation: 127 N.E.2d 244,126 Ind.App. 23
• Parties: Merrill HIRE, Appellant, v. Raymond PINKERTON, Appellee.
• Court: Indiana Appellate Court

Page 244

127 N.E.2d 244

126 Ind.App. 23

Merrill HIRE, Appellant, v. Raymond PINKERTON, Appellee.

No. 18646.

Appellate Court of Indiana, In Banc.

June 14, 1955.

George L. Rulison, Ligonier, Bloom & Bloom, Columbia City, for appellant.

Rockhill, Vanderveer, Rowdabaugh & Lee, Warsaw, Gates & Gates, Columbia City, for appellee.

KENDALL, Presiding Judge.

Appellee brought this action in four paragraphs in the lower court for damages against appellant for trespass upon appellee's real estate alleging that the appellant committed injury by negligently and wrongfully entering thereupon and causing to be cut and sawed into logs approximately 300 growing trees and prayed for $5,000 damages. The fourth paragraph alleged that appellant's entry was made under a claim of having purchased the growing timber from Truman Yoder who had no right to sell the timber in question.

Appellant answered, admitting ownership in the appellee but denied other allegations. Affirmative paragraph of answer was filed admitting that he cut the timber but that he was acting under a mistake as to the boundaries of the respective owners; that the cutting added $500 of value of the timber; that the appellant never removed any of the logs and that appellee receive the full benefit worth in excess of $3,000. On appellee's motion, the allegation as to the $500 being added in value was stricken from the answer.

Trial was had by jury resulting in a verdict favoring appellee for $2,000, upon which judgment was rendered. The specifications of appellant's motion for new trial are: that the damages assessed were excessive in that they were too large; that the verdict is not sustained by sufficient evidence and is contrary to law; that there were errors of law which were excepted to by the appellant in the admission of oral testimony and an exhibit; error in giving to the jury appellee's tendered instructions numbered five and seven to eleven, inclusive; error in refusing to give the jury appellant's tendered instructions numbered two to six, inclusive, eight, nine and twelve.

Specification 5i alleges that the court erred in admitting into evidence over appellant's objection the will of George W. Pinkerton. This specification does not set forth the objection or substance thereof. Failure to do so presents no question on appeal.

Specification 5ii to 5vi (5v waived) related to alleged errors in permitting certain witnesses to answer questions. In each specification the appellant fails to show what objections were timely made upon which error is predicated. The rule is well settled that in a motion for new trial, in order to present alleged error in the admission of evidence, there must be set forth the question or substance thereof, the objection or substance thereof and the court's ruling, and, upon failure to do so, such alleged error is not presented on appeal. Rogers Cartage Co. v. Peglow, 1952, 122 Ind.App. 481, 106 N.E.2d 235; Tompkins v. Smith, 1952, 122 Ind.App. 502, 106 N.E.2d 487; Quigley v. Ackerman, 1952, 123 Ind.App. 600, 106 N.E.2d 100, 110 N.E.2d 753; May v. State, 1953, 232 Ind. 523, 112 N.E.2d 439; Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, § 1812, Comment 8. The reason for this rule is sound in that the trial court is entitled to have such matters called to his attention so that the court may have an opportunity to correct its ruling before appeal is taken challenging the same. Durham v. City of Indianapolis, 1952, 123 Ind.App. 74, 108 N.E.2d 205; Blanton v. State, 1953, Ind., 115 N.E.2d 122.

Specification 5vii relates to alleged error of the court in overruling appellant's motion 'that the answers of the witness Bert Irvine, with relation to the values * * *', which motion was made by the defendant upon cross examination. Again no question is presented for the reasons previously assigned.

Specification 5viii relate to alleged error in refusing to permit the defendant to answer certain questions. The purported questions are recited in the motion for new trial but no objection shown. Neither is there any offer to prove made. This court has no way of knowing the matter which was presented to the trial court for him to rule upon. Likewise this specification presents no question.

The same rule is applicable to specification 5ix in which appellant claims the court erred in compelling the defendant to answer on cross examination two questions. No reasons or objections are recited in this particular specification. Likewise no question is presented.

Specification 5x wherein appellant contends the court erred by giving appellee's tendered instructions five and seven to eleven, inclusive, are without merit for failure of appellant to show what objection was made at the time of trial.

The assignment of errors are: (1) That the court erred in overruling appellant's motion to strike portions of appellee's complaint (2 and 3 are waived by appellant); (4) That the court erred in sustaining appellant's motion to strike parts of appellee's answer; (5) That the court erred in overruling appellant's motion for new trial; (6) Error of court in overruling appellant's motion with respect to entry of judgment and for rehearing on new trial motion.

The first four specifications of appellant's motion for new trial question the sufficiency of the evidence to sustain the jury's verdict and the amount of assessed damages.

The facts are generally undisputed which disclose that the appellee, his father and grandfather had owned the land in question for a number of years; that appellee and his brother owned the only two tracts of virgin timber in this area. The appellee's farm consisted of two, forty-acre tracts with a road running between the same, the buildings being on the north forty acres. The woods tract of about 15 acres was located in the northeast corner and had never been cut over. Along the north line of appellee's land is an open ditch separating it from the land owned by Truman Yoder, the man who appellant made a purchase of timber from on which there was smaller growing timber of approximately 3 acres.

The appellant was a timber buyer of 13 years' experience. In November, 1948, appellant was approached by Truman Yoder to buy his timber, which was later done for $800. About a month later, appellee observed some down timber on his farm, went back to the woods and found two men cutting down trees on his land. Upon appellee's request, the cutting stopped immediately. Later, appellee learned that the men were cutting timber for appellant who later advised appellee that he had purportedly purchased timber from Mr. Yoder for $800. The felled timber was left on the farm. The men had begun cutting in the center of the woods, cutting toward the outside of the tract diagonally; that two-thirds of the tract, or 10 to 11 acres had been cut over when discovered by appellee. After the cutting, both parties had the cut logs scaled to determine the quantity of timber cut. It was determined that 38,416 feet of elm, 14,069 feet of oak, 11,043 feet of maple, 91 feet of walnut and 635 feet of ash had been cut (log feet). Appellee sold $1,433 worth of timber and kept the remainder which was established to be worth $1,567. The evidence as to the value of appellee's land in question before the cutting was placed generally at $20,000, or $250 per acre; that after the cutting, the value was fixed at from $16,000 to $17,000, or a difference of from $3,000 to $4,000. The appellant offered no testimony as to the value of land after the cutting of timber. In determining the sufficiency of the evidence to sustain the verdict, it is necessary to determine the method of measuring the alleged damages. Generally where damages are sought for trespass on land, the action may be in two forms, (a) trespass quare clausum fregit, or (b) trespass de bonis asportatis, other than an action for the recovery thereof.

A landowner has an election as to what form of action to bring for recovery of damages alleged to have been sustained under such facts. Where timber is destroyed by the wrongful act of another, the owner may bring an action either for the value of the destroyed timber or for the injury to the real estate. If the action is of the former, the...