Hoeppner v. Saltzgaber
| Decision Date | 11 March 1936 |
| Docket Number | 14,831 |
| Citation | 200 N.E. 458,102 Ind.App. 458 |
| Parties | HOEPPNER ET AL. v. SALTZGABER ET AL |
| Court | Indiana Appellate Court |
Rehearing denied July 2, 1936.
Transfer denied September 30, 1936.
1. APPEAL---Parties---Necessary Parties---Effect of Dismissal.---Where cause was dismissed as to one defendant at the close of plaintiff's evidence in chief, it was neither necessary nor proper to name such party on appeal. p 462.
2. APPEAL---Briefs---Recital of Evidence---Omissions---Effect of Inclusion in Appellee's Briefs.---Failure of appellant to set out a condensed recital of parts of the evidence is cured when the omissions are supplied in appellee's briefs. p 462.
3. APPEAL---Review---Sufficiency of Evidence---Uncertainty Because of Reference to Maps or Photographs.---Where the entire evidence as to place and manner of accident was by reference to maps and photographs, as "at this point here (indicating)," such evidence, while being clear to the jury, was meaningless to the Appellate Court, which must therefore presume its sufficiency to support the verdict, p. 463.
4. AUTOMOBILES---Actions for Personal Injuries---Instructions---Where Several Acts of Reckless Conduct Charged---Omission of Proximate Cause.---In guest's action for personal injuries in an automobile collision, instruction that proof of any one of several acts of reckless disregard of her safety charged in the complaint would be sufficient, held not erroneous for failure to mention proximate cause. p. 469.
5. TRIAL---Instructions---Sufficiency Generally---All Law Not Required in One Instruction.---All the law of a case need not be stated in any one instruction, particularly where the form of the instruction is not mandatory and does not purport to set forth all the elements upon which a recovery can be based. p. 469.
6. AUTOMOBILES---Actions for Personal Injuries---Instructions---Contributing Acts of Two Defendants---Permitting Recovery Against One Only.---In guest's action against host and driver of another car for injuries received in a collision, where complaint charged several acts of reckless disregard of plaintiff's rights by the host and several other acts of negligence by the driver of the other car, an instruction permitting recovery upon proof of any one of the acts charged, held not erroneous for failure to require proof of both contributing causes. p. 469.
7. APPEAL---Review---Parties Entitled to Allege Error---Error Affecting Only Co-party---Instructions.---In action by an automobile guest against her host and the driver of another car for injuries sustained in a collision, the host could not complain of an instruction relative to driving with one headlight based upon evidence of negligence of the other party. p. 470.
8. APPEAL---Reservation of Grounds in Lower Court---Objections to Instructions---Duty to Request Proper Instruction.---Appellant in a personal injury case could not complain of an instruction because of omission of the element of proximate cause where he failed to request a proper instruction on that subject, as was his duty if he believed that subject incompletely covered by the instructions given. p. 470.
9. APPEAL---Review---Instructions---Considered as Whole.---In determining the sufficiency of any instruction, it must be considered with other instructions given. p. 470.
10. APPEAL---Review---Error Favorable to Appellant---Instructitons.---In automobile guest's action against her host for personal injuries, defendant could not complain of an instruction on contributory negligence, since under the automobile guest statute he was not entitled to such defense and the instruction was therefore more favorable to him than that to which he was entitled. p. 471.
11. AUTOMOBILES---Actions for Injuries---By Guest Passenger---Contributory Negligence No Defense.---Contributory negligence is no defense to action against automobile owner or operator for injuries to a guest therein. (Acts 1929, ch. 201, p. 679.) p. 471.
12. AUTOMOBILES---Actions for Injuries---By Guest Passenger---Reckless Disregard of Others.---Whether the driver of an automobile was guilty of reckless disregard of the rights of others, in actions for injuries to a guest, should generally be submitted to the jury where the evidence is conflicting, but with careful instructions that something more than mere negligence is required. p. 471.
13. APPEAL---Review---Verdict---Amount of Recovery---Excessive Verdicts.---Appellate Court will not disturb a verdict on the ground it is excessive unless it is so excessive as to induce belief that the jury has acted from partiality, prejudice, corruption, or other improper motive. p. 472.
14. APPEAL---Reservation of Grounds in Lower Court---Objections to Evidence---Demonstrations Before Jury.---In personal injury action, where defendant's medical witness testified that plaintiff's leg could be flexed backwards farther than shown by the evidence, and, upon suggestion of plaintiff's counsel and without objection by defendants, the witness undertook to flex the leg before the jury, causing plaintiff to scream and faint, on appeal defendant could not claim prejudice because of the attempted demonstration. p. 472.
15. DAMAGES---Excessive Damages---Permanent Injuries---To Leg Connected With Facial Scar.---$10,000 held not excessive as matter of law for permanent leg injury and permanent scar upon the nose, connected with great pain and suffering during treatment and convalescence. p. 472.
From Allen Superior Court; Charles J. Ryan, Judge.
Action by Catherine Saltzgaber against Dorothy Hoeppner and others for personal injuries. From a judgment for plaintiff, the named defendant and another appealed.
Affirmed.
Eggeman, Reed & Cleland and Snouffer & Murphy, for appellants.
Samuel D. Jackson, C. Byron Hayes and Otto E. Grant, for appellees.
This was an action for damages for personal injuries brought by the appellee, Catherine Saltzgaber, against the appellants Dorothy Hoeppner and Clarence W. Hoeppner and also against Harold Lallow and Robert E. Lallow. The complaint was in one paragraph and was answered by a general denial. As a part of instruction number one the court correctly informed the jury that "The complaint has been dismissed as to the defendant, Robert E. Lallow, and all consideration as to him is withdrawn from you." The record discloses the said dismissal was by the appellee Saltzgaber at the close of her case in chief.
The cause was submitted to a jury for trial, resulting in a verdict as follows: "We, the jury in the above entitled cause, find for the plaintiff against all of the defendants and assess plaintiff's damages at $ 10,000.00." The judgment was in accordance with the verdict. The The appellants seasonably filed their separate and several motion for a new trial which was overruled and this appeal prayed and perfected, the sole error assigned for a reversal being the ruling on said motion. The defendant Harold Lallow filed a motion for a new trial which was also overruled but he has not appealed and was made a party appellee in this court. The appellants' motion for a new trial contains 31 specifications or causes which may be summarized as follows: Numbers 1, 2, and 3 allege that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. Number 4 asserts that the damages assessed by the jury are excessive. Causes number 5 to 15 inclusive each relate to a separate one in their order of the 11 instructions tendered by the appellee Saltzgaber and given by the court. Causes numbered 16 to 29 inclusive each relate to a separate one in the order named of instructions 3, 4, 5, 6, 7, 8, 9, 10, 17, 19, 20, 21, 22, and 26 of the instructions tendered by the appellee Harold Lallow and given by the court. Cause number 30 relates to the refusal of the court to give instruction number 1 tendered by the appellant, and cause number 31 relates in like manner to the refusal to give appellant's instruction number 2. In the appellants' brief under the heading of Propositions, Points, and Authorities they present for review only the first four causes of the motion for a new trial and the alleged error as to the giving of each of instructions numbered 5, 6, and 9 tendered by the appellee Saltzgaber and given by the court, and the alleged error as to the giving of each of instructions numbered 8 and 10 tendered by the appellee Lallow and given by the court, and the alleged error in not giving each of instructions numbered 1 and 2 tendered by the appellants and refused by the court. It is needless to say that the alleged error as to other causes or grounds of the motion are thus waived.
The appellee Saltzgaber was a guest riding in an automobile operated by the appellant Dorothy Hoeppner who was alleged to be operating said automobile at the time as the agent of her husband and co-appellant Clarence W. Hoeppner. The Hoeppner automobile collided with one operated by the appellee Harold Lallow, and the injuries suffered by the appellee Saltzgaber grew out of said collision. The appellee Saltzgaber, in construing her complaint, says: The complaint as to the appellants was evidently drawn with the view of bringing it within the provisions of what is commonly known as the Indiana Automobile Guest Statute, being Chapter 201, page 679, of the Acts of 1929 (§§ 47-1021, 47-1022 Burns 1933, §§ 11265, 11266, Baldwin's 1934). The accident in the instant case occurred in the year 1931, which was after the said act became effective. Considering the general scope and tenor of the complaint we...
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