Hook v. Dorsam, 19930

• Decision Date: 27 February 1964
• Docket Number: No. 2,No. 19930,19930,2
• Parties: G. R. HOOK, Edward R. Crooks, Appellants, v. Leona DORSAM, Administratrix of the Estate of Clipsy Frank Dorsam, Deceased, Appellee
• Court: Indiana Appellate Court

Page 416

196 N.E.2d 416

135 Ind.App. 626

G. R. HOOK, Edward R. Crooks, Appellants, v. Leona DORSAM, Administratrix of the Estate of Clipsy Frank

Dorsam, Deceased, Appellee.

No. 19930.

Appellate Court of Indiana, Division No. 2.

Feb. 27, 1964.

Hastings & Allen, Arthur W. Allen, J. Lloyd Fitzpatrick, Robert O. Chambers, Philip D. Waller, Washington, Weyerbacher, Lacey & Rideout, Kenneth W. Weyerbacher, Booneville, for appellants.

Mellen & Mellen, Bedford, Leslie H. Hendrickson, Booneville, for appellee.

MOTE, Judge.

This is an appeal from a judgment entered by the Warrick Circuit Court on a jury verdict of eighteen thousand ($18,000.00) dollars which was returned in an action brought by appellee as administratrix of the estate of Clipsy Frank Dorsam, deceased, for the wrongful death of the deceased and for property damage to a truck owned by said Dorsam.

The litigation was commenced in the lower court when the appellee filed a complaint which alleged, in part, that appellant Crooks, agent of appellant Hook, carelessly and negligently drove a truck across the center line of U. S. Highway 41 into the path of the decedent's oncoming vehicle and into and against the left side of decedent's vehicle, thereby causing the collision and the resulting death and property damage. Trial was had and the said verdict and judgment resulted. Appellants filed a motion for new trial, which was overruled by the trial court.

Appellants' only assignment of error in this Court, which is argued, is that the trial court erred in overruling the said motion for new trial. They contend, under the said motion, that the verdict of the jury is not sustained by sufficient evidence and that said verdict is contrary to law.

The evidence most favorable to appellee discloses that the deceased, Dorsam, was, on July 14, 1953, driving his truck in a northerly direction over U. S. Highway 41. Appellant Crooks was driving a tractortrailer rig in a southerly direction over the said U. S. Highway 41. The two vehicles collided and the death and property damage complained of resulted.

The evidence also discloses that, prior to the collision, the truck driven by appellant Crooks had veered over from the right lane of traffic into the left lane, while another vehicle was attempting to pass.

Splintered boards, mud, and other debris were lying on the highway after the collision. The evidence tended to show that the said boards, mud, etc. were lying on the center line and to the east side of center line. The east lane, of course, is the right-hand lane for northbound traffic. There was further evidence that the appellant's truck had mud on it.

This evidence, and permissible inferences to be drawn therefrom, is sufficient to support the jury verdict, since the jury could have concluded that appellant's truck crossed the center line into the east lane and that the collision occurred there.

Appellants contend, however, that the jury is precluded from drawing an inference from circumstantial evidence, since appellant Crooks, the only surviving eye witness, testified that his truck did not cross the center line, thereby causing the accident. We cannot agree with this contention in this particular case. See Whitaker, Admr. v. Borntrager (1954), 233 Ind. 678, 122 N.E.2d 734, wherein it is stated:

'* * * When all the known physical conditions and circumstances surrounding an accident are proved as in this case and there are legitimate inferences that naturally flow therefrom that by a fair preponderance might convince reasonable persons that the collision was caused by defendant's negligence as alleged while other equally reasonable persons might not be so convinced thereby, a situation exists for solution by the jury only under proper instructions from the court. * * *'

The jury could have disbelieved Crooks' testimony. We cannot say that the jury could not so do. Two witnesses testified that Crooks said, immediately after the accident, he did not know how the accident occurred. This testimony was not rebutted or denied. Therefore, when Crooks gave a detailed account of the collision at the trial, many years later, the jury was presented with circumstances which would warrant it in disbelieving his testimony.

Appellants further assert that error occurred when the trial court refused to exclude from evidence certain questions and answers which tended to prove that the left front fender of appellant's truck was damaged in the collision. Appellants contend that the questions were leading and the answers were opinions or conclusions of the witness. It appears, however, that at least two other witnesses testified that the left front fender of said truck was damaged. We think, therefore, that the evidence in question was merely cumulative and the error, if any was harmless. The admission of improper evidence is harmless when the fact thereby sought to be shown is established by other evidence which is competent. Bercot v. Velkoff (1941), 111 Ind.App. 323, 41 N.E.2d 686; Roesner v. American Car & Foundry Co. (1937), 104 Ind.App. 55, 5 N.E.2d 688; see also Ft. Wayne Transit, Inc. v. Shomo (1957), 127 Ind.App. 542, 143 N.E.2d 431; Chrysler Corp. v. Bolser (1936), 102 Ind.App. 310, 200 N.E. 417.

Appellants also assert error by the trial court when it overruled a motion to strike out parts of depositions which were filed, prior to trial, of Floyd F. Carpenter and Robert A. Collins. Appellee contends that the question is not properly...