Hough v. Miller

• Decision Date: 20 October 1942
• Docket Number: 16755.
• Parties: HOUGH v. MILLER et al.
• Court: Indiana Appellate Court

44 N.E.2d 228

112 Ind.App. 138

HOUGH v. MILLER et al.

No. 16755.

Appellate Court of Indiana, in Banc.

October 20, 1942

Robert L. Smith, of Portland, and A. Walter Hamilton, of Bluffton for appellant.

Fesler Elam, Young & Fauvre and Slaymaker, Merrell & Locke all of Indianapolis (Eichhorn, Gordon & Edris, and Sturgis Stine & Sturgis, all of Bluffton, of counsel), for appellees.

Howard S. Young and Howard S. Young, Jr., both of Indianapolis, for Glen Miller.

Theodore L. Locke and Wm. S. Gordon, both of Indianapolis, for Charles E. Shugert and Goodyear Tire & Rubber Co.

CURTIS Judge.

This was an action in the trial court by the appellant, the mother of a fifteen-year old unemancipated son, against the appellees alleging the wrongful death of said son by reason of the concurring negligence and the wilful and wanton misconduct of the appellees in an automobile accident. The deceased was riding as a guest in the appellee Miller's car which collided with the automobile truck belonging to the appellee, Goodyear Tire and Rubber Company, then being driven by the appellee Shugert. It was alleged that the father of the son was dead. The complaint was in one paragraph to which an answer of general denial was filed by each of the appellees. The cause was submitted to a jury for trial resulting in a general verdict for the appellees, upon which a judgment was entered in accordance therewith. In due time a motion for new trial was filed by the appellant and overruled, and this action of the trial court is the only error assigned on appeal. The only causes or grounds of the motion for new trial that are presented on appeal are that the court erred in giving each of the instructions numbered six, seven, eleven and thirteen on the court's own motion, and in the refusal to give each of instructions one, two and three tendered by the appellant.

At the outset it is to be noted that no evidence is brought into the record and that the questions are raised solely upon the said instructions. The settled rule of law in this State is that where the evidence is not in the record upon appeal, a judgment will not be reversed on account of instructions given by the trial court if upon any supposable state of facts relevant to the issues the instructions might have been correct. See John Hancock Mutual Life Ins. Co. v. Keith, 105 Ind.App. 465, 15 N.E. 2d 738, 739, from which we quote as follows:

"Where the evidence is not in the record, instructions given by the court cannot be regarded as erroneous if they can be considered correct upon any state of facts admissible under the issues, and we must presume that the instructions asked were refused because they were not applicable to the case made by the evidence."

See, also, De Hart v. Board of Commissioners of Johnson County, 143 Ind. 363, 41 N.E. 825, and cases therein cited. Insofar as the case of Kentucky and Oliver Avenue Realty Company v. City of Indianapolis, 98 Ind.App. 373, 187 N.E. 270, discusses the situation where the record does not contain the evidence in any form, that case is so nearly in point with the instant case that we quote from it as follows:

"The record before us does not contain the evidence in any form. In Ferguson v. Bilsland, et al. [1925], 196 Ind. 291, 146 N.E. 326, we find the following rules laid down: 'Where the evidence is not recited in appellant's brief, it will be presumed that the instructions given correctly stated the law pertinent to the evidence and that those refused were not applicable to the evidence.' Also, 'Where the evidence is not in the record, instructions given will not be held erroneous if correct under any evidence admissible under the issues in the case.' In Herring et al. v. Watson [1914], 182 Ind. 374, 105 N.E. 900, it was in effect held that, where the evidence is not in the record, the judgment of the trial court will not be reversed for error pointed out in instructions given, unless they are so radically erroneous as to be incorrect in view of any facts that might have been proven under the issues. To the same effect see Vandalia Coal Company v. Yemm, [1910], 175 Ind. 524, 92 N.E. 49, 94 N.E. 881; Hopkins et al. v. Dreyer [1923], 81 Ind.App. 433, 142 N.E. 17. Under the circumstances of the instant case, we are required to indulge every reasonable presumption in favor of the correctness of the instructions. Vandalia Coal Company v. Yemm, supra; Ferris v. State [1900], 156 Ind. 224, 59 N.E. 475; Reinhold v. State [1891], 130 Ind. 467, 30 N.E. 306."

The complaint in the instant case and the instructions including those given and those refused, of which complaint is made are somewhat lengthy, and we do not feel called upon to extend this opinion unduly by setting them out. It is sufficient to say that when the issues tendered by the complaint and the answers thereto and the instructions given, which are complained of, and those which are refused, of which...