Ideal-Fitzgerald Baking Co. v. Cheek
| Decision Date | 23 March 1965 |
| Docket Number | No. 1,IDEAL-FITZGERALD,No. 19944,19944,1 |
| Parties | BAKING CO., Inc., and Leo Dreher, Appellants, v. Mabel CHEEK, Appellee |
| Court | Indiana Appellate Court |
Dix, Dix, Patrick & Ratcliffe, by Thomas M. Patrick, Terre Haute, for appellant.
N. George Nasser, Terre Haute, George Taylor, Sullivan, for appellee.
This was a civil action brought by appellee asking damages for personal injury. Trial was by jury which resulted in a verdict for appellee assessing damages at $12,000. Judgment was duly entered on the verdict. Appellants' motion for new trial specifying six grounds was timely filed and overruled. This appeal followed. Appellants assign as error the overruling of their motion for new trial.
In the argument section of their brief appellants group specifications 1, 2, 3, 4 and 6 of the motion for new trial. However, appellants only argue the specifications (3) and (4) that the damages awarded and assessed are excessive, and (6) error in the trial court's overruling of appellants' motion to strike part of appellee's complaint. Therefore, specifications 1 and 2 of the motion for new trial are waived.
It is well established in Indiana that in order to secure a reversal for excessive damages it must appear at first blush that the award was grossly excessive or outrageous, and the amount must be so large as to lead to the conclusion that it must have been the result of prejudice, passion, partiality or corruption, except where damages can be fixed with precision and it is apparent that there was error in the computation. Midwest Oil Company, Inc. v. Storey (1962), 134 Ind.App. 137, 148, 178 N.E.2d 468 (Transfer denied); Farm Bureau Mutual Ins. Co. v. [137 INDAPP 320] Seal, Admr. (1962), 134 Ind.App. 269, 280, 179 N.E.2d 760 (Transfer denied); Indianapolis Transit, Inc. v. Moorman (1963), 134 Ind.App. 572, 578, 189 N.E.2d 111; Leader v. Bowley (1961), 132 Ind.App. 528, 549, 178 N.E.2d 445; Oppenheimer et al. v. Craft (1961), 132 Ind.App. 452, 470, 175 N.E.2d 715; City of Indianapolis etc. v. Walker et al. (1961), 132 Ind.App. 283, 303, 168 N.E.2d 228 (Transfer denied).
The record before us discloses that appellee was examined and treated by many physicians between the date of injury and the trial of this cause. The oral testimony or deposition of these physicians was made available to the jury. Although the evidence on the question of appellee's injuries, their cause and extent is conflicting, there is certainly ample evidence on this matter, in our opinion, to support the award of the jury. From this medical evidence the jury could reasonably have determined, or inferred, that the injuries of which plaintiff-appellee complains were caused by the accident from which this suit arose; that such injuries could be permanent; that treatment would be necessary in the future, and that appellee has and will continue to suffer pain, inconvenience and hardship therefrom. A review of this evidence certainly dispells any conclusion on our part that the award by the jury was the result of prejudice, passion, partiality or corruption.
In specification 6 of appellants' motion for new trial appellants object to the trial court's overruling of their motion to strike parts of plaintiff-appellee's complaint.
The overruling of a motion to strike out parts of [137 INDAPP 321] a complaint is not such error as will work a reversal where it is manifest that the moving party has not bee prejudiced by the ruling. Boruff v. Hudson (1894), 138 Ind. 280, 282, 37 N.E. 786; Lindley v. Sink (1940), 218 Ind. 1, 6, 30 N.E.2d 456, 2 A.L.R.2d 772.
Not only have appellants failed to convince us that the trial court's ruling on their motion to strike part of appellee's complaint was prejudicial to them, but they admit, in their brief, that evidence of the facts contained in that part of plaintiff-appellee's complaint which they desired stricken was introduced into the trial of this cause without objection from them.
We find no reversible error in the trial court's ruling on appellants' motion to strike out parts of appellee's complaint.
Lastly, appellants argue their fifth specification of their motion for new trial in which they claim the trial court erred in giving plaintiff-appellee's Tendered Instructions Nos. 12 and 16.
Plaintiff's (appellee) Tendered Instruction No. 16, given by the court, is as follows:
'I instruct you that a driver of a vehicle who in the exercise of reasonable care should have seen, had he looked, a pedestrian in time to avoid a collision with him, and fails so to do, may be liable for resulting injuries regardless of what part of the street in which the pedestrian happened to be.'
Appellants' objection to this instruction and their contention here is that the instruction permits the jury to impose liability upon appellants without regard to any finding of contributory negligence.
Appellants have pointed out in their brief that the question of contributory negligence and appellee's duty [137 INDAPP 322] of care was well covered by other instructions given by the trial court. The instruction in question is not mandatory and must be considered with the other instructions as a whole. Mortimer v. Daub (1912), 52 Ind.App. 30, 37, 98 N.E. 845.
When so considered, the instruction is a proper statement of the law and no error was committed by the trial court in giving it.
'It has been determined by the court numerous times that the giving or refusing to give an instruction not mandatory in form is not prejudicial, where the given instructions as a whole state the law fairly and properly instructs the jury.' Public Service Co. of Ind. v. Dalbey (1949), 119 Ind.App. 405, 410, 85 N.E.2d 368, 370.
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Kavanagh v. Butorac
...§ 366, p. 473; New York Cent. R.R. Co. v. Johnson, Admx., etc. (1955), 234 Ind. 457, 466, 127 N.E.2d 603; Ideal-Fitzgerald Baking Co. v. Cheek (1965), Ind.App., 205 N.E.2d 332, 333. Appellant also argues that the excessive amount of the verdict is exhibited by the fact that the judgment was......