Jackson v. Record
| Decision Date | 01 February 1937 |
| Docket Number | 26823. |
| Parties | JACKSON et al. v. RECORD et al. |
| Court | Indiana Supreme Court |
Appeal from Dearborn Circuit Court; Wm. J Ricketts, Judge.
Willard Dean, of Aurora, Slaymaker, Merrell & Locke, of Indianapolis, and Tremain & Turner, of Greensburg, for appellants.
Estal G. Bielby, of Lawrenceburg, for appellees.
This was an action by appellee Floyd Record, administrator of the estate of Rosa Lee Record, deceased, against appellants Harvey D. Jackson and Elza R. Jackson and appellees Carl C Crider and Orien Billingsley, all of whom were defendants below, upon a complaint in one paragraph, for damages in the sum of $10,000, charging the wrongful death of one Rosa Lee Record under the statute, the said death being the result of the said Rosa Lee Record, deceased, having been struck by an automobile operated by the appellant Elza R. Jackson, and said automobile being operated for and on behalf of appellant Harvey D. Jackson.
Appellee's amended complaint was in one paragraph and alleged in substance: That the plaintiff is the duly appointed, qualified, and acting administrator of the estate of Rosa Lee Record, deceased, and brings this action as such administrator; that on the 12th day of March, 1932, the appellant Elza R. Jackson was operating a Packard automobile, on state road 50 at Homestead, Dearborn county, Ind., for and on behalf of appellant Harvey D. Jackson, and in connection with the business of the said Harvey D. Jackson and as his agent, servant, and employee; that the appellee, defendant below, Carl C. Crider, was the owner of a large automobile truck which was at said time and place being operated by the appellee Orien Billingsley, defendant below, as the agent and employee of said Crider and for and on behalf of said Crider; that plaintiff's decedent was walking upon the extreme left side of said highway and was struck by the automobile driven by said Elza R. Jackson while carelessly, recklessly, and negligently attempting to pass the automobile truck driven by said Billingsley; that the drivers of both the automobile and automobile truck were operating the same carelessly, recklessly, and negligently and with an utter disregard for the safety of the said decedent; that the death of said Rosa Lee Record was caused by said striking her as aforesaid and because of the negligence, carelessness, and recklessness of said drivers aforesaid, and demanded judgment in the sum of $10,000.
Each of the defendants filed answer in general denial. The case was tried by a jury, and the following verdict was returned: 'We, the jury, find for the plaintiff Floyd Record, as administrator of the estate of Rosa Lee Record, deceased, as against the defendants Elza R. Jackson and Harvey D. Jackson, and assess his damages at the sum of $7500.00 and we find for the other defendants.'
Upon this verdict, the following judgment was entered by the court: 'It is therefore considered and adjudged by the court, that the plaintiff do have and recover from the said defendants, Harvey D. Jackson and Elza R. Jackson, the sum of $7500.00 together with his costs and charges herein laid out and expended taxed at _____ dollars and _____ cents.'
Appellants filed a motion for a new trial which was overruled, and the overruling of the motion for a new trial is the only error assigned for a reversal of this appeal.
Before discussing the alleged errors presented by appellants' motion for a new trial, we shall determine whether this court has jurisdiction of the cause.
The judgment of the court is not set out in either appellants' or appellees' brief. The verdict of the jury is set out in appellants' brief, as above quoted, followed by the statement, 'That judgment was rendered on the verdict.' Appellee in his brief sets out the verdict but does not set out the judgment The judgment above set out is quoted from page 89 of the record.
Whether or not the judgment as rendered by the trial court above set out is a final judgment, from which an appeal can be taken, and whether the court on appeal has jurisdiction, is not presented or raised by the parties hereto in their briefs, and no motion to dismiss was filed, but, inasmuch as the Appellate Court dismissed the appeal with an opinion (199 N.E. 873), for the reason that the judgment herein was not a final judgment from which an appeal could be taken and dismissed the appeal for want of jurisdiction, we feel called upon to discuss that question in this opinion.
It will be noted that this is an action founded upon an alleged tort. The defendants are sued jointly as joint tort-feasors. The liability of the appellants and their codefendants as joint tort-feasors is several and suit may be maintained against all, or one or any number of them. Smith v. Graves (1915) 59 Ind.App. 55, 108 N.E. 168, 169. In the case just cited the facts are very similar to the facts in the case at bar. There the plaintiff sued appellants Smith, Bowser, and Kocher for malicious prosecution of appellee on a charge of bribing a voter at the election in 1908. The jury returned the following verdict: 'We, the jury, find for the plaintiff Warren W. Graves, against the defendants Mortimer Smith, Levi Bowser, and we assess plaintiff's damages at one thousand dollars.'
The following judgment was entered by the court: 'It is now therefore ordered, adjudged, and decreed by the court that the plaintiff have and recover of and from the defendants Mortimer Smith and Levi Bowser the some of $1,000.00 as damages herein to which judgment of the court said defendants separately and severally excepted.'
The question as to whether or not the above judgment was a final judgment from which an appeal could be taken, for the reason that no specific finding for or against appellant Kocher was made by the jury and no judgment entered for or against him by the court, was discussed by the court. The court very carefully and fully discussed the law governing the very question here under consideration. Many authorities were there cited and discussed. We are of the opinion that the law as there announced is sound and decisive of the question here, and upon the authority of that case and cases there cited we hold that the judgment herein is a final judgment from which an appeal can be taken and that this court has jurisdiction. See Southern Ry. Co. v. Elliott (1907) 170 Ind. 273, 82 N.E. 1051, and cases cited.
The questions presented by appellants' motion for a new trial and discussed in their brief are: (1) The verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law; (3) the damages assessed by the jury are excessive; (4) the giving and refusing of certain instructions to the jury; and (5) in refusing to set aside the submission of the cause, because of misconduct of counsel for the plaintiff in asking a certain question and eliciting the answers thereto.
Under the first assigned reason for a new trial, to wit, that the verdict of the jury is not sustained by sufficient evidence, appellant makes the point that there is a total failure to prove the earning capacity of the decedent, or that she ever earned any specific amount of money at any time, therefore there was no basis for a recovery. The evidence in the case shows that decedent and the plaintiff had been married for almost 21 years. That they had lived together as husband and wife during all that time. That they were the parents of three children, John Kenneth, William, and Nellie. That Nellie was 20 years old, William 17, and John Kenneth 11 years old, and that they had lived in the home all their lives. That the decedent took care of the children, did the washing and ironing for the family, took care of the home, did all the household work; mended the childrens' clothing; looked after them generally; saw that they were made ready for school and church. That she looked after her husband's comfort and welfare. That she was healthy and industrious. That she not only looked after her own household but she worked for other people, done washing and sewing for neighbors to earn money and help support the family. The morning she was killed she was on her way to work for a neighbor. That she was 42 years of age and that she had had no serious sickness, and had a life expectancy of 26 1/2 years.
We think the above facts furnished a sufficient basis to go to the jury and from which they had a right to assess damages. In the case of Cleveland, etc., R. Co. v. Clark (1912) 51 Ind.App. 392, 97 N.E. 822, 832, the following instruction was given to the jury, and approved on appeal: 'In determining this question, you may take into consideration the age of the decedent at the time of her death, the number and ages of her children, her habits of industry and frugality, the condition of her health prior to the accident, her ability to perform labor, the care and attention given and bestowed by her upon her children and husband, and from a consideration of these matters and all other facts within the evidence relating to this subject you will award such sum as will, in your judgment under the evidence, fully compensate the beneficiaries for the pecuniary loss they have sustained by reason of the wrongful death of the said Maggie M. Clark, not to exceed the sum of $10,000.'
A similar instruction was given and approved...
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