Johnson v. Wilson

• Decision Date: 13 January 1937
• Docket Number: 26815.
• Citation: 5 N.E.2d 533,211 Ind. 51
• Parties: JOHNSON v. WILSON.
• Court: Indiana Supreme Court

5 N.E.2d 533

211 Ind. 51

JOHNSON v. WILSON.

No. 26815.

Supreme Court of Indiana

January 13, 1937

Appeal from Johnson Circuit Court; Chas. B. Staff, Judge.

Jackiel W. Joseph, Linn D. Hay, and Theodore R. Dann, all of Indianapolis, for appellant.

Owen S. Boling, of Indianapolis, Henry E. White, of Franklin, and E. M. Hornaday, of Lebanon, for appellee.

HUGHES Judge.

This is an action by the appellee against the appellant for damages for the death of appellee's intestate alleged to have occurred as a result of the negligent operation of an automobile by the appellant. There was a verdict and judgment for appellee in the sum of $4,000.

The error relied on for reversal is that the court erred in overruling appellant's motion for a new trial. In the motion for a new trial, it is alleged that the court erred in the admission of certain evidence, and in the giving and refusing to give certain instructions. It is also alleged that the verdict is not sustained by sufficient evidence, and that it is contrary to law.

The complaint among other things alleges:

'The plaintiff Bertha Wilson, administratrix of the estate of Harry D. Wilson as such administratrix, complains of the defendant Clarence Johnson and for a cause of action alleges:

'That on the 8th day of March, 1930, about 9 P. M. plaintiff's intestate was driving a Ford roadster east on a public highway known as New Augusta Free Gravel Road or 71st Street that said street or public highway runs east and west from State Highway Number 29, through New Augusta and connects with State Highway Number 52; that said highway is a part of the Dandy Trail that encircles the City of Indianapolis, and traffic was heavy thereon, on said date which fact was well known to the defendant in that it was being used by many vehicles in passing from said State Road No. 29 over to State Road 52, and the traffic had been heavy on said road for many months before.

'That said 71st Street is intersected about one mile west of New Augusta by a road running North and South known as the Zionsville Road; that while Plaintiff's intestate was so driving East on 71st Street the defendant with three boys as companions was carelessly and negligently driving a model A Ford Sedan south on said Zionsville Road at a terrific dangerous and unlawful rate of speed; to-wit: 50 miles per hour; that the defendant saw the roadster as it was being driven by plaintiffs' intestate from the west toward said intersection when it was 100 yards or more from said intersection and continuously until it reached said intersection or could have so seen it by the exercise of reasonable care; that said intestate drove to the intersection of said Zionsville Road and said 71st Street and had his roadster at or to the east of the center of said intersection and while he was traveling east at that point the defendant carelessly, and negligently and with great force and violence drove said Ford Sedan into and against the north side of the roadster so being driven by the plaintiff's intestate and knocked or shoved said roadster and plaintiff through fence and many feet into a field to the southeast of said intersection; that by reason of the negligence of the defendant as aforesaid his sedan turned over a number of times and rested bottom side up with its rear end on the rear end of the roadster, and both machines caught fire.

'That by reasons of the negligence of said defendant, as aforesaid and without any fault or negligence of plaintiff's intestate, plaintiff's said intestate was crushed and burned to such an extent that he died from said injuries within a few minutes after being so crushed and burned; that the defendants negligence as aforesaid was the proximate cause of plaintiff's death.'

It is contended by appellee that none of the instructions are properly in the record, and therefore no question is presented as to them. It is the contention of appellant in his reply brief that the instructions are properly in the record under section 2-2010, Burns' 1933; section 586 Burns' 1926, section 343, Baldwin's Ind.St.1934. The court of its own motion gave 24 instructions. The plaintiff tendered 6 instructions, and the defendant tendered 7. The foregoing section requires that all instructions requested shall be signed by the party or his counsel. It also requires that 'the court shall indicate, before instructing the jury, by a memorandum in writing, at the close of the instructions so requested, the numbers of those given and of those refused, and such memorandum shall be signed by the judge.' The record fails to show that the requested instructions were signed by the respective parties or their counsel. Neither does it show any memorandum in writing, at the close of the instructions so requested, signed by the judge, the numbers of those given and those refused. It is clear that the appellant has not followed the provisions of said section 2-2010, section 343, supra, in properly bringing his instructions in the record.

In the recent case of Pennsylvania R. R. Co. v. Hemmer, Administratrix, 206 Ind. 311, 186 N.E. 285, 287, 189 N.E. 137, we find a state of facts similar to those in the instant case. In passing upon the question as to whether the instructions were in the record, the court said: 'An examination of the record shows a complete absence of a written memorandum at the close of appellee's requested instructions indicating the numbers of the instructions to be given or to be refused. * * * An appellant may bring up instructions by a special bill of exceptions or as a part of the record which 'may be included in the transcript on appeal.' If he chooses to bring them up as a part of the record, they must be made a part of the record; and this can be done only by substantial compliance with the provisions of the statute.'

It was held that the instructions were not properly in the record.

The case of Morgan Construction Company v. Dulin (1915) 184 Ind. 652, 109 N.E. 960, was cited, in which there was a like state of facts, and the same conclusion reached.

In the case of Schamahorn et al. v. Gehlhausen (1928) 88 Ind.App. 93, 95, 163 N.E. 289, 290, it is said: 'Appellants undertook to present error as to instructions under the provisions of section 586, Burns' 1926. This section provides that: 'The court shall indicate, before instructing, the jury, by a memorandum in writing, at the close of the instructions so requested, the numbers of those given and refused, and such memorandum shall be signed by the (trial) judge.' These steps were not taken. Nothing is therefore presented as to alleged error in giving instructions.' See, also, Halstead v. American Magnestone Corporation (1925) 84 Ind.App. 205, 149 N.E. 608, to the same effect.

Based upon the foregoing authorities and the statute, we are compelled to hold that the instructions are not in the record, and we cannot consider any questions based upon alleged errors in giving or refusing to give instructions.

The fourth reason assigned for a new trial is that the court erred in admitting in evidence over the objection of the defendant the testimony of the witnesses, W. J. Pray and Bertha Pray, that they heard an automobile driving at an excessive rate of speed past their house on the evening of the accident alleged in plaintiff's complaint when such automobile was not identified or shown to have been the automobile driven by the defendant. It appears from the evidence that the Prays lived on the Zionsville pike north of Seventy-First street 20 or 25 rods. The witness Bertha Pray was asked what first attracted her attention to the accident at the intersection and she answered 'the roar of the car' that came from the north. No objection was made to the question. Later in the examination the following questions were asked and answers given:

'Q. I believe you said you didn't even see the car? A. No, I didn't see it.

'Q. You just heard it? A. I just heard it.

'Q. Can you describe that noise to the jury? A. It just sounded to me like a car running wide open; that was the way it sounded to me.'

There was no objection made to the last question, but a motion to strike out the answer as not being responsive to the question was made by appellant. The motion was overruled and properly so. The answer was responsive to the question asked. The witness was asked if she had some notion about the speed, and she replied, 'No, I couldn't say as to that.' She at no time, as shown by the evidence, stated that she heard an automobile driving at an excessive rate of speed.

The witness W. G. Pray testified that a...