Justice v. Tripp, 19018

• Decision Date: 22 May 1959
• Docket Number: No. 1,No. 19018,19018,1
• Citation: 130 Ind.App. 187,158 N.E.2d 809
• Parties: Robert S. JUSTICE, Appellant, v. Helen TRIPP, Appellee
• Court: Indiana Appellate Court

Page 809

158 N.E.2d 809

130 Ind.App. 187

Robert S. JUSTICE, Appellant, v. Helen TRIPP, Appellee.

No. 19018.

Appellate Court of Indiana, Division No. 1.

May 22, 1959.

Brubaker & Justice, Hillis & Hillis, Logansport, for appellant.

Lynn O'Neill, O'Neill & O'Neill, Logansport, for appellee.

AX, Judge.

Appellee obtained a jury verdict against appellant for fifteen hundred dollars on a complaint charging that appellant, an attorney, charged an unreasonable fee for representing the appellee in a claim for personal injuries.

From the record it appears that there was a misunderstanding between the parties as to the matter of the basis upon which appellant was employed--appellant claimed that he was employed on a contingent fee basis, and appellee claimed that appellant was employed on an hourly basis. There was no written contract of employment.

Upon judgment being entered, appellant filed a motion for new trial which was overruled.

Since the opinion of this court is not based upon the merits of the complaint, we deem it of no consequence to set out the complaint in full or any of its allegations. In our opinion, if appellant had properly urged the error of the court below in overruling his demurrer to the complaint, we would have been compelled to reverse the judgment in this case. However, appellant, by his failure to include it in his argument, has waived this error and we can not consider it for the benefit of appellant. Tate v. West, 1950, 120 Ind.App. 519, 94 N.E.2d 371; Gluff v. Rouls, 1950, 228 Ind. 186, 91 N.E.2d 176.

Appellant's sole assignment of error herein was the overruling of his motion for a new trial.

In his motion for a new trial appellant sets forth six separate causes--and then proceeds to waive all of his causes for a new trial by his failure to comply with Rule 2-17 of the Supreme and Appellate Courts.

In his brief, under point One, appellant grouped together four of his causes for a new trial as follows:

1. Damages assessed by the jury are excessive.

2. Verdict of jury is not sustained by sufficient evidence.

3. Verdict of jury is contrary to law.

4. Error occurred in assessment of amount of recovery in that verdict is too large.

After setting forth these causes, appellant failed completely to comply with the aforesaid Rule 2-17(e) in that he failed in 'exhibiting clearly the points of fact and of law being presented, and how they are applicable, citing the authorities and statutes relied upon * * *.' Mere proposition of law is quoted and citations given. The appellant has altogether failed to apply the cases cited to the facts of the instant case and the application thereof.

In his point Two, appellant attempted to set out in his argument the error of law occurring at the trial as to 'refusal to give instructions'. Again appellant has waived this alleged error by his failure to put into the statement of the record all of the instructions given or tendered which have a bearing upon the questions raised, as required by the said Rule 2-17(d). Judge Crumpacker in the case of Underwood v. Ferguson, 1956, 126 Ind.App. 643, 133 N.E.2d 573, 576, made the following well-stated observation of this subject:

'The appellant's brief does not set out the instructions given by the court and we are unable to determine whether they cover the subject matter of those refused without resort to the record. This we decline to do for the purpose of reversal as the burden is on the appellant to present us with a brief showing error and in the absence of such brief we prefer to indulge the presumption that the trial court fully and accurately instructed the jury concerning the law of the case.'

In his final point, Three, appellant set out 'errors of law occurring at the trial under number six of the motion for a new trial--exclusion of evidence.' Under his cause member six, appellant had listed five...