Kenwood Tire Co. v. Speckman

• Decision Date: 01 May 1931
• Docket Number: 13,910
• Citation: 176 N.E. 29,92 Ind.App. 419
• Parties: KENWOOD TIRE COMPANY v. SPECKMAN
• Court: Indiana Appellate Court

176 N.E. 29

92 Ind.App. 419

KENWOOD TIRE COMPANY v. SPECKMAN

No. 13,910

Court of Appeals of Indiana

May 1, 1931

From Hendricks Circuit Court; Zimri E. Dougan, Judge.

Action by Elfrieda Speckman against the Kenwood Tire Company. From a judgment for plaintiff, the defendant appealed.

Affirmed.

Otis E Gulley, Fae W. Patrick, Fenton, Steers, Beasley & Klee and James C. Jay, for appellant.

Roemler Carter & Rust and Blessing & Stevenson, for appellee.

OPINION

BRIDWELL, J.

This action was brought by appellee against appellants for damages on account of injuries sustained as a result of appellee having been struck by a motor truck driven by a servant of appellant while she was standing in a "safety zone" in the city of Indianapolis awaiting the arrival of a street car for the purpose of becoming a passenger thereon.

The cause was put at issue by the filing of an answer of general denial to the complaint; there was a trial by jury resulting in a verdict for $ 7,000 in favor of appellee. Motion for new trial was filed and overruled. Judgment on verdict, from which judgment this appeal is taken. Error relied upon for reversal is the overruling of appellant's motion for a new trial.

The motion for a new trial contains 94 alleged reasons why same should be granted, and under its "Points and Authorities," appellant presents reasons 8, 12, 13, 43 68 and 73 as to the admission of evidence over objections made; reason 14 on alleged error in overruling motion to strike out the answer to a question propounded by appellee to one of her witnesses; reason 91 that the damages assessed by the jury are excessive; reason 92 in giving to the jury by the court of its own motion instruction No. 14.

Appellee contends that this court cannot consider any of the reasons advanced for a new trial relative to the admission of evidence because of the fact that in said motion no one of said reasons states what answer was given to the question asked. Upon examination of the motion for a new trial, we find that in each of said reasons, except the eighth, it is alleged only that: "The court erred in overruling the defendant's objection to the following question propounded to (here the name of the witness called by plaintiff on direct examination is given), and in permitting said question to be answered, to wit," and here follows the question asked. Reason 8 differs from the other reasons in that it does not state that the question asked was permitted to be answered.

As early as 1872, the Supreme Court of this state, in the case of Alley v. Gavin (1872), 40 Ind. 446, said: "It has been often decided by this court that the reasons for a new trial must specifically point out what evidence was improperly admitted or rejected, when the improper admission or rejection of evidence is the error of which complaint is made."

In Indianapolis, etc., R. Co. v. Ragan (1909), 171 Ind. 569, 86 N.E. 966, the court says: "It has repeatedly been affirmed and held by this court that in the reasons assigned for a new trial, because of the improper admission or rejection of evidence, the motion must point out with reasonable certainty what evidence was improperly admitted or excluded, or, in other words, the motion should name the witness and disclose what particular evidence was admitted or rejected."

In Greer v. State (1929), 201 Ind. 386, 168 N.E. 581, in speaking of alleged error in the admission of testimony, the court expresses itself as follows: "The appellant did not set out in his motion for a new trial, nor has he set out in his brief, the answers given to the questions of which he complains. These answers, or at least a statement of their substance, and not merely the questions themselves, must be presented, together with his grounds of objection, in order for a determination to be made by this court of the existence of harmful error, and the court will not search the record for the evidence adduced by the questions complained of."

The rule as announced in the cases heretofore cited has been consistently followed by the Supreme Court of this state and by this court, and, while it has been held that it is not necessary to set out in detail the answer given, yet all the cases are to the effect that it is necessary to point out with reasonable certainty the evidence concerning the admission of which complaint is made. Coryell v. Stone, Exr. (1878), 62 Ind. 307; Ball v. Balfe (1872), 41 Ind. 221; Grant v. Westfall (1877), 57 Ind. 121; McClain v. Jessup (1881), 76 Ind. 120; Reese v. Caffee (1892), 133 Ind. 14, 32 N.E. 720; Ohio, etc., R. Co. v. Stein (1892), 133 Ind. 243, 31 N.E. 180, 32 N.E. 831, 19 L. R. A. 733; Crowder v. Reed (1881), 80 Ind. 1; Dunn v. State (1904), 162 Ind. 174, 70 N.E. 521; Dodge v. Morrow (1895), 14 Ind.App. 534, 41 N.E. 967, 43 N.E. 153; Felt v. East Chicago, etc., Steel Co. (1901), 27 Ind.App. 494, 61 N.E. 744.

The principal reason for the rule is to give to the trial court a further opportunity to consider and correct any error it has made while the case is still under its control. It would therefore follow that the brief cannot cure any defect existing in the motion for a new trial, and enable this court to pass upon claimed errors not properly presented to the court below. State, ex rel., v. Swarts (1857), 9 Ind. 221; Dunn v. State, supra. No available error is presented on the...