Klenke v. New York, Chicago And St. Louis Railroad Company

• Decision Date: 09 October 1925
• Docket Number: 11,358
• Citation: 149 N.E. 103,83 Ind.App. 478
• Parties: KLENKE, ADMINISTRATRIX, v. NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY
• Court: Indiana Appellate Court

149 N.E. 103

83 Ind.App. 478

KLENKE, ADMINISTRATRIX, v. NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY

No. 11,358

Court of Appeals of Indiana

October 9, 1925

From Allen Superior Court; William N. Ballou, Judge.

Action by Amanda Klenke, as administratrix, against the New York Chicago and St. Louis Railroad Company. From a judgment for plaintiff for an unsatisfactory amount, she appeals.

Affirmed.

White Wright & McKay, for appellant.

Walter Olds, Albert Thomas, W. A. Colston and W. J. Stevenson, for appellee.

OPINION

PER CURIAM.

This was an action by the appellant, as administratrix, for damages alleged to have been sustained by reason of the death of her husband, William Klenke, who was killed in a crossing accident in the city of Fort Wayne, as the result of alleged negligence on the part of certain servants of appellee.

No question is made as to the sufficiency of any of the pleadings and it is not, therefore, necessary that they be herein set out. There was a trial by a jury which resulted in a verdict in favor of the appellant in the sum of $ 400, upon which verdict, judgment was rendered. There was a motion for a new trial which was overruled and this appeal followed. The error assigned is the overruling of said motion, and, under this assignment, the appellant has presented only: (a) The sufficiency of the evidence to sustain the verdict; (b) that the verdict is contrary to law; and (c) alleged misconduct of counsel for appellee. We shall first notice the matter last complained of.

Appellant first insists that counsel for appellee were guilty of misconduct during the examination of the jurors on their voir dire, and this alleged misconduct is stated as one of the grounds for a new trial. But an examination of the transcript fails to disclose any such conduct. In fact, it shows nothing as to what took place during the examination of the jurors as to their competency. Recitals in a motion for a new trial cannot perform the office of a statement required to be incorporated in a bill of exceptions. Clouser v. Ruckman, Admr. (1886), 104 Ind. 588, 4 N.E. 202; Hyatt v. Clements (1878), 65 Ind. 12; Robb v. State (1896), 144 Ind. 569, 43 N.E 642; Croatian Bros. Packing Co. v. Rice (1925), 88 Ind.App. 126, 147 N.E. 288. No question, therefore, is presented by the aforesaid specification, as the appellant has no exception in the record in relation thereto.

It is next urged that a new trial should have been granted because of the alleged misconduct of counsel for appellee, occurring during the trial of said cause, in that counsel persistently propounded improper questions which had relation to matters prejudicial to the appellant. An examination of the record discloses that appellant has no "exception" upon which to base this contention. The record discloses that all objections made by counsel for appellant relating to the said objectional matter, were by the court sustained; that, at the request of counsel for appellant, the court admonished the jury that the question asked was improper, and that they should not allow the same to enter into their deliberations in arriving at their verdict. Counsel having then received at the hands of the court all they then asked, could take...