Koeneman v. Aldridge

• Citation: 125 Ind.App. 176,122 N.E.2d 345
• Decision Date: 29 October 1954
• Docket Number: No. 18457,18457
• Parties: Edward D. KOENEMAN, Appellant, v. Quinton D. ALDRIDGE, Appellee.
• Court: Court of Appeals of Indiana

Page 345

122 N.E.2d 345

125 Ind.App. 176

Edward D. KOENEMAN, Appellant, v. Quinton D. ALDRIDGE, Appellee.

No. 18457.

Appellate Court of Indiana, In Banc.

Oct. 29, 1954.

Robert D. Markel, Clifton L. Markel, Evansville, for appellant.

Leslie H. Hendrickson, Boonville, Wilbur Dassel, Evansville, Nat H. Youngblood, (of Youngblood, McCray & Clark), Evansville, for appellee.

KENDALL, Judge.

This was an action for damages for personal injuries instituted by the appellant January 11, 1951. On November 10, 1952, appellee filed a counterclaim for damages for personal injuries sustained in the same collision on State Highway 62, east of Evansville, Indiana. Prior to appellant filing this action, appellee, on March 5, 1951, filed an action against the appellant for damages for personal injuries growing out of the same accident for which appellant filed this action, which action was still pending in another court when appellant filed the present action and continued pending until December 20, 1952. The appellant objected to the court granting appellee permission to file his counterclaim, which objection was overruled, and thereafter filed answer in abatement alleging the pendency of another action between the same parties and growing out of the same accident. The record by which this court is bound shows that appellee filed a reply alleging that said other action had been previously dismissed on that date. Trial was had on the issue of abatement resulting in a finding and judgment against appellant, whereupon appellant filed answer in bar.

Appellant's complaint is based upon the theory that both cars involved were traveling west on State Highway No. 62, approaching a bridge; that the appellant's car was in front of appellee's car; that appellee was guilty of negligence in driving the right front of his car into the left rear part of appellant's car; that appellee drove at an excessive rate of speed, failing to give signals and have his car under control. The theory of appellee's counterclaim was that he was traveling westwardly on said highway, and, while so doing, he pulled over to the left side of the road to pass a convertible automobile which was trailing appellant's car; that after they had reached the convertible, the appellant, without giving any signal or warning, pulled out in front of appellee's car to the left far enough to hook appellee's right front corner with the left rear corner of appellant's car, causing damage complained of.

The appellant was the only witness who testified that he did not cross the center line. Four witnesses contradicted that particular portion of the evidence. Interrogatories were answered by the jury to the effect that appellee's car passed another car on the left just prior to the collision; that the car trailing appellant's car was approximately 50 feet behind; that appellee's car was going 45 to 50 miles-per-hour, and appellant was traveling 35 to 40 miles-per-hour.

Trial by jury resulting in a judgment in favor of appellee on his counterclaim in the sum of $10,000. General motion for new trial alleged errors of court in permitting the filing of the counterclaim of appellant, error in overruling objections of appellant to the filing of counterclaim; that the verdict of the jury is not sustained by sufficient evidence and is contrary to law, excessive damages, error of law in giving appellee's tendered instructions one to thirteen, inclusive, error in refusing to give appellant's tendered instructions seven, eleven, twelve and fourteen, error in refusing to permit a witness for appellant to answer questions regarding conversation she heard in hospital some one-helf hour after the occurrence of the accident.

Appellant's motion for new trial on the answer in abatement alleged error of court in overruling his objection to the filing of appellee's counterclaim on November 10, 1952; that the decision is not sustained by sufficient evidence and is contrary to law.

Assignment of errors are, (1) That the trial court erred in overuling the objection of appellant to the filing of the counterclaim; (2) Error in permitting appellee to file his counterclaim; (3) Error in overruling motion for new trial on the issue in abatement formed by appellant's answer in abatement to appellee's counterclaim; (4) Trial court erred in overruling general motion of appellant for new trial.

The record of the court proceedings on November 10, 1952, is as follows:

'* * * and defendant and counterclaimant, Quinton D. Aldridge, now files his reply to said answer in abatement showing the dismissal of the Cause No. 2905 in the Posey Circuit Court set forth and alleged in said answer in abatement. And now by agreement is submitted to the court for trial and finding and now, pursuant to agreement of the parties, the court finds that said action in the Posey Circuit Court was dismissed on this date but after the filing of said answer in abatement herein * * *.'

The appellant argues that no reply was ever filed, is not in the files, not in the transcript, except in the Order of the court. It is apparent that the appellant has sought to contradict the record of the court by attaching certain affidavits to his motion for new trial. This does not suffice. The court record itself imports absolute verity for the matters which are properly within the intrinsic record. Bayman v. Farmers Mutual Fire Ins. Ass'n, 1937, 213 Ind. 389, 12 N.E.2d 945; Evansville White Swan Laundry v. Goodman 1949, 228 Ind. 253, 91 N.E.2d 180. It is a rule of law that the record may not be contradicted by affidavits in the motion for new trial or otherwise. Satterblom v. Wasson, 1942, 111 Ind.App. 377, 41 N.E.2d 674. If the reply was not to be found among the files for purposes of putting in the transcript, the appellant's relief was with the trial court and not this court. State ex rel. Hall v. McGill, 1895, 12 Ind.App. 665, 40 N.E. 1115; Wall v. Wilson, 1952, 231 Ind. 207, 105 N.E.2d 343. The appellant does not contend that he applied in due time for a writ of certiorari which is the proper procedure to correct alleged defects or to complete an incomplete transcript. Indiana Trial and Appellate Practice, Flanagan, Wiltrout and Hamilton, § 2604. It is therefore apparent that a trial was duly had on the issue raised by appellant's answer in abatement.

The appellant's motion for new trial on the answer in abatement alleges that the decision is not sustained by sufficient evidence and is contrary to law; also newly discovered evidence. We have searched the record and fail to find the bill of exceptions containing the evidence heard by the court on the issues raised. The rule has long been that where there is no bill of exceptions containing the evidence or the bill is not made a part of the record, questions depending upon the evidence cannot be considered. Johnson v. State, Ind.1954, 119 N.E.2d 717; Watson v. Vanosdal, Rec., 1938, 215 Ind. 149, 19 N.E.2d 269; City of Elwood v. Wilson, 1942, 113 Ind.App. 149, 47 N.E.2d 165.

Appellant has therefore waived the alleged error relating to the issues raised by the answer in abatement and reply thereto by failure to incorporate a bill of exceptions containing evidence in the record.

Appellant filed affidavit with new trial motion of newly-discovered evidence being that of the picture of the convertible automobile at or near the scene of accident. Generally, such motions are looked upon with disfavor. To grant a new trial on such grounds of newly-discovered evidence not only must due diligence preceding the trial be shown but the evidence must be of such a character as to raise a reasonable presumption that a different result would have been reached if the newly-sought evidence had been introduced at the trial. There is nothing in the motion before the court upon which we could base a presumption that a different result would have been reached by the jury. The granting of motion for new trial on grounds of newlydiscovered evidence is within the trial court's discretion, the exercise of which will not be disturbed except for abuse of discretion. Bartley v. Chicago & E. I. Ry. Co., 1942, 220 Ind. 354, 41 N.E.2d 805. Since the affidavit is devoid of facts except conclusions showing due diligence and that such evidence is merely cumulative, the trial court did not abuse its discretion.

Notwithstanding, however, appellant's waiver, the trial court did not err in overruling appellant's plea in abatement. The defense of another action pending applies generally and only when the plaintiff in both suits is the same person and not to a case where the plaintiff in one files a counterclaim. Chapman v. Lambert, 1911, 176 Ind. 461, 96 N.E. 459; Smith v. Blatchford, 1850, 2 Ind. 184, 185. It is a general rule that a ruling upon the plea of abatement is within the sound discretion of the trial court. With the facts presented, we cannot say that the trial court erred in overruling appellant's plea in abatement.

Causes three and four of motion for new trial were based upon the insufficiency of the evidence and being contrary to law. No reference was made in appellant's brief to the transcript page or bill of exceptions containing the evidence wherein the evidence is insufficient which is required by Rule 2-17(d) of the Supreme Court. Notwithstanding, we have searched the record as to the testimony of the witnesses as to the location of the cars at the time of the impact, the proximity of appellee's car to the convertible following the appellant, together with the answers to the interrogatories submitted to the jury, and, in our opinion, there was ample evidence to sustain the jury's verdict and that it is not contrary to law.

Each of appellant's tendered instructions, seven, eleven, twelve and fourteen, which were refused by the court, quoted certain sections of traffic laws and then proceeded to instruct the jury that violation of that law by the appellee constituted negligence. In lieu of...