MacKey v. Niemeyer

• Decision Date: 10 November 1942
• Docket Number: No. 16888.,16888.
• Citation: MacKey v. Niemeyer, 113 Ind.App. 10, 44 N.E.2d 520 (Ind. App. 1942)
• Parties: MACKEY v. NIEMEYER.
• Court: Indiana Appellate Court

113 Ind.App. 10

44 N.E.2d 520

MACKEY

v.NIEMEYER.

No. 16888.

Appellate Court of Indiana, in Banc.

November 10, 1942.

Appeal from Circuit Court, Parke County; Howard L. Hancock, Judge.

Action by Henry Mackey against Juanita Moore Niemeyer for damages arising out of automobile collision, wherein the defendant filed a counterclaim for personal injuries received in the accident.From a judgment for defendant on her counterclaim, the plaintiff appeals.

Affirmed.Beasley, O'Brien, Lewis & Beasley, of Terre Haute, McFaddin & McFaddin, of Rockville, Cooper, Royse, Gambill & Crawford, of Terre Haute, and Fenton, Steers, Beasley & Klee, of Indianapolis, for appellant.

Aikman, Miller & Causey, of Terre Haute, James Hanner and Warren Buchanan, both of Rockville, Harvey Fisher, of Brazil, and Ernest M. Wright, of Terre Haute, for appellee.

DE VOSS, Judge.

This is an appeal from a judgment of the Parke Circuit Court rendered for appellee, Juanita Moore Niemeyer, defendant in the trial court, against Henry Mackey, plaintiff(appellant), on her counterclaim for personal injuries received in an automobile accident.The cause was submitted to a jury for trial and the jury found for appellee on her counterclaim.A motion for new trial was filed and overruled by the court.The error assigned in this court for reversal is the overruling of the motion for a new trial.The specific ground of the motion for a new trial, the overruling of which is relied upon for a reversal, is the giving of counterclaimant's instruction No. 2 and that is the only question presented on this appeal.

The ultimate conclusion of this court renders it unnecessary to review the instruction complained of.

It is contended by appellee that no question is presented for review in this court for the reason that appellant failed to conform to Rule 1--7 of the Supreme Court effective September 2, 1940.Said Rule 1--7 reads as follows: “Instructions.Where instructions are tendered, the court shall indicate thereon in advance of the argument the instructions that are to be given and the instructions refused.After the court has indicated the instructions to be given, each party shall have a reasonable opportunity to examine such instructions and to state his specific objections to each, out of the presence of the jury and before argument, or specific written objections to each instruction may be submitted to the court before argument.No error with respect to the giving of instructions shall be available as a cause for new trial or on appeal, except upon the specific objections made as above required.”

[1][2]Appellant's objection to the giving of said instruction No. 2 is as follows: “The plaintiff objects to the giving of counterclaimant's instruction No. 2 for the following reasons: (1) That said instruction is an erroneous statement of the law.(2) That said instruction is misleading.”The appellee contends that these objections are not specific objections as contemplated in said Rule 1--7 and, therefor, no question is saved nor presented to this court on appeal.We agree with this conclusion.The objections stated are too general.The object of this rule is for the correction of errors then and there appearing in the instruction and it is the duty of counsel when a judicial error is apparent to him or what he deems an error in the conduct of the court, he shall call the judge's attention to it so that the same may be corrected at that time and not necessitate the delay and expense of an appeal to this court.The same basic reasons that exist for the making of a specific objection to the introduction of evidence applies also to the giving of instructions.

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