Mesker v. Leonard

• Decision Date: 17 November 1911
• Docket Number: 7,299
• Citation: 96 N.E. 485,48 Ind.App. 642
• Parties: MESKER v. LEONARD
• Court: Indiana Appellate Court

96 N.E. 485

48 Ind.App. 642

MESKER v. LEONARD

No. 7,299

Court of Appeals of Indiana

November 17, 1911

From Gibson Circuit Court; O. M. Welborn, Judge.

Action by Erastus Leonard against George L. Mesker. From a judgment for plaintiff, defendant appeals.

Reversed.

Elmer E. Stevenson and Iglehart, Taylor & Heilman, for appellant.

OPINION

ADAMS, J.

This action was brought by appellee against appellant in the Superior Court of Vanderburgh County. After the issues were formed a change of venue was taken to the Gibson Circuit Court, where the cause was tried by a jury, and a verdict returned for appellee. A motion for a new trial was overruled, and judgment was rendered on the verdict for $ 900.

The errors assigned on appeal are as follows: The Superior Court of Vanderburgh County erred in overruling (1) the motion to make the complaint more specific, and (2) the demurrer to the complaint; and the court erred in overruling appellant's motion for a new trial.

The first error assigned is waived by failure to argue, and the second error calls in question the sufficiency of the complaint to state a cause of action. The complaint is in one paragraph, and is uncertain and indefinite. It starts upon one theory and concludes upon another. It declares that appellee was employed in one line of service, and was injured while acting in obedience to the orders of the appellant in another line of service. There was also, as will hereinafter be seen, a variance between the proof and the averments of the complaint, and certain other errors which require a reversal of the cause. Upon a retrial it will be necessary to amend the complaint, and we do not think any good purpose would be served by passing upon the sufficiency thereof, in its present form.

In support of the third assignment of error complaint is made of instruction three, given to the jury by the court on its own motion. This instruction is as follows "If you find for the plaintiff, in assessing the damages the plaintiff is entitled to recover in the case, the jury has the right to take into consideration all the facts and circumstances proved by the evidence, the nature and extent of plaintiff's physical injury, whether or not such injury is permanent, and the fact, if it is a fact, that he has lost the full use of his right hand; his suffering in body, if any, resulting from such injuries, as the jury may believe from the evidence he has sustained by reason of such injuries; the loss of time and ability to work on account of such injuries. The jury has the right also to take into account the decrease of earning power, if any, caused by the injury, and altogether to find for the plaintiff such sum as in the judgment of the jury, under the evidence, will fairly compensate the plaintiff for the injuries he has sustained or will sustain."

It is contended that by the words, "the jury has the right to take into consideration all the facts and circumstances proved by the evidence," the court gave the jury complete liberty, in fixing the damages, to consider all the facts and circumstances in evidence in the case, without regard to their relevancy to, or bearing upon, the issue of damages. Appellant further insists that in almost every case, facts which may be proper for consideration upon some of the controverted questions are not proper upon the question of the measure of damages; that the jury is not to determine the amount of the recovery from all the facts, but only from such facts as form proper elements for consideration in estimating damages. In this contention, we think appellant is clearly right.

This court, in the case of Broadstreet v. Hall (1904), 32 Ind.App. 122, 69 N.E. 415, passed upon an instruction detailing the elements to be considered in determining the amount of damages, concluding with the following words: "And all facts and circumstances proved in the case." The court said "It is not the...