Morrow, Inc. v. Munson, 18926

• Decision Date: 20 May 1958
• Docket Number: No. 18926,18926
• Citation: 150 N.E.2d 256,129 Ind.App. 113
• Parties: MORROW, Inc., Appellant, v. Marion MUNSON, Frank Harris and Calvin Harris, Doing Business Under the Name, Title and Style of Quality Beverage Company, Wesley A. Slocum, Appellees.
• Court: Indiana Appellate Court

Page 256

150 N.E.2d 256

129 Ind.App. 113

MORROW, Inc., Appellant, v. Marion MUNSON, Frank Harris and Calvin Harris, Doing Business Under the Name, Title and Style of Quality Beverage Company, Wesley A Slocum, Appellees.

No. 18926.

Appellate Court of Indiana, In Banc.

May 20, 1958.

Rehearing Denied June 19, 1958.

Transfer Denied Oct. 27, 1958.

Mark P. Lockwood, Princeton, Rice & Cheatam, Nat H. Youngblood, Evansville, for appellant.

Frederick P. Bamberger, of Ortmeyer, Bamberger, Ortmeyer & Foreman, Evansville, for appellees.

PFAFF, Judge.

Appellant, Morrow, Inc., brought this action against appellees, Marion Munson, Frank Harris and Calvin Harris, doing business under the name, title and style of Quality Beverage Company, and Wesley A. Slocum to recover damages to its White motor tractor and Fruehauf trailer resulting from a collision with a 1948 Federal tractor and trailer owned by appellees Harris and Harris and operated by their agent and servant, the appellee Slocum. The appellees Harris and Harris filed a counter-claim for damages to their tractor and trailer and for the loss of a cargo of merchandise destroyed by reason of said collision.

Appellees filed an answer in one paragraph in compliance with Rule 1-3 of the Supreme Court, thereby denying the alleged negligence and damage.

Trial was had by jury and at the close of appellant's evidence, the court directed a verdict for appellees upon appellant's complaint. Following all the evidence, the jury returned a verdict in favor of the appellees upon their counter-claim in the sum of $8,300.

Inasmuch as all questions which appellant attempts to present here depend upon the evidence, they may not be considered if the evidence is not properly in the record.

The bill of exceptions containing the evidence is certified by the judge whom this court knows judicially was the regular judge of the trial court. Judicial notice is taken as to who are the regular judges of the circuit court of this state. Zonker v. Cowan, 1882, 84 Ind. 395, at page 397; Heacock v. Arnold, 1929, 90 Ind.App. 476, 479, 169 N.E. 89; Folger v. Barnard, 1920, 73 Ind.App. 523, 525, 125 N.E. 460. In Folger v. Barnard, supra, this court said:

'We judicially know that Fred C. Gause was judge of the Henry Circuit Court. He assumed jurisdiction of this case, after which there was a trial by jury, which resulted in a verdict and judgment for appellee. At no time during the course of the proceedings in the trial court did appellants make any objection to Judge Gause assuming jurisdiction of the trying the case. The Supreme Court in Perry v. Pernet, 1905, 165 Ind. 67, 74 N.E. 609, 6 Ann.Cas. 533, held that when a judge has been called to try a cause, and no objection is made at the time, or to his sitting in the cause when he assumes to act, all objections thereto will be deemed waived on appeal. See, also, Lillie v. Trentman, 1891, 130 Ind. 16, 29 N.E. 405; Jordan v. Indianapolis Coal Co., 1913, 52 Ind.App. 542, 100 N.E. 880; Larrance v. Lewis, 1912, 51 Ind.App. 1, 98 N.E. 892. Appellants' conduct in this matter looks too much like an attempt to gamble on the decision of the court, and, losing the wager, pull down the stakes, which we cannot permit.'

Appellees argue the insufficiency of the bills of exceptions inasmuch as they to not show that the regular judge presided at the trial of the case. There is nothing anywhere in the record to suggest that any other judge presided. In view of the presumptions in favor of the action taken in the trial court, appellees' argument is without merit. State Building & Loan Ass'n v. Brackin, 1901, 27 Ind.App. 677, 682, 62 N.E. 91; Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, § 2790, Comment 5, p. 371; West's Indiana Law Encyclopedia, Appeals, § 514, p. 413, with cases cited.

Appellees argue that what purports to be a bill of exceptions containing the evidence lacks essential features of such a bill. It is true that there is no caption or formal commencement or introductory statement of any kind. Appellees say it is further defective in that:

1. It does not show the date of the trial;

2. It does not show that the evidence was introduced upon the issues joined by the pleadings;

3. It is not identified as being a bill of exceptions; and,

4. That there is nothing to show who the parties were on whose behalf the evidence was given.

In determining the sufficiency of a bill of exceptions we must examine it as a whole. In Kist v. Coughlin, 1944, 222 Ind. 639, 648, 57 N.E.2d 199, 202, 57 N.E.2d 586, our Supreme Court said:

'The appellees further claim that the evidence is not in the record because the certificate of the judge does not state that it contains all of the evidence given in the cause, and the appellants refer to the certificate of the reporter wherein the statement is made that it contains all of the evidence. In order to determine this question we must examine the bill of exceptions as a whole to ascertain whether or not it contains words which indicate clearly and unmistakably that the bill does contain all of the evidence.'

The record discloses that an order book entry made on the 30th day of July, 1956, recites that plaintiff's bill of exceptions No. 1 containing the evidence was filed. The questioned bill then follows, and it bears the file mark of the Clerk of the trial court showing that it was filed on that date. The dates various witnesses testified appear in the bill and such dates correspond with the order book entries showing the dates of the trial. The testimony of witnesses is preceded by a statement as to who called the witness, the plaintiff or defendants and counter-claimants. Following the evidence is the statement, 'and this was all the evidence given in said cause.' The Reporter's certificate bears the title of the case and the name of the court and certifies that the evidence preceding her certificate is a full, true and complete transcript of all the evidence given in said cause. The judge's certificate is signed by the regular judge of the trial court the bears the title of the case and the name of the court and certifies that, 'This Bill of Exceptions No. 1 correctly sets forth and contains all the evidence given in the trial of said cause.'

The following statement contained in Hayes Freight Lines v. Oestricher, 1946, 117 Ind.App. 143, 66 N.E.2d 612, 68 N.E.2d 792, 794, is appropriate here:

'As to the failure of the transcript to show a filing of the bill, or where or in what court it was filed, the bill itself bears the file mark of the clerk of the Warrick Circuit Court (Walner v. Capron, 1946, 224 Ind. 267, 66 N.E.2d 64) and the certificate of the clerk of that court plainly recites that '* * * the Bill of Exceptions incorporated in this transcript is the original and that the same was filed in the clerk's office and made a part of the record in this cause * * *' on the date as shown.

'As to the other objections, the bill is certainly not a work of art, and under the statutes formerly governing appeals, as interpreted and applied in the earlier cases in this and the Supreme Court, it might be successfully challenged. The present rules, however, as adopted and promulgated by our Supreme Court, were designed to simplify appellate procedure, and remove the pitfalls that formerly plagued the unwary, and they have been uniformly liberally construed to accomplish that purpose.

'It is true the bill has neither formal commencement nor conclusion, nor in fact any introductory statement as to what it purports to be or to contain. But we need not confine ourselves to an examination of commencement or conclusion. In determining its sufficiency as a bill of exceptions against the objections urged we must examine the instrument as a whole. Kist v. Coughlin, 1944, 222 Ind. 639, 57 N.E.2d 199, 57 N.E.2d 586. Such an examination reveals, following a caption which discloses the title, number and venue of the case and the appearances therein, a typewritten recital of the evidence, and following that the statement 'And this was all of the evidence introduced and given in the trial of this case.' The signature of the trial judge was affixed to the 'Judge's Certificate to Bill of Exceptions' which followed.

'The rule requires the trial judge to sign a bill of exceptions if correct. Rule 2-4. By his signature he certified as correct that which preceded it, including the statement 'And this was all of the evidence introduced and given in the trial of this case.' In our opinion an examination of the instrument as a whole discloses it to be a bill of exceptions which contains the evidence, all of the evidence and the only evidence given in the cause.'

In our opinion the bill of exceptions in the present case examined as a whole is sufficient as a bill of exceptions containing the evidence.

Appellant urges that the court erred in sustaining the motion of the appellees for a peremptory instruction at the close of appellant's evidence and in giving to the jury appellees' instruction which directed the jury to return a verdict for appellees upon the issues formed on appellant's complaint.

In passing upon this question we may consider only the evidence favorable to the appellant, the party against whom the motion was directed and all reasonable inferences deducible therefrom. Callahan v. New York Cent. R. Co., 1955, 125 Ind.App. 631, 634, 125 N.E.2d 263; Whitaker v. Borntrager, 1954, 233 Ind. 678, 122 N.E.2d 734; Phares v. Carr, 1952, 122 Ind.App. 597, 106 N.E.2d 242. As stated by this court in Phares v. Carr, supra, 122 Ind.App. at page 599, 106 N.E.2d at page 243:

'The question in this case having been presented upon sustaining of a motion for a directed verdict at the conclusion of plaintiff's evidence, it was not within the province of the trial court to weight the evidence as is true upon motion for a new trial. Heiny v. Pennsylvania R. Co., 1943, 221 Ind. 367, 47 N.E.2d 145. Rather, it was the duty...