Mullins v. Bolinger

• Decision Date: 15 June 1944
• Docket Number: No. 17254.,17254.
• Citation: 55 N.E.2d 381,115 Ind.App. 167
• Parties: MULLINS v. BOLINGER.
• Court: Indiana Appellate Court

115 Ind.App. 167

55 N.E.2d 381

MULLINS

v.BOLINGER.

No. 17254.

Appellate Court of Indiana, in Banc.

June 15, 1944.

Appeal from Grant Circuit Court; Oliver D. Clawson, Judge.

Action by Leo L. Bolinger against Ray Mullins for personal injuries received in a collision between a fire truck on which plaintiff was riding and an automobile driven by defendant. Judgment for plaintiff, and defendant appeals.

Affirmed. McClure & Shenk, of Kokomo, and Campbell, Gemmill, Browne & Ewer, of Marion, for appellant.

Herman L. Ridenour, of Indianapolis, for appellee.

ROYSE, Judge.

Appellee was a city fireman riding on the back end of a fire truck answering a fire alarm in the city of Kokomo on the afternoon of August 23, 1941, when it was in collision with a Ford car driven by appellant. This is an action for damages for personal injuries received by appellee as the result of said collision. Trial by a jury resulting in a verdict in favor of appellee in the sum of $3500. Judgment on the verdict. Appellant's motion for a new trial was overruled, which ruling is the only error assigned for reversal.

Appellant concedes the only question presented by this appeal is contained in his third specification of the motion for a new trial, which is as follows: ‘The court erred in giving Instruction No. 12 of its own motion. The defendant filed written objections to said instruction at the time it was offered and objected on the ground that the instruction did not cover the proper measure of damages in the case. This objection is a part of the record.’

Instruction No. 12 given by the court on its own motion, is as follows: ‘If you find for the plaintiff in this case, in fixing the amount of his recovery, you may take into consideration the nature and extent of his injuries, if any, arising proximately from the acts of negligence complained of; whether the same are permanent or temporary; the pain and suffering, if any, arising therefrom in the past and for any pain or suffering which the plaintiff may endure in the future, if proven; the loss of time and the effect of his injuries upon his ability to perform labor and earn money; for reasonable medical expenses and hospital treatment in connection with said injuries, all as shown, if at all, by the evidence in this case, bearing on the question of damages. However, the jury, in determining the amount of damages should not take into consideration at all, any sums which the plaintiff may have received as a pension or any amounts which he may in the future receive as a pension or any amounts which the City of Kokomo have paid, if at all, toward the expenses of surgical, hospital, medical or nursing aid, in the treatment of plaintiff's said injuries, and you will award him such amount as will fairly compensate him for the damage, if any, which he has sustained as a proximate result of the negligence of the defendant as averred in his complaint, said amount however should not exceed the amount demanded in said complaint. * * *’

Appellant's written objections to this instruction were as follows:

‘1. Said instruction does not contain the proper measure of damage, in that the court instructs the jury to disregard any evidence that the evidence might show on the question of disability pension which plaintiff testified he received from the City of Kokomo.

‘2. That said instruction advises the jury to disregard any evidence that shows that the plaintiff's medical expenses and doctor bills were paid by the City of Kokomo.

‘3. That the evidence shows that plaintiff was an employee as a fireman of the City of Kokomo and we think it would be proper to show it to be a fact that the City of...