Podell v. Boger, 18928

• Decision Date: 12 November 1957
• Docket Number: No. 18928,18928
• Citation: 145 N.E.2d 730,128 Ind.App. 116
• Parties: Joyce PODELL, Appellant, v. Paul F. BOGER, d/b/a Boger's Auto Service and Earl L. Farnsworth, Appellees.
• Court: Indiana Appellate Court

Page 730

145 N.E.2d 730

128 Ind.App. 116

Joyce PODELL, Appellant, v. Paul F. BOGER, d/b/a Boger's Auto Service and Earl L Farnsworth, Appellees.

No. 18928.

Appellate Court of Indiana, In Banc.

Nov. 12, 1957.

Rehearing Denied Dec. 16, 1957.

See 146 N.E.2d 428.

George T. Patton, South Bend, for appellant.

Roland Obenchain, Jr., Roland Obenchain, South Bend, for appellee.

KELLEY, Judge.

Appellant brought this action against appellees for damages for personal injuries allegedly sustained by her as the result of an automobile collision occasioned, she alleged, by the negligence of appellee, Earl L. Farnsworth, while driving and operating, as the agent and employee of appellee, Paul F. Boger, an automobile owned by the latter. Appellees answered under the rules and that the negligence of appellant contributed proximately to the collision and her alleged injuries.

The jury found for appellees and consistent judgment was rendered thereon. Appellant's motion for a new trial asserts that the verdict is countrary to law, that it is not sustained by sufficient evidence, that the court erred in its rulings as to certain offered evidence, and that the court erred in granting appellees' motions to withdraw from the jury two of the five alleged charges of negligence.

Appellant's claimed errors do not require us to narrate the evidence and we, therefore, proceed to determine upon the charges of error contained in her motion for a new trial without detailing the same.

It is now academic, of course, that appellant, being the unsuccessful protagonist, cannot avail herself of the claim of insufficiency of the evidence and appellant does not argue such specification.

The complaint embraced five charges of negligence. They are:

(a). Defendant carelessly and negligently was driving at a dangerous and unlawful rate of speed, to-wit: 45 miles per hour.

(b). Defendant carelessly and negligently failed to keep and maintain a proper lookout for other persons and automobiles properly and lawfully using said highway, including plaintiff and her said automobile.

(c). Defendant carelessly and negligently failed to have and keep his automobile under control, so as to be able to bring it to a stop in order to avoid a collision with others, including the plaintiff, who might be and were lawfully using said highway.

(d). Defendant carelessly and negligently failed to keep and maintain the brakes on said automobile in proper repair and in good working order so as to enable him to bring said automobile to a stop in order to avoid a collision with others, including plaintiff, who might be and were lawfully using said highway.

(e). Defendant carelessly and negligently failed to apply his brakes in time to avoid striking plaintiff's automobile.

Appellant called as a witness Freida Noble, city clerk of the City of South Bend, Indiana and custodian of the official records of the City Court of said city, and asked her (taken from appellant's motion for a new trial):

'Q. Turn to Book 18, Page 183. Will you cite to the court and jury the record in Criminal Cause 17366?'

Appellees objected to the question as not being in proper form and not material to the issues joined. Appellant then offered to prove that

'If the witness were allowed to answer the question she would say in substance that Earl L. Farnsworth pleaded guilty to the criminal offense of following too close in South Bend City Court on February 18, 1954, same being Criminal Docket 18, Page 183, same being cause number 17366. The records show Mr. Farnsworth pleaded guilty and was fined in the sum of $2.75 * * *.'

The court sustained the objection.

Neither the record of the City Court pertaining to said cause number 17366, said Criminal Docket 18, nor any other record, paper, or entry relative thereto was offered in evidence by appellant. While we do not know just what the question, as phrased, required of the witness, the offer to prove indicates that the witness would undertake to testify as to the contents of the Criminal Docket referred to. The word 'cite', in the sense it was apparently used in the question, has been defined to mean 'To quote, as a passage from a book, usually by way of authority or proof.' Webster's International Dictionary, Second Edition. It is evident that the record itself was the best evidence of the asserted criminal case and the proceedings attendant thereon. It is evident, also, that neither the question nor the proffered answer established any connection, relationship, or identity between the occurrence or accident here involved and the occurrence giving rise to the asserted criminal proceeding in the City Court.

The appellee, Farnsworth, was called as a witness by appellant and, as set forth in appellant's motion for a new trial as a ground of error, the following took place in the course of his direct examination:

'Q. Were you involved in an automobile collision on February 13, 1954? A. Yes, I was.

'Q. As a result of that collision I will ask you whether or not you appeared in South Bend City Court on February 18, 1954, and entered a plea of guilty to the criminal offense of driving too close?'

Appellees objected to the latter question as being immaterial upon the issues joined.

Appellant thereupon offered to prove that

'If the witness were allowed to answer the question he would say on February 13, 1954 he pleaded guilty in the South Bend City Court to the offense of following too close, said offense arising out of an automobile accident in the city of South Bend on February 13, 1954. Said defendant was fined in the sum of 2.75.' (Our emphasis.)

The court sustained the objection.

Appellant argues that 'the question was proper as a direct admission against interest.' The difficulty lies in the failure of the question or the offer to prove to establish that the offense to which said appellee allegedly pleaded guilty arose out of or was connected with the occurrence giving rise to the instant action. The establishment of such connection or relationship assumes importance by reason of the fact that this action is brought against the employer, appellee Boger, as well as the employee, Farnsworth, and judgment is sought against both. Now, if the offense assertedly committed by Farnsworth, the employee, and to the charge of which he alledgedly pleaded guilty, was not committed in connection with the performance by him of his duties as such employee or occurred while he was outside the scope of his employment, such...