Shepherd v. Goben

• Decision Date: 16 January 1895
• Parties: SHEPHERD v. GOBEN.
• Court: Indiana Supreme Court

142 Ind. 318

39 N.E. 506

SHEPHERD

v.GOBEN.¹

Supreme Court of Indiana.

Jan. 16, 1895.

Appeal from circuit court, Parke county; A. F. White, Judge.

Action by John C. Shepherd against John L. Goben. From a judgment for defendant, plaintiff appeals. Affirmed.

Hurley & Clodfeltio and Coppage & White, for appellant. Crane & Anderson and Wright & Seller, for appellee.

HACKNEY, J.

The appellant sued the appellee in the circuit court for the recovery of $5,000 damages alleged to have been sustained in the exchange of certain real estate in Crawfordsville for a farm in Illinois. The theory of the suit was that the alleged false and fraudulent representations of the appellee as to the quality and value of the farm had deceived the appellant, to his injury in the said sum. All of the questions for our consideration arise upon the action of the trial court in overruling the appellant's motion for a new trial.

As tending to prove an allegation that the farm was not as productive as represented, the appellant was asked, as a witness, to state what he had received from the place each year. The appellee's objection was sustained, and no offer or statement of what was proposed to be proven was made. No question, therefore, is properly presented. Wright v. Fultz (Ind. Sup.) 38 N. E. 175;Smith v. Gorham, 119 Ind. 436, 21 N. E. 1096;Higham v. Vanasdol, 101 Ind. 160; Judy v. Citizen, Id. 18; Railway Co. v. Lansing, 52 Ind. 229;Adams v. Cosby, 48 Ind. 153; Lewis v. Lewis, 30 Ind. 257; City of Evansville v. Thacker, 2 Ind. App. 371, 28 N. E. 559.

On motion of the appellee, the court struck out certain of the appellant's evidence of the appellee's representations as to the market value of corn and oats in the market near said farm. In this ruling there was no error, since no issue was presented by the pleadings as to any such representations.

The trial court admitted evidence from the appellee of the character, condition, and location of the Crawfordsville property, as tending to establish its value, and in addition permitted direct evidence of its value. This evidence was admitted, over the objection of the appellant, and was thereafter, and before the close of the evidence, withdrawn from the consideration of the jury by the direction and admonition of the court, as follows: “Gentlemen of the jury, all of the testimony in the case given on either side, in reference to the actual value of the Crawfordsville property at the time of the trade in question, and at any time during the negotiations concerning the trade, is withdrawn from the jury,-concerning the actual value. There is no reference now as to what was the agreed price. You are directed to give such testimony no consideration whatever.” There having been evidence also of the agreed price at which said property was considered in the trade, the court manifestly discriminated between the agreed price and the actual value, excluding the latter from consideration, but retaining the evidence of the agreed price. All of the evidence as to said property, to which objection was urged and exception reserved, had reference to the actual value, as distinguished from the agreed price, and the action of the court in withdrawing the evidence of actual value was fully as broad as the evidence objected to. While it is argued that the withdrawal did not cover the entire evidence upon the subject, it is insisted, also, that the admission of the evidence was such prejudicial error that it could not be withdrawn. It has been frequently held in this state that evidence erroneously admitted may properly be withdrawn by the court. Zehner v. Keppler, 16 Ind. 290;Adams v. Dale, 38 Ind. 105;Railway Co. v. Bush, 101 Ind. 582;Wishmier v. Behymer, 30 Ind. 102;Gebhart v. Burkett, 57 Ind. 378;Moore v. Shields, 121 Ind. 267, 26 N. E. 86;Blizzard v. Applegate, 77 Ind. 516; Railway Co. v. Montgomery, 85 Ind. 494; Elliott, App. Proc. § 701; Pennsylvania Co. v. Roy, 102 U. S. 451. In the present case the withdrawal was complete, and the direction to disregard it was explicit, and, under the authorities cited, the error, if any, was fully cured. If the effect of the erroneous evidence was such as to prejudice the jury against the cause of the appellant, notwithstanding its withdrawal and the admonition to disregard it, the burden would rest upon the appellant to establish such prejudice; and this court will not presume, as counsel insist, that the evidence so withdrawn prejudiced the jury against his cause. Elliott, App. Proc. §§ 701, 702; Pennsylvania Co. v. Roy, supra.

The appellant complains, further, of the admission of certain evidence of statements made by and to the appellant's wife concerning the character the farm. No question is made...