Siebeking v. Ford
| Decision Date | 07 December 1954 |
| Docket Number | No. 18486,18486 |
| Parties | , 52 A.L.R.2d 177 William H. SIEBEKING, Farm Bureau Cooperative & Hatchery, Appellants, v. Earl FORD, Appellee. |
| Court | Indiana Appellate Court |
Nat H. Youngblood, Herman L. McCray, Ruth E. Maier, Evansville, for appellants.
John H. Jennings, Evansville, for appellee.
This is an appeal from a judgment in an action for the wrongful death of the appellee's minor son, Billy Ford, as a result of a truck and motorcycle accident. Issues were joined upon the appellee's complaint in one paragraph alleging acts of negligence, and the appellants' answer thereto. The cause was tried by a jury and the jury returned a verdict assessing appellee's damages in the amount of $11,000 and judgment was entered upon such verdict.
The sole error assigned for reversal is that the court erred in overruling appellants' motion for a new trial. Specification No. 21 in the appellants' motion for a new trial urges irregularity and misconduct of the jury which was prejudicial to appellants and prevented them from having a fair trial. The appellee asserts that bills of exceptions numbered 1, 2 and 3 were not properly requested in the praecipe and are not therefore in the record before this court. The praecipe which is in the transcript in the instant case is as follows:
'The defendants hereby request you to make up a full, complete, true and correct transcript of all papers, orders and proceedings filed, made and had in this cause, excepting only the defendants' original bill of exceptions containing the evidence and which said bill of exceptions you are requested to embody in said transcript without copying, and when so prepared, you will certify to said transcript, for use on appeal of this cause to the Appellate Court of Indiana.'
The fact that such praecipe was not appended to the transcript immediately before the certificate of the clerk is immaterial. Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, § 2201, comment 9. Also, this praecipe is sufficient to include all bills of exceptions. Finerty v. State ex rel. Greenwald, 1939, 215 Ind. 346, 19 N.E.2d 846; Smith v. Switzer, 1933, 205 Ind. 404, 408, 186 N.E. 764.
Under the specification of misconduct in appellants' motion for a new trial there was filed with such motion the affidavit of three attorneys of the bar of the court below, one J. William Davidson and one Robert N. Tracewell, former judge of the Superior Court of Vanderburgh County, and one Robert J. Hayes. The affidavit of Davidson was included within the transcript, and the other two affidavits were properly certified by the clerk pursuant to a writ of certiorari filed separately. These affidavits show in substance the following facts:
That a police officer of the city of Evansville, Louis Rausch, testifying for the plaintiff on rebuttal as the last witness in the case, and in answer to a question propounded by the attorney for the plaintiff, testified in substance that the defendant, William H. Siebeking, who was driving the truck involved in the accident, told him, the police officer, when he was interviewing him after the accident, that he, the defendant, did not give any signal for a left turn. That during the giving of his testimony said police officer held a roll of papers in his hand which he stated was a copy of his report. That he refused to show his report of the accident in question to counsel for the defendant. That immediately after the witness left the witness stand, the court excused the jury and directed them to stand aside within call of the bailiff. The judge and attorneys in the case left the court room and the jury walked out of the court room into the hall adjoining, and the police officer, Louis Rausch, who had just testified, followed the jury. That the jury surrounded said witness in a circle in the hall about 50 feet from the entrance to the court room and engaged in a conversation with him from two to five minutes. The affidavit of Robert Hayes certifies that while he was standing near one of the jurors, Clemen Hamilton, a conversation was had with said officer about police reports in general as to whether they were confidential, and said officer stated that they were. The affidavits of all three attorneys certified that the jurors surrounded the police officer witness and engaged in conversation with him after he had given his testimony.
Because of the nature of the accommodations generally in court rooms, it must be conceded that innocent...
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Siebeking v. Ford, 18924
...Practice, § 2201, Comment 9; Cleveland, C., C. & St. L. R. Co. v. Morrey, 1909, 172 Ind. 513, 88 N.E. 932; Siebeking v. Ford, 1955, 125 Ind.App. 365, 122 N.E.2d 880, 52 A.L.R.2d 177. It is not essential that the Clerk's certificate or the praecipe be incorporated in appellants' brief. Paul ......
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Gilson v. City of Anderson
...before the case was submitted to the jury. The law in this regard is stated quite well in the case of Siebeking et al. v. Ford (1954), 125 Ind.App. 365, 122 N.E.2d 880, 52 A.L.R.2d 177, wherein the Court 'The law is well settled that in matters of misconduct that if the party, or his attorn......
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Gerner v. Marshall
...(1958), 237 Ind. 622, 624, 147 N.E.2d 581; Gamble v. Lewis (1949), 227 Ind. 455, 467, 85 N.E.2d 629; Siebeking et al. v. Ford (1955), 125 Ind.App. 365, 370, 122 N.E.2d 880, 52 A.L.R.2d 177. For the above reasons the matters stated in appellants' affidavits in the motion for new trial presen......
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Brunson's Estate v. White
...used by the jurors in reaching a verdict, such misconduct is a cause for a new trial.' In the case of Siebeking et al. v. Ford (1954), 125 Ind.App. 365, 371, 372, 122 N.E.2d 880, 882, after both sides had rested and the trial court stood recessed for the purpose of settling final instructio......