Siebeking v. Ford, 18924

• Citation: 128 Ind.App. 475,148 N.E.2d 194
• Decision Date: 20 February 1958
• Docket Number: No. 18924,18924
• Parties: William H. SIEBEKING, Farm Bureau Cooperative and Hatchery, Appellants, v. Gladys FORD, Administratrix of the Estate of Earl Ford, Deceased, Appellee.
• Court: Court of Appeals of Indiana

Page 194

148 N.E.2d 194

128 Ind.App. 475

William H. SIEBEKING, Farm Bureau Cooperative and Hatchery, Appellants, v. Gladys FORD, Administratrix of the Estate of Earl Ford, Deceased, Appellee.

No. 18924.

Appellate Court of Indiana, In Banc.

Feb. 20, 1958.

Rehearing Denied April 3, 1958.

Nat. H. Youngblood, Herman L. McCray, William L. Craig, Evansville, for appellants.

John H. Jennings, Gerald Fuchs, Evansville, for appellee.

PFAFF, Judge.

This is an appeal from a judgment in an action brought by Earl Ford to recover damages for loss of services and expenses arising out of the wrongful death of his minor son, Billy Allan Ford, age 17, in an accident between a truck owned and operated by appellants and a motorcycle operated by said Billy Allan Ford on or about April 1, 1952 in the city of Evansville, Indiana. Earl Ford died on December 8, 1954 and thereafter Gladys Ford (mother of Billy Allan Ford) as administratrix of his estate was substituted as party plaintiff, now appellee.

The cause was tried by a jury and the jury returned a verdict assessing appellee's damages in the amount of $10,000 and judgment was entered upon such verdict.

Appellee makes certain contentions as to defects in the transcript and appellants' brief. One is that, 'there is no showing in the appellants' brief that the Clerk of the court made any kind of certification of the transcript of record in accordance with any praecipe.' We are not clearly informed in what respect the certification is deficient and do not note any such deficiency. The statutory provisions as to the place of insertion of the praecipe in the transcript is directory only and insertion at another place is sufficient. The praecipe, which is in the transcript at page 626 in the instant case, is as follows:

'The defendants hereby request you to make up a full, complete, true and correct transcript of all the 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 the 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; 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 v. Walkerton, etc., Cemetery Ass'n, 1933, 204 Ind. 693, 184 N.E. 537; State v. McNulty, 1950, 228 Ind. 497, 92 N.E.2d 839; Gray v. Miller, 1952, 122 Ind.App. 531, 106 N.E.2d 709. In State v. McNulty, supra [228 Ind. 497, 92 N.E.2d 841], it was stated by Judge Starr:

'Appellees insist that appellant's brief does not comply with our rules. They object that said brief does not set out appellant's praecipe for the transcript, nor does it set forth that the indictments were endorsed as a 'true bill' or that they were endorsed by the foreman of the grand jury. There is no merit to any of these objections. Enough of the record is set out to fully present the errors relied upon as required by Rule 2-17 of this court. If a praecipe was not filed, or if any or all of the indictments were not endorsed as required by law, such facts could have been pointed out in appellant's answer brief as provided by Rule 2-18 of this court.'

Appellants complain first of the overruling of their motion to strike out parts of appellee's amended complaint. The overruling of a motion to strike out part of a pleading is not ordinarily reversible error, even though such action is erroneous. Trent v. Rodgers, 1952, 123 Ind.App. 139, 104 N.E.2d 759; Heinrich v. Ellis, 1943, 113 Ind.App. 478, 48 N.E.2d 96; Lindley v. Sink, 1940, 218 Ind. 1, 30 N.E.2d 456, 2 A.L.R.2d 772; Holloway v. Thompson, 1942, 112 Ind.App. 229, 42 N.E.2d 421. In Trent v. Rodgers, supra [123 Ind.App. 139, 104 N.E.2d 761] this court, speaking through Judge Bowen, said:

'The overruling of a motion to strike out part of a pleading ordinarily is not reversible error, even though such action be erroneous. Heinrich v. Ellis, 1943, 113 Ind.App. 478, 48 N.E.2d 96; Lindley v. Sink, 1940, 218 Ind. 1, 30 N.E.2d 456; Holloway v. Thompson, 1942, 112 Ind.App. 229, 42 N.E.2d 421. From an examination of the whole record we must conclude that appellant's first assignment of error is not tenable. American Income Insurance Co. v. Kindlesparker, 1942, 110 Ind.App. 517, 37 N.E.2d 304; Butt v. Iffert, 1909, 171 Ind. 554, 86 N.E. 961; Flanagan's Pleading and Procedure § 126, p. 181, and cases therein cited; 2 Lowe's Revision Work's Indiana Practice § 23.30, p. 127.'

From an examination of the whole record, such action was not error in this case

Appellants next complain that the court erred in overruling their demurrer to the amended complaint. No authorities are cited for their contention, but appellants simply say, 'the error committed by the trial court in overruling defendants' demurrer to plaintiff's amended complaint is involved in later rulings of the trial court made during the trial of this cause, and will be discussed later in this brief.' We find no further discussion in the appellants' brief and no error is presented. Alleged errors are waived by a failure to support the argument by authorities as required by Rule 2-17(e) and (f), Rules of the Supreme Court. Stanley v. Gieseking, 1952, 230 Ind. 690, 105 N.E.2d 171; Dowd v. Basham, 1954, 233 Ind. 207, 116 N.E.2d 632; 2 West's Indiana Law Encyclopedia (Appeals), § 387, p. 262:

'The argument in a brief should be supported by carefully selected authorities, Walls v. State ex rel. Malott, 1894, 140 Ind. 16, 38 N.E. 177, and a mere contention, unsupported by authorities, does not constitute a brief within the rules. Hollingsworth v. State, 1887, 111 Ind. 289, 12 N.E. 490. Rule 2-17(e) requires the citation, in the argument portion of the brief, of authorities and statutes relied upon, together with the setting out verbatim of the relevant parts of such statutes as are deemed to have an important bearing, and where the appellant's brief fails to cite any authorities either in point or by analogy, in support of his contentions, such contentions are waived. White v. Board of Medical Registration and Examination of Ind., 1956, 235 Ind. 572, 134 N.E.2d 556. Under the prior rule requiring a portion of the brief to be prepared under the heading 'Propositions, Points and Authorities', a proposition urged by the appellant without presenting any authorities in support thereof would not be considered by the reviewing court, Gamble v. Lewis, 1949, 227 Ind. 455, 85 N.E.2d 629; Lincoln Finance Corp. v. Morgan, 1950, 120 Ind.App. 116, 90 N.E.2d 522; Egger v. Huff, 1948, 118 Ind.App. 461, 81 N.E.2d 378; Carithers v. Carithers, 1946, 116 Ind.App. 607, 65 N.E.2d 640; Anderson v. Moise, 1945, 116 Ind.App. 240, 63 N.E.2d 303, and, accordingly, an alleged cause for a new trial, Halbert v. Hendrix, 1950, 121 Ind.App. 43, 95 N.E.2d 221, and an assignment of error, Armstrong v. Azimow, 1948, 118 Ind.App. 213, 76 N.E.2d 692, not supported by citation of any authority, were not considered by the reviewing court and were held waived.

'By virtue of Rule 2-15 additional authorities in support of any proposition stated in the briefs may be filed by either party at any time, without comment or argument. Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, §§ 2692, 2693.'

Appellants next contend that the verdict is contrary to law and not sustained by sufficient evidence.

Their contention is that, 'the uncontradicted evidence of every witness who testified on the subject at the trial of this cause shows that Billy Allan Ford was guilty of negligence which proximately contributed to his death.' Appellants further contend that the court erred in not directing a verdict upon their motion that it do so, which contention is based upon the same ground and which reads as follows: 'These two causes present a court's error in overruling the defendants' motion for a directed verdict at the close of plaintiff's evidence and which motion was renewed and restated at the close of all the evidence. It is the defendants' contention that the uncontradicted evidence in this cause so conclusively shows contributory negligence as a matter of law, that both of said motions should have been sustained.' This requires an examination of the evidence in this case.

On the first day of April, 1952, at about the hour of nine o'clock in the morning, Division Street was a paved public highway in the corporate limits of the city of Evansville, Indiana, and extended in a more or less easterly and westerly direction; that Fares Avenue extended in a northerly and southerly direction and was also a paved public street in said city and the same extended into the said Division Street from the south. North Fares Avenue enters Division Street from the north at a point considerably east of where it is entered by South Fares Avenue.

One Adrian Smith, a witness for the appellee, testified that in accordance with instructions from his employer, he drove Billy Allan Ford and one James McIntosh to the armory so that they could ride two motorcycles back to the employer's place of business. They left the armory, with Smith driving his automobile in the lead. As they approached Fares Avenue, Ford was behind Smith and McIntosh was behind Ford, the latter two riding motorcycles owned by Bud Bays, a motorcycle dealer in the city of Evansville.

The appellant, William H. Siebeking, who was then admittedly acting as the agent, servant and employee of the other appellant, Farm Bureau Cooperative and...