Spence v. Downham

• Decision Date: 23 February 1967
• Docket Number: No. 1,No. 20548,20548,1
• Parties: Gregory Kent SPENCE, Appellant, v. Wayne E. DOWNHAM, Appellee
• Court: Indiana Appellate Court

Page 587

223 N.E.2d 587

140 Ind.App. 385

Gregory Kent SPENCE, Appellant, v. Wayne E. DOWNHAM, Appellee.

No. 20548.

Appellate Court of Indiana, Division No. 1.

Feb. 23, 1967.

Rehearing Denied March 21, 1967.

Miller, Tolbert & Hirschauer, Logansport, for appellant.

Lynn O'Neill, Logansport, Albert W. Ewbank, Indianapolis, for appellee.

FAULCONER, Judge.

Appellee sued appellant for damages for injuries which he sustained as a result of appellee's motorcycle colliding with appellant's automobile. The jury returned a verdict for appellee and judgment was entered thereon. Appellant's motion for new trial was overruled, which is the error assigned on this appeal.

Only those specifications in appellant's motion for new trial, argued in his brief, will be considered. Rule 2--17(e) and (f), Rules of the Supreme Court, 1964 Revision; Gernhart v. State (1954), 233 Ind. 470, 472, 120 N.E.2d 265.

Appellant first argues that the trial court erred in overruling his motion to withdraw three allegations of negligence at the close of plaintiff's evidence. An examination of the motion for new trial fails to disclose such motion. There are, however, specifications that the trial court erred in overruling appellant's motion to withdraw three allegations of negligence at the conclusion of defendant's case in chief and at the conclusion of all evidence in the case. Since the error is an issue not presented to the trial court by way of specification in the motion for new trial, it cannot, for the first time, be argued here. Gernhart v. State, supra.

A review, however, of the evidence in the record before us shows evidence either establishing or from which the jury could reasonably infer each act of negligence challenged. Also, this is a general verdict and there were other allegations of negligence supported by evidence. We cannot say that the verdict was not based upon one or more allegations not contained in the motion to withdraw.

Appellant next contends that the trial court erred in giving plaintiff-appellee's Instructions Nos. 34 and 35. Nowhere in appellant's brief are the objections to these instructions set forth. On appeal, alleged errors as to instructions are not properly presented for consideration where the argument section of appellant's brief does not present the questions pertaining to the instructions and the objections thereto made in the trial court. McCoy v. State (1960), 241 Ind. 104, 121, 170 N.E.2d 43, and cases there cited; Midwest Oil Company, Inc. v. Storey (1962), 134 Ind.App. 137, 152, 178 N.E.2d 468; 3 F. & W., Ind.Pract., § 2677, p. 150 (1963 P.P.).

Appellant, in his reply brief, states that he should have included objections to Instructions Nos. 34 and 35 in his brief, and asserts that he is supplying such objections in his reply brief. This is not sufficient to present error. The purpose of a reply brief is not to advance new matter or supply omitted matter. Macbeth-Evans Glass Co. v. Jones (1911), 176 Ind. 221, 224, 95 N.E. 567; Interstate Public Service Co. v. Moore, Admx. (1929), 88 Ind.App. 439, 444, 161 N.E. 633; 3 F. & W., Ind.Pract., § 2682, p. 153 (1963 P.P.); 2 I.L.E., Appeals, § 395, p. 278.

Appellant next argues error in the trial court refusing to give his tendered Instructions Nos. 9, 15 and 26. Appellant's tendered Instruction No. 9 was covered by other instructions including appellant's Instructions Nos. 19 and 20. We are of the opinion that Instructions Nos. 15 and 26 were properly refused as not pertinent to the issues.

Appellant next contends error in the admission of testimony of a witness...