State ex rel. Milligan v. Ritter's Estate

• Decision Date: 20 May 1943
• Docket Number: 27872.
• Citation: 48 N.E.2d 993,221 Ind. 456
• Parties: STATE ex rel. MILLIGAN, Superintendent of Madison State Hospital, v. RITTER'S ESTATE.
• Court: Indiana Supreme Court

48 N.E.2d 993

221 Ind. 456

STATE ex rel. MILLIGAN, Superintendent of Madison State Hospital, v. RITTER'S ESTATE.

No. 27872.

Supreme Court of Indiana

May 20, 1943

Appeal from Owen Circuit Court; Frank M. Martin, Judge.

George N. Beamer, Atty. Gen., and James P. Wason Deputy Atty. Gen., for appellant.

Willis Hickam, of Spencer, for appellee.

FANSLER Judge.

The appellant filed a claim against the estate of Howard L Ritter, deceased, seeking to recover the sum of $5,583 for the treatment and maintenance of the decedent from March 6 1917, to March 29, 1940. The claim was disallowed and transferred to the trial docket, where it was submitted to a jury for trial without the formality of an answer. The case was tried upon the theory that the right to a recovery is controlled by statute. The substantial controversy concerned the applicability and effect of certain statutes and amendments as will hereafter appear.

Construing the statutes involved, the court concluded that the plaintiff was entitled to recover only from June 10, 1935. The rate of compensation for this period is definitely fixed by the statute, and there was no dispute as to the number of weeks involved, and the amount of compensation was agreed to be $1,249.29. The court excluded testimony offered by the plaintiff concerning the care and maintenance of the decedent for each year beginning with 1917 and down to and including June 9, 1935. There was no controversy about the facts. The controversy in the trial court and here involves only a construction of the statutes.

After the court had refused to hear evidence involving the prior periods, the plaintiff filed a motion in writing for a directed verdict for $1,249.29, the amount admittedly due under the evidence admitted. The motion was sustained and there was a verdict and judgment accordingly. The appellant filed a motion for a new trial, assigning the eighth statutory cause for a new trial, Burns' Ann.St. § 2-2401, subd. 8: 'Error of law occurring at the trial, and excepted to by the plaintiff, as hereinafter set out, to wit: * * *.' Five separately numbered assignments are set out, the first four specifying error in excluding, and sustaining objections to, evidence offered as to the treatment, maintenance, and care of the decedent from 1917 to 1935. The fifth recites that by reason of the exclusion of the evidence referred to 'the plaintiff was harmed to the extent of several thousand dollars and the amount of recovery was diminished to that extent, and the amount of recovery was too small.' The motion for a new trial was overruled, and error is assigned here upon that ruling.

The appellee contends that the motion for a new trial presents no question for review, since the appellant's only complaint is that the court excluded certain evidence which, if admitted, might have increased the recovery; that if the ruling upon the offered evidence was erroneous, it was harmless unless it resulted in a recovery that was too small, and that the only way to present error in the amount of recovery is by the fifth statutory cause for a new trial [Burns' Ann.St. § 2-2401, subd. 5] which is: 'Error in the assessment of the amount of recovery, whether too large or too small * * *.' We cannot agree with this contention. The amount of the recovery is admittedly correct upon the evidence which was admitted. The fifth statutory cause for a new trial refers to error in fixing or computing the amount of recovery upon evidence which has been admitted for the consideration of the court or jury trying the case. Where the trial is by jury, error in fixing the amount of the recovery is the jury's error, but where evidence of certain phases of the claim is erroneously excluded and not permitted to go to the jury, it is the error of the court. It is obvious that, under the evidence admitted, the amount of the recovery is correct. The error which prejudiced the appellant's substantial rights was the exclusion of the evidence and not the computation of the amount of recovery. In ruling upon the admission of evidence the trial court decided the only substantial question presented below, and, by assigning error upon the court's ruling thereon, the appellant has sufficiently presented that question here. The fifth numbered assignment in the motion for a new trial was designed to show that the error assigned was prejudicial. It was not a separate assignment of error.

The appellee also contends that the appellant cannot be heard to question the correctness of the judgment rendered, or of any of the rulings leading up to that judgment, for the reason that the judgment is what he requested by his written motion. Appellee says: 'What a party expressly asks the court to do, when done, cannot be available as error, however erroneous such action may be, without a violation of the plainest principles of the law.' As supporting this contention, he cites McMahan v. McMahan, 1895, 142 Ind. 110, 40 N.E. 661, and Gray v. Gray et al., 1931, 202 Ind. 485, 176 N.E. 105. The 'invited error' principle is the basis for the rule that appellee seeks to invoke, but the quoted language is too broad. If a demurrer to a complaint is sustained the plaintiff may refuse to plead further and request the court to enter judgment against him so that he may have a basis for appeal without waiving the error or being charged with having invited it. In the instant case the plaintiff proceeded upon the theory that he was entitled to recover much more than the amount of the judgment. The trial court disagreed and excluded his offered testimony, which would have required a larger verdict and judgment. When he had put in all of the evidence which the court permitted, he was entitled to a judgment for the amount proved without waiving his right to a review of the court's ruling which excluded him from recovering a greater amount. If the ruling of the trial court should be sustained on appeal, he had judgment for that to which he was admittedly entitled. If the decision of the trial court was erroneous, he was entitled to more. His motion for a directed verdict invited the court to fix the amount to which he was entitled upon the evidence admitted, as a matter of law, upon the theory that there was but one verdict which the jury might lawfully return. The court sustained this view, and it is not asserted here that there was any error in this respect, nor is the appellant complaining of any such error. The error complained of is the ruling excluding evidence which, if legally admissible, would have required a much larger verdict and judgment. This error was not invited by the appellant. The McMahan case, supra, was a divorce case. The defendant, who was the appellant, proposed a finding and decree by written motion. The court sustained the motion and entered the finding and decree as requested. The error sought to be presented arose out of a motion to modify a judgment and decree which had been superseded by the one requested by the appellant. It was held that the error was not available. The substance of the decree submitted is not disclosed, but it must be concluded that the mere preparation of an order book entry embodying a decree consistent with the announced theory and indicated decision of the court would not amount to inviting error. In the Gray case, supra, the appeal was dismissed upon the ground that there was no final judgment, and that it was perfected too late as an appeal from an interlocutory order. The statements relied upon by the appellee are obiter dictum, but it is clear that the court was not considering a question of invited error. It is pointed out that the appellant was granted everything he asked for in his interlocutory petition. The court concluded that where a party is granted everything that he asks in his basic pleading there is no error, invited or uninvited.

The appellant called Dr. Milligan, Superintendent of the Hospital, as a witness, and offered to prove by him that the decedent received treatment in the hospital, and the cost of the treatment. Objection was sustained. Although the objection was not made below, the appellee now contends that the evidence was properly excluded because the witness was a necessary party to the issue or the record, and was therefore not a competent witness as to the matters embraced in the questions because of section 2-1715, Burns' 1933, section 304, Baldwin's 1934. We cannot agree. In a comparable situation in Works et al. v. State ex rel. Holland, Auditor, 1889, 120 Ind. 119, 22 N.E. 127, it was held that the auditor, who was the relator, was not a party in interest within the meaning of the statute in an action to foreclose a school fund mortgage.

A determination of the merits involves a consideration of the statutes governing the care of inmates of insane hospitals. Chapter 67 of the Acts of 1881 (Acts 1881, p. 545) provided that all persons residing in the state and having a legal established residence in one of the counties of the state should be treated and maintained in the insane hospital at the expense of the state. Chapter 217 of the Acts of 1889 (Acts 1889, p. 391) amended and supplemented the former act by providing for the collection of the expense of care and maintenance from the estates of inmates under certain conditions. Chapter 17 of the Acts of 1891 (Acts 1891, p. 21) repealed the supplemental provision of the act of 1889 providing for collection from the estates of inmates, leaving no provision for such collection. In Board of Com'rs of Montgomery County v. Ristine, Adm'r, 1890, 124 Ind. 242, 243, 244, 24 N.E. 990, 991, 8 L.R.A. 461, it was held that the 1881 statute 'looks to the protection of the public from those whose insanity makes them dangerous to the community. It has in it no...