Taggart v. Keebler

• Decision Date: 08 June 1926
• Docket Number: No. 12101.,12101.
• Citation: 152 N.E. 287
• Parties: TAGGART v. KEEBLER.
• Court: Indiana Appellate Court

152 N.E. 287

TAGGART

v.KEEBLER.

No. 12101.^*

Appellate Court of Indiana, in Banc.

June 8, 1926.

On petition for rehearing. Rehearing denied.

For former opinion, see 151 N. E. 33.

McMAHAN, P. J.

Appellee while testifying as a witness in his own behalf testified that his health up to the time of the accident was fairly good; that while in the Spanish-American War he suffered a sunstroke that bothered him for about 20 years, but that it did not prevent him from working; that after he was mustered out of the army he worked steadily to the time of his injury; that shortly before the accident he made a written application for an increase of his pension under the Act of Congress of June 5, 1920 (41 Stat. 982 [U. S. Comp. St. Ann. Supp. 1923, §§ 8963a, 8985c-8985h]), and that he knew the provisions of that act at the time he made his application.

[1] Just before appellant closed his defense he offered to introduce in evidence the Act of Congress of June 5, 1920, providing for pensions for veterans of the Spanish-American and other wars, to which offer appellee objected. Appellant thereupon called appellee as a witness, and asked him (1) whether he had not made an application under said act for an increase in his pension; (2) whether the application has been granted; (3) whether he was not drawing a pension as a Spanish-American War veteran; (4) whether the amount of his pension was increased; and (5) whether at the time he made the application for the increase of his pension he was familiar with the provisions of the act in question. Proper offers to prove were made when each of these questions was asked, and exceptions saved to the action of the court in sustaining the objection to each of these questions. The court also sustained an objection to the offer to introduce the act of Congress in evidence. Appellant contends the court erred in sustaining the objection to each of said questions and in refusing to allow him to introduce said act of Congress in evidence. The purpose of the offered evidence, as stated by appellant in his brief, was to show that “appellee had obtained a pension under the act, before the happening of the accident, and was therefore found, upon his own representation, to be wholly or partially disabled and unable to earn support by manual labor,” that it was proper to show he was drawing a disability pension under the act referred to, because such pension could only be had by showing disability and impaired earning capacity, and also that it was proper for the purpose of impeaching appellee by showing he had made statements inconsistent with his testimony theretofore given. Appellant in this connection says appellee had testified that he was in “perfect health and in good physical condition prior to the accident and the very opposite afterward,” as a result of the accident. No reference is made to the record where such evidence can be found, and we have been unable to find any such evidence in the record. In appellant's recital of the evidence it appears that appellee was drawing a pension; that he had made an...