Trivett v. Trivett, 1167A102

• Decision Date: 03 December 1968
• Docket Number: No. 1167A102,No. 2,1167A102,2
• Parties: Dan TRIVETT, Appellant, v. Louis J. TRIVETT, Individually, and Louis J. Trivett, d/b/a Trivett's Gulf Station, Appellee
• Court: Indiana Appellate Court

Page 44

242 N.E.2d 44

143 Ind.App. 643

Dan TRIVETT, Appellant, v. Louis J. TRIVETT, Individually, and Louis J. Trivett, d/b/a

Trivett's Gulf Station, Appellee.

No. 1167A102.

Appellate Court of Indiana, Division No. 2.

Dec. 3, 1968.

William D. Hall, Hall & Pace, Indianapolis, for appellant.

Richard Smith, John T. Hume III, Indianapolis, for appellee; Smith & Jones, Indianapolis, Christian, Waltz, White & Klotz, Noblesville, of counsel.

SMITH, Judge.

This action arose as a result of a two-vehicle collision at the intersection of Morris Street and Brandt Drive, in the City of Indianapolis, Indiana. Appellant was traveling east on Morris Street when struck by appellee's truck which had failed to stop at Morris Street, a preferential street, where Brandt Drive intersects with said Morris Street. Immediately prior to the accident, appellee had been proceeding north on Brandt Drive, but appellee's brakes failed when he attempted to stop at the intersection, and this resulted in the collision in question.

This case was tried by the court and a judgment was entered in favor of appellee. Thereafter, appellant filed a timely motion for new trial, which was overruled. The sole assigned error is the overruling of the motion for a new trial.

We will not belabor this opinion with a verbatim recital of the new trial motion because of its length. Said motion contains five specifications of error which may be summarized as follows: (1) that the plaintiff-appellant was prevented from having a fair trial, which specification contains five allegations of error; (2) that the decision is not sustained by sufficient evidence; (3) that the decision is contrary to law; (4) that in view of certain evidence the verdict is contrary to law; and (5) that plaintiff-appellant has acquired, after termination of the trial proceedings, newly discovered evidence which is material to his cause of action.

Appellant concedes that Specifications 2 and 3 have been waived because of the failure to support the same by written memorandum as required by Rule 1--14B of the Rules of the Supreme Court. See, Anderson v. Irwin (1968), Ind., 234 N.E.2d 276.

An examination of Specification No. 4 of appellant's motion for new trial alleges that the trial court's decision is contrary to law, and contains therein a recital of evidentiary facts and supporting authorities. This alleged error should have been included in Specification No. 3 and has therefore been waived because Specification of Error No. 3 has been waived.

Specification No. 1 of appellant's motion for new trial alleges: 'that the plaintiff-appellant was prevented from having a fair trial, in this:', and states five allegations of error supporting this specification. Appellant, in his brief in opposition to appellee's motion to dismiss or affirm, states that this specification is, in effect, complaining of the exclusion of certain evidence by the trial court. We feel that this assignment should have been made under the eighth statutory ground provided for in Burns' Ind.Stat., § 2--2401 (1946 Repl.) which reads as follows:

'Eighth. Error of law occurring at the trial and excepted to by the party making the application; * * *.'

This court in Wiggins v. Rose (1967), Ind.App., 230 N.E.2d 636, held that a specification of error is insufficient as a cause for a motion for a new trial when it does not set forth any of the correct statutory causes as provided in Burns' Ind.Stat., § 2--2401 (1946 Repl.).

Appellant's Specification No. 5 alleged that 'Since the trial, plaintiff has discovered the following evidence, which is material to his action.', and this specification is followed by several pages continuing a narration of facts alleged to have occurred immediately after the trial. Burns' Ind.Stat., § 2--2401 (1946 Repl.) provides the specific statutory authority for alleging this as cause for a new trial in the seventh clause of said statute, which reads as follows:

'Seventh. Newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.'

The proper procedure requesting a new trial based on newly-discovered evidence is discussed in Flanagan, Indiana Trial & Appellate Practice, § 1820, p. 397, which discussion reads as follows:

'The plaintiff has, since the trial of this cause, discovered new, competent evidence, material to his action, which was unknown to him at the time of the trial, and which he could not with reasonable diligence have discovered and produced at the trial, and which can now be produced if a new trial of this cause is had, as more particularly set forth as follows: (Here set forth fully the newly discovered evidence, showing why it could not with reasonable diligence have been discovered sooner and produced at the trial. Give the names of the witnesses and the facts to which they will testify.), all of which more fully appears in the affidavits of _ _, and of this plaintiff filed herewith and made a part part hereof, and which are as follows: (here set out)'.

However, notwithstanding appellant's failure to follow the prescribed procedure in seeking a new trial because of newly discovered evidence, we are of the opinion...