Ver Hulst v. Hoffman

• Decision Date: 15 August 1972
• Docket Number: No. 472A176,472A176
• Citation: 286 N.E.2d 214,153 Ind.App. 64
• Court: Indiana Appellate Court
• Parties: John R. VER HULST, Appellant (Plaintiff Below), v. Albert HOFFMAN, Appellee (Defendant Below).

Page 214

286 N.E.2d 214

153 Ind.App. 64

John R. VER HULST, Appellant (Plaintiff Below), v. Albert HOFFMAN, Appellee (Defendant Below).

No. 472A176.

Court of Appeals of Indiana, Third District.

Aug. 15, 1972.

Rehearing Granted Sept. 13, 1972.

Volkema Post & Pees, Columbus, Ohio, John L. Richert, Winamac, for appellant.

Thomas B. Dumas, Rensselaer, Lester L. Wilson, Winamac, for appellee.

SHARP, Judge.

This is a civil case for assault and battery brought by the Plaintiff-Appellant, John R. Ver Hulst, against the Defendant-Appellee, Albert Hoffman. Among the allegations of the Appellant's complaint was that 'said assault and battery on the person of the Plaintiff by the Defendant was without cause or provocation on the part of the Plaintiff'. This allegation was denied as a part of Appellee's Answer in General Denial.

This case was tried before a jury which returned a verdict for the Appellee on the 13th day of October, 1971. The Appellant filed his Motion to Correct Errors on the 9th day of December, 1971, and later on the 22nd day of December, 1971, filed what purported to be an addendum to Appellant's Motion to Correct Errors. The addendum filed on the 22nd day of December, 1971, related only to the issue of misconduct of Appellee's counsel. Later on the 23rd day of December, 1971, the Appellant filed what was designated as a Supplemental Memorandum in support of Motion to Correct Errors. The trial court overruled the Motion to Correct Errors on the 14th day of January, 1972, and this appeal resulted.

We will attempt to deal with those issues which were raised in the Motion to Correct Errors as filed on December 9, 1971, which have been preserved and argued by the Appellant in his brief in this case.

There was a long history of trouble between the parties which we need not detail here. The altercation here occurred on the evening of March 31, 1963, in the barn at Appellee's residence. Appellant was a tenant in a house on the Appellee's farm at that time. There is a wide variety of testimony on the troubles between the parties which would permit an equally wide variety of inferences. Since the drawing of such factual inferences was for the jury under its instructions and since we must consider all factual inferences in the light most favorable to the Appellee we need not further concern ourselves in any great detail with the questions of fact which the jury resolved in this case.

We must start from the underlying premise that we are here presented with a negative verdict against the party having the burden of proof. A finding against the party on whom rests the burden of proof does not rest on quantum of evidence, and such party cannot challenge the finding on the ground that it is not supported by the evidence, but only on the ground that the evidence entitles him to a finding in his favor as a matter of law. See Industrial Laundry v. Review Board of Indiana Employment Security Division, Ind.App., 258 N.E.2d 160 (1970), and Langford v. Anderson Banking Company, Ind.App., 258 N.E.2d 60 (1970).

Our Supreme Court has stated that it will not substitute its judgment or conclusions for those of the trier of facts; rather, it will consider the evidence which tends to support the judgment of the trial court together with all reasonable and logical inferences which may be drawn therefrom. Trustees of Indiana University v. Williams, 252 Ind. 624, 251 N.E.2d 439 (1969). The same is true for this court. Where the trial court determines the issues adversely to the party having the burden of proof, Appellate tribunals are not free to readjudicate creditibility of winesses or to weigh the evidence; rather, the Supreme Court or this court on appeal may look to the evidence solely for the purpose of determining whether evidence is without conflict and could lead solely to conclusions contrary to that reached by the jury. State Farm Life Insurance Company v. Spidel, 246 Ind. 458, 202 N.E.2d 886 (1964). See also Gary National Bank v. Sabo, Ind.App., 279 N.E.2d 248 (1972).

A reviewing court on appeal will not weigh evidence, although it might have come to a different conclusion had it been the trier of facts. J. I. Case Company v. Sandefur, 245 Ind. 213, 197 N.E.2d 519 (1964).

In Kruss v. Sink & Edwards, Inc., Ind.App., 264 N.E.2d 320, 324 (1970), Judge White, speaking for this court, stated:

'Plaintiff had the burden of proving both liability and damages. Although it seems to be tacitly admitted that she has successfully borne that burden with respect to liability, she has not done so with respect to damages. We cannot here say that the evidence is without conflict and can lead to but one conclusion and that the jury has reached an opposite conclusion.

Such is the background against which we must consider plaintiff-appellant's remaining grounds for new trial, bearing in mind the mandate of Indiana Rules of Procedure, AP. 15(D), that we shall not reverse any judgment 'where it shall appear * * * that the merits of the cause have been fairly tried and determined in the court below."

The Appellant asserts error in overruling Appellant's Motion for Directed Verdict. It has long been held in Indiana that in the context of this case such a contention presents no question on appeal. See National Mutual Insurance Company of Celina, Ohio, v. Bales, 81 Ind.App. 302, 139 N.E. 703 (1923). The principle announced in the Bales case is still the law of Indiana.

The Appellant further asserts error in the refusal of the court to give his tendered instructions numbered 4 and 11. In order to decide this case on the merits we have taken the trouble to examine all of the instructions given and find that Appellant's tendered instructions 9 and 11 were, in substance, covered by court's instructions numbered IV and V. Specifically the court's instruction number IV stated:

'The jury is instructed that in civil cases of assault and battery no provocative acts, conduct, former insults, threats or words, if unaccompanied by an overt act of hostility will justify an assault and battery, no matter how offensive or exasperating or how much they may be calculated to excite or irritate.'

Court's instruction V stated:

'The jury is instructed, under the law of Indiana, none of the acts of the plaintiff, John R. Ver Hulst, as to which there has been evidence adduced, are sufficient to justify an assault and battery upon him.'

The refusal of the trial court to give tendered instructions where the subject matter and essentials of the tendered instructions are contained in and covered by other instructions given by the trial court is not error. See Lamb v. York, 252 Ind. 252, 247 N.E.2d 197 (1969), and St. Joseph Bank and Trust Company v. Putnam, Ind.App., 252 N.E.2d 601 (1970).

Counsel for Appellant asked the Appellee on direct examination whether Appellee regarded himself as a friend of Appellant, whether they got along well, and whether he liked him. On cross-examination Appellee was asked whether he got along well with Appellant and whether they had had words and problems. At that point counsel for Appellant objected to the line of testimony but the trial judge ruled...