Ward Bros. Co. v. Zimmerman
| Decision Date | 26 February 1932 |
| Docket Number | No. 14192.,14192. |
| Citation | 180 N.E. 25,94 Ind.App. 130 |
| Parties | WARD BROS. CO., Inc. v. ZIMMERMAN. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Stark Circuit Court; Wm. Pentecost, Judge.
Action by Clara R. Zimmerman, administratrix of the estate of Walter Zimmerman, deceased, against Ward Bros. Company, Inc. Judgment for plaintiff, and defendant appeals.
Reversed, with instructions.Bomberger, Peters & Morthland, of Hammond, Chas. H. Peters, of Knox, and Oscar Haney, of Hammond, for appellant.
Darrow, Rowley & Shields, Arthur L. Roule, and Osborn & Osborn, all of La Porte, for appellee.
Appellee, Clara R. Zimmerman, as administratrix of the estate of Walter Zimmerman, her deceased husband, brought this action against the Gary Baking Company and Ward Bros. Company, Inc., to recover damages for the death of said decedent alleged to be due to defendants' negligence. Trial by jury resulted in a verdict and judgment for plaintiff in the sum of $10,000 against the Ward Bros. Company, Inc.
This is the second appeal in this case. See Ward Bros. Co., Inc., v. Zimmerman, Adm'x, (1928) 89 Ind. App. 353, 166 N. E. 545. Trial in the instant case was had upon the same complaint as in the former case, the substance of which is set out in the former opinion. The case was dismissed as to the Gary Baking Company before the jury retired, and the verdict was against the Ward Bros. Company, Inc., whose motion for a new trial being overruled, appeals to this court and relies upon the following errors for a reversal of this judgment: (1) The court's refusal to give appellant's requested instruction directing a verdict for defendant; (2) the giving of plaintiff's instructions Nos. 1, 2, 3, 6, 9, and 10; (3) the court's overruling appellant's several motions to set aside the submission because of misconduct of counsel; (4) the court's permitting plaintiff to testify that she had no property; (5), (6), and (7), the verdict is not sustained by sufficient evidence, is contrary to law, and is excessive.
An examination of the evidence most favorable to appellee discloses that Ward Bros. Company, Inc., and the Gary Baking Company each were located at the corner of Tenth street and Roosevelt street (whether the two companies were located in the same building or on different corners at the crossing of the two streets is not made clear by the evidence; that, in the year 1925, Cadwell, the driver of the truck at the time of the accident, had been seen loading at Ward Bros. Company, Inc.; that Cadwell, on the morning of the accident, left the corner of Tenth street and Roosevelt street to make his bread route to La Porte (but there is no evidence that he loaded his bread at Ward Bros. Company, Inc., on the morning of the accident); that on July 28, 1924, six months before the accident, appellant's principal place of business was at Tenth and Roosevelt streets, and, on that day, appellant operated a bakery formerly operated by Gary Baking Company (whether the bakery referred to was also located at Tenth and Roosevelt streets and whether appellant was operating it on the date of the accident is not shown); that on July 22, 1926, seven months after the accident, the Gary Baking Company also had its place of business at Tenth and Roosevelt streets, and on that day said Gary Baking Company was not operating, but its stock was outstanding to hold its charter. (Whether the Gary Baking Company was or was not operating seven months before, at the time of the accident, is not disclosed, but the evidence does show that the Gary Baking Company was in existence and had an office at Tenth street and Roosevelt street on July 22, 1926, and after the accident.) A number of witnesses testified that there was a name on the truck that was in the accident. Charles Harts said the name was “Ward's Bread”; Henry Spier said it was “Ward's Bakery” or “Ward's” something or “Ward's Baking Company”; Mike Moyer said the words were ...
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Ward Brothers Company, Incorporated v. Zimmerman
... ... the operators of the truck in question at the time of the ... accident. To hold appellant liable under the evidence herein, ... resort must be had to inferences. There was no evidence to ... the effect that appellant's name "Ward Bros. Co., ... Inc.," was on the truck, nor was there any evidence that ... any of the words or group of words that the various witnesses ... testified were on the truck were used as a trade name by ... appellant, or that any of such words were used by appellant ... to designate its product, or ... ...