White v. Crow, 30590

• Decision Date: 07 May 1964
• Docket Number: No. 30590,30590
• Parties: Lizzie Lyles WHITE, Estate of John J. White, Deceased, Carl Hardiman, as Administrator of the Estate of John J. White, Deceased, Appellants, v. George L. CROW, Appellee.
• Court: Indiana Supreme Court

Page 222

198 N.E.2d 222

245 Ind. 276

Lizzie Lyles WHITE, Estate of John J. White, Deceased, Carl Hardiman, as Administrator of the Estate of John J. White, Deceased, Appellants, v. George L. CROW, Appellee.

No. 30590.

Supreme Court of Indiana.

May 7, 1964.

Sanford Trippet, Arthur S. Wilson, Princeton, for appellants.

Weyerbacher, Lacey & Rideout, Boonville, McDonald & McDonald, Princeton, for appellee.

ACHOR, Judge.

This case comes to us on petition to transfer from the Appellate Court under Rule 2-23 of this court. See White v. Crow (1963), 192 N.E.2d 478.

This is an action based upon a claim for personal services filed by the appellee against the appellants, which resulted in a verdict of $900.00 for appellee.

The following grounds are here urged as cause for reversal:

One: That the record does not disclose that the claim was formally denied by the administrator, or whether it was ever, in fact, transferred from the estate docket to the trial docket, as prescribed by Acts 1953, ch. 112, § 1410, p. 295, being § 7-810, Burns' 1953 Repl.

Two: That the court erred in overruling appellants' motion to make the claim more specific.

Three: That the court erred in denying the motion for change of judge.

Four: The court erred in permitting the proceedings to be recorded by audio recording, rather than by shorthand reporter, as provided by Acts 1963, ch. 198, § 1, p. 255, being § 4-3501, Burns' 1946 Repl. (1963 Supp.).

Five: The court committed prejudicial and irreparable damage to the appellants' cause by his unwarranted reprimanding of counsel in the presence of the jury.

Six: Counsel for appellee committed prejudicial and irreparable damage to appellants' cause of defense by making improper remarks in his closing argument.

Seven: The amount of the verdict is not sustained by sufficient evidence, in that the amount is excessive.

We will consider these alleged errors in the order above enumerated.

One: Appellant did not raise any issue as to this specification prior to trial and, therefore, that issue is considered waived.

Two: The assignment asserted that the court committed reversible error in its denial of appellants' motion to require the claimant to make his claim more specific.

                Appellee's claim in this case is stated as follows
                   "For services to John J. White and his wife Mrs. Flossie
                White from January 1952 to March 6, 1953, house and yard
                work, nursing care, tending furnace, running errands, one year
                and two months and one week                                     $1119.00
                Nursing care at night March 6, 1953 to April 19th for Mrs
                Flossie White, services performed for John White in
                housekeeping, yard work to July 3, 1954                          2370.00
                                                                                ---------
                                                                                $3489.00"
                

The controlling statute--s 7-802, Burns' 1963 Supp.--provides that the claimant shall state his claim by filing a 'succinct definite statement thereof in the office of the clerk of the court in which the estate is pending; * * *.' As noted in the case of Logan v. Hite, Admr. (1938), 214 Ind. 233, 237, 13 N.E.2d 702, 703:

'* * * The word 'succinct,' as used, means brief, precise, exact. Wolfe v. Wilsey (1891), 2 Ind.App. 549, 28 N.E. 1004. * * *' The word 'definite,' as defined by Webster's Third International Dictionary, means 'Marked by absence of the ambiguous, obscure, doubtful, or tentative and by certain clear statement of expression by means of flat, positive expression.'

We concur in appellants' contention that appellee's claim as filed gives appellants a minimum of information regarding the specific evidence which they could anticipate in support of the claim. We therefore agree that in a better exercise of discretion, the trial court should have required that the claim [when transferred to the trial docket as the basis of a lawsuit] be made more specific.

However, in construing the statute, as applied to the pleading in this case, we are constrained by a long and uniform line of decisions of this and the Appellate Court which have stated that the trial court is granted broad discretion with regard to the degree of particularity with which a complaint or claim against an estate must state the facts on which it is predicated.

The substance of these decisions has been stated in Henry's Probate Law and Practice § 6, pp. 410, 411:

'In preparing a claim for presentation and filing, no particular form is necessary, provided it is sufficiently definite to notify the executor or administrator of its character and amount and succinct enough to bar another action thereon. * * *

'There must be however such a statement of fact as will show a legal liability on the part of the estate to the claimant, and indicate to the estate's representative what he is called upon to meet, with reasonable certainty; and the statement must contain all the facts necessary to show, prima facie, that the estate is lawfully indebted to the claimant. * * *'

The cases hold that, on appeal, the lack of definiteness in a claim will not be considered as reversible error if the claim was sufficient to apprise the administrator of the nature of the demand; to show prima facie legal liability of decedent, and to furnish a bar for another suit based on the claim. Ayres v. Smith (1949), 227 Ind. 82, 84 N.E.2d 185; Logan v. Hite, Admr. (1938), 214 Ind. 233, 13 N.E.2d 702; Hull v. Burress (1950), 120 Ind.App. 507, 92 N.E.2d 213; 13 I.L.E. Executors and Administrators § 137, p. 435.

Furthermore, assuming arguendo that such ruling was erroneous, the error did not constitute reversible error. The form of the claim was a matter within the discretion of the trial court and, on appeal, unless it is shown that the trial court so abused his discretion as to prevent the cause from being fairly tried upon the merits, the judgment will not be stayed or reversed. Acts 1881 (Spec.Sess.), ch. 38, § 659, p. 240, being § 2-3231, Burns' 1946 Repl. First Bank & Tr. Co. etc. Exr. v. Tellson (1954), 124 Ind.App. 478, 118 N.E.2d 496; Marcisz et ux. v. Osborne (1954), 124 Ind.App. 574, 118 N.E.2d 378; Ind. Mut. Cyclone Ins. Co. v. Rinard, Admr. (1936), 102 Ind.App. 546, 200 N.E. 452. In this case there is no showing that appellant was prejudiced by being uncertain or mislead as to the evidence presented at the trial.

Under the circumstances before us, we cannot say that the overruling of the motion to make more specific prevented the cause from being fairly tried upon its merits, so as to require a reversal of the judgment and a new trial of the cause.

Three: The facts in this case, as pertaining to appellants' contention that the court erred in denying their motion for change of judge, are almost identical as those presented in the case of White v. Sloss (1964), Ind., 198 N.E.2d 219, reported immediately preceding this case, in which the same issue was decided adversely to the appellant.

Four: Did the court commit error in not requiring the court reporter to 'take down in shorthand' the proceedings in the trial of the cause as authorized by § 4-3501, supra? The pertinent part of the controlling statute upon this issue is as follows:

'For the purpose of facilitating and expediting the trial of causes, the judge of each circuit, * * * of each and every county of this state shall appoint an official reporter, whose duty it shall be, whenever required by such judge, to be promptly present in said court, and to take down in shorthand the oral evidence given in all causes, including both questions and answers, * * * admission and rejection of evidence and the objections and exceptions thereto, and write out the instructions of the court in jury trials. * * *' § 4-3501, Burns' 1963 Supp., supra.

An examination of the above statute discloses that its purpose is to authorize the judge to appoint a reporter whose duty it is, upon the request of the judge, to take down proceedings orally had in said court and to preserve and record the same for use during and after the trial. Although the statute, supra, provides that the court may request that such proceedings be taken down 'in shorthand,' it does not prohibit the use of stenotype machines or other mechanical devices for the purpose of preserving the record of such proceedings. We judicially know that it is now common practice in many courts of this state to use such devices and we approve the use thereof, providing they are adequate for the purpose. In any event, in this case appellants made no objection to the use of the particular recording equipment employed in the trial court. Therefore, any issue with respect thereto is waived.

Five: Appellants assert that the trial judge was guilty of misconduct which is cause for reversal, in that the judge erroneously and without cause, openly and before the jury, charged appellants' counsel with using unfair tactics in the trial. Appellants assert that conduct of the judge must be accepted as erroneous since, after he made the charge against counsel and a recess was declared by the court, he 'reneged' and required the witness to answer the question which had previously been propounded by counsel and rejected as improper by the judge.

An understanding of the events, regarding which appellants make their complaint, requires some explanation. Appellants have not fully and accurately stated the facts giving rise to this issue. The claim of the appellee was heard concurrently with the claims of three other parties--Marcella Lane [since deceased], Alice Sloss, and one Mildred LaFoon--all of which claims were for personal services performed for Flossie White and John J. White over a period of many months prior to their deaths.

Testimony had previously been produced that Marcella Lane, a niece of Mr. White who was a married woman, who then and for 30 years previously had lived with her husband in Indianapolis, had made numerous trips from her home in...