Wilson v. Rollings

• Decision Date: 17 May 1938
• Docket Number: 27072.
• Citation: 14 N.E.2d 905,214 Ind. 155
• Parties: WILSON v. ROLLINGS et al.
• Court: Indiana Supreme Court

14 N.E.2d 905

214 Ind. 155

WILSON v. ROLLINGS et al.

No. 27072.

Supreme Court of Indiana

May 17, 1938

Appeal from Superior Court, Vigo County; Albert R. Owens judge.

Frank Hamilton and William E. Hamilton, both of Terre Haute, for appellant.

Thomas Gallagher, of Terre Haute, for appellees.

SHAKE Judge.

This was an action against the appellee Rollings, as principal and the appellee Maryland Casualty Company, as surety, on a bond given by Rollings as night marshal of the town of West Terre Haute, Ind., pursuant to Burns' Ann.St.1933, § 48-201, section 11350, Baldwin's Ind.St.1934. The complaint alleged that Rollings, while in the discharge of his official duties, intentionally, and without cause justification, or reason, shot the appellant's decedent, causing his death. There were separate answers in general denial, and the trial resulted in a judgment in favor of the appellees (defendants). The only error assigned and presented relates to the overruling of appellant's motion for a new trial. It is asserted that the court erred in directing a verdict for the appellees and that the verdict is not sustained by sufficient evidence and is contrary to law.

At the conclusion of the plaintiff's evidence both parties requested directed verdicts and neither asked to withdraw the request. These motions had the effect of withdrawing the case from the jury and submitting it to the court for determination. Goings v. Davis, 1924, 82 Ind.App. 231, 141 N.E. 473, 143 N.E. 174; Cooper v. Cooper, 1935, 100 Ind.App. 252, 193 N.E. 722. Since the court then gave a peremptory instruction for the defedants, instead of discharging the jury and deciding the case, the verdict of the jury returned pursuant to directions has the effect of a decision by the court. Continental Casualty Co. v. Klinge, 1924, 82 Ind.App. 277, 144 N.E. 246; Connersville Hydraulic Co. v. City of Connersville, 1930, 95 Ind.App. 234, 173 N.E. 641. Under this state of the record the sufficiency of the evidence to sustain the judgment is to be considered as though the cause was tried by the court and a finding made without the intervention of a jury. The rule that only the evidence most favorable to the adverse party will be considered can have no application. There was consequently no error in directing a verdict.

This leaves only the question of whether the verdict of the jury returned pursuant to the trial court's direction, is sustained by sufficient evidence or is contrary to law. It is the theory of the appellant that this is an action for damages for an unlawful killing; that, since the cause was at issue on a general denial, and no special answer of self-defense or son assault demesne was made by appellees, the evidence stands uncontroverted, and she was entitled to a judgment. This contention cannot prevail. The action was on the bond, and sounded in contract; the complaint alleged an intentional or wilful killing, and the appellees made no claim of...