Wylie v. Myers

• Citation: 238 Ind. 385,150 N.E.2d 887
• Decision Date: 18 June 1958
• Docket Number: No. 29658,29658
• Parties: Clayton WYLIE, Appellant, v. Fred O. MYERS, Appellee.
• Court: Supreme Court of Indiana

Page 887

150 N.E.2d 887

238 Ind. 385

Clayton WYLIE, Appellant, v. Fred O. MYERS, Appellee.

No. 29658.

Supreme Court of Indiana.

June 18, 1958.

Edgar W. Bayliff, of Cook & Cook, Kokomo, for appellant.

Joseph A. Noel, of Jump, Noel & Lacey, Kokomo, for appellee.

ACHOR, Judge.

This is an appeal from the Howard Circuit Court wherein the appellee filed his complaint for personal injuries. The appellee was a pedestrian and the appellant was the operator of the motor vehicle.

The cause was tried before a jury and the jury rendered a verdict against the appellant. Thereafter the appellant filed his motion for a new trial in which numerous alleged errors were assigned. The motion for a new trial was overruled by the court and judgment was rendered for appellee upon the verdict of the jury.

At the outset appellee challenged the sufficiency of the appellant's briefs to present any issue for the reason that in form it does not comply with the requirements of Rule 2-17(e). ¹

At the outset appellant briefly summarizes the issues of law and of fact raised under the following headings: 'Summary of Argument,' 'Issues' and 'Errors and Causes Assigned.' Thereafter appellant restates his position regarding the issues raised by the various assigned errors in the form of 'Propositions' and 'Point,' with each point supported by authority.

In support of his position, appellee cites the cases of Scott v. Pandell, 1954, 124 Ind.App. 474, 476, 118 N.E.2d 372; Kruzick v. Kruzick, 1954, 124 Ind.App. 365, 368, 118 N.E.2d 376, in which cases the Appellate Court categorically held that if propositions, points and authorities, such as were required under the old rule, ² were included in the appellant's brief, they would not be considered. The rule was amended for the reason that under it both appellants and appellees were so bound by its rigid requirements that in many instances neither could most effectively present or meet the basic issues involved. Thus the rule operated to the disadvantage of the parties, the attorney and the court. The amendment was made to enable both parties to give greater consideration to the substance and less to the stereotype form of the argument.

It follows therefore that under the present rule (Rule 2-17(e)), an argument which rigidly adheres to the form of propositions, points and authorities is not favored. However, on the other hand, the rule does not prohibit the use of such form of argument. The only requirement is that '* * * after each cause for a new trial relied upon, there shall be concisely stated the basis of the objection to the ruling complained of, exhibiting clearly the points of fact and of law being presented, and how they are applicable, citing the authorities and statutes relied upon, * * *'. If this directive is in good faith complied with, even though accomplished in part by presenting the argument in the form of propositions, points and authorities, the argument will not be rejected merely because such form of the argument is employed. Our appellate courts are committed to the policy of attempting to decide all cases upon their merits whenever possible, with increasing regard for the substance and diminishing regard for the form and to that end it is the policy to place a liberal construction upon the rules. Flanagan, Wiltrout & Hamilton's Indiana Trial & Appellate Practice, § 2115, ch. 40, p. 4; Miller v. Ortman, 1956, 235 Ind. 641, 650, 136 N.E.2d 17.

Furthermore, in this case we are confronted by the fact that appellee filed several motions for extension of time, by which motions he waived all technical defects in the briefs. Gamble v. Lewis, 1949, 227 Ind. 455, 85 N.E.2d 629.

We recognize the fact that rules regarding the form and substance of the briefs are made for the benefit of both the parties and the court, therefore; although technical defects related to the form, and not to the required substance of the brief, are waived by the parties, such waiver is not binding upon the court. Under such circumstances it is for the court to determine whether an appellant has made a good-faith effort to comply with the rules of the court and whether the arguments relied upon are stated in a reasonably clear and understandable form. In this case we conclude that appellee waived his right to question the particular form of appellant's brief and that, although the argument portion of the brief was inaptly drafted by appellant, he has made a good-faith effort and substantially complied with the rule. For these reasons we will consider appellant's brief upon the merits.

Among the errors assigned in this case was the giving of instruction numbered 5. In order to understand the significance of this instruction a statement of the facts and the answers to certain interrogatories propounded to the jury are necessary. The facts in the case are substantially as follows:

Appellee was struck by appellant's automobile while crossing Washington Street on the 2nd day of November, 1952, in the city of Kokomo, Indiana. Said street runs north and south and is the route of U. S. Highway 31 and 35 through the city. The point of impact was about mid-way between intersecting streets. It was nighttime and cars were approaching from both directions immediately prior to the impact. The exact point of impact is in dispute. However, it was upon the east side of the highway and appellant was driving northward upon that portion of the highway. Appellee looked to the south at the middle of the highway and did not thereafter look again or change the pace of his walk. The area could be classified as a business district, however the highway was posted for 30...