Summary
concluding that any error in instructing the jury on issues other than the main issue is harmless
Summary of this case from West v. StateOpinion
No. 27,919.
Filed November 30, 1943.
1. APPEAL — Harmless Error — Instructions — Measure of Damages and Method of Testing Expert Testimony — Finding Against Plaintiff on Issue of Negligence. — Where the jury found against plaintiff on the issues of negligence and contributory negligence, any error in instructing the jury on the measure of damages and in instructions discussing the method of testing expert testimony of medical witnesses which was directed to the question of disability and had nothing to do with the main issues, was harmless. p. 17.
2. APPEAL — Presentation in Lower Court of Grounds of Review — Instructions — Criticism Not Brought to Attention of Trial Court. — Where appellant's only criticism of an instruction given by the court was not brought to the attention of the trial judge as required by Supreme Court rule, his criticism of such instruction cannot be considered on appeal. p. 17.
3. TRIAL — Instructions — Refusal to Give — Matters Covered by Other Instructions Given. — It is not error to refuse to give tendered instruction the subject-matter of which is covered by other instructions given. p. 17.
4. APPEAL — Presentation in Lower Court of Grounds of Review — Instructions — Objections Not Made in Lower Court Not Available on Appeal. — Appellant's contention, that the instructions given as a whole did not fairly and correctly state the law of the case, cannot be considered on appeal where no such objection was made in the trial court in his attempted compliance with the applicable Supreme Court rule. p. 18.
From the Shelby Circuit Court; Harold L. Barger, Judge.
Action by Virendia Adkins against Tony Poparad, doing business as Tony's Coach Lines, for damages for personal injuries allegedly caused by defendant's negligence. From a judgment for defendant, plaintiff appealed. (Transferred from the Appellate Court under § 4-218, Burns' 1933, § 1359 note, Baldwin's 1934.)
Affirmed.
J. Burdette Little, of Indianapolis, and Claude R. Henry, of Shelbyville, for appellant.
Garth B. Melson, Joseph O. Hoffman, and French M. Elrod, all of Indianapolis, for appellee.
Appellant sued for damages for personal injuries alleged to have been caused by the negligence of appellee. A jury found for appellee. Motion for new trial was overruled and error is assigned on the ruling. No errors are specified except upon the giving or refusal of instructions.
Appellant complains of the giving of appellee's instruction 4 and refusal to give her instructions 10, 15, 16 and 20. These all dealt with the measure of damages. Since by the verdict 1-3. the jury determined against appellant the main issues, i.e. negligence and freedom from contributory negligence, any error in instructing on the measure of damages must be treated as harmless. 5 C.J.S. Appeal and Error § 1773 n. 74, citing many cases including State ex rel. Fenstermacher v. McNelis (1920), 72 Ind. App. 231, 242, 122 N.E. 690, 694; Roll v. Dockery (1929), 219 Ala. 374, 122 So. 630, 65 A.L.R. 1473, 1475; Gardner v. Turk (1938), 343 Mo. 899, 909, 123 S.W.2d 158. The same principle applies to alleged error in giving appellee's instruction 9 which discussed the method of testing the weight of expert testimony of medical witnesses all of which evidence, so far as the record discloses, was directed to her disability and had nothing to do with the main issues. Appellant's only criticism of appellee's instruction 7 was not brought to the attention of the trial judge as required by Rule 1-7, 1940 Revision, and therefore may not be considered. Keeshin Motor Express Co. v. Sowers (1943), 221 Ind. 440, 48 N.E.2d 459, 461. The subject-matter of instruction 18 tendered by appellant and refused was covered by her instructions 12 and 14 and the court's instructions 28 and 29 all of which were given.
Finally appellant complains of the instructions given "as a whole," because they did not fairly and correctly state the law of the case. No such objection was made in appellant's 4. attempted compliance with Rule 1-7.
Finding no reversible error the judgment is affirmed.
NOTE. — Reported in 51 N.E.2d 476.