Opinion
No. 27,856.
Filed April 1, 1943.
1. APPEAL — Presentation in Lower Court of Grounds of Review — Specific Written Objections to Instructions Not Made — Waiver of Alleged Error. — Where an action was tried after the 1940 revision of the Supreme Court rules, and no attempt was made to comply with Rule 1-7, requiring specific written objections to instructions, alleged error of the trial court in giving instructions was waived. p. 310.
2. APPEAL — Harmless Error — Pleadings — Theory of Action — Rulings Concerning One Paragraph of Complaint Not Harmful. — Where the only difference between plaintiff's first and second paragraph of complaint was that the first charged failure to construct a building in accordance with a contract and the second characterized such failure as negligent and careless, but the instructions disclosed that the cause was tried on the theory of a breach of contract with no suggestion of a tort theory, the appellant could not have been harmed by the refusal of the court to require appellees to make their second paragraph more specific or to elect as to their theory, nor was it harmful error to refuse to strike the second paragraph from the files. p. 310.
3. APPEAL — Determination — Affirmance — Appeal Without Merit — Statutory Damages Awarded. — Where there is not the slightest merit to an appeal, a penalty of 10 per cent is properly assessed against appellant. p. 310.
From the Gibson Circuit Court; A. Dale Eby, Judge.
Action by Charles M. Long and Mary Agnes Long against Bradford Homes, Inc., to recover damages for breach of a building contract. From a judgment for plaintiffs, defendant appealed. (Transferred from the Appellate Court under § 4-218, Burns' 1933, § 1359 note, Baldwin's 1934.)
Affirmed.
William L. Mitchell, of Evansville, and Embree Hall, of Princeton, for appellant.
Newman Salm, of Evansville, for appellees.
The judgment appealed from was entered on a verdict for $570 in favor of appellees upon their complaint in two paragraphs to recover damages for breach of a building contract. A 1-3. motion for new trial was overruled. The only specification thereof relied upon in appellant's propositions and authorities is error in giving certain instructions tendered by appellees. The cause was tried after the 1940 revision of the rules of this court and no attempt was made to comply with Rule 1-7 requiring specific written objections to instructions. These alleged errors therefore were waived. The other assignments relied upon concern rulings with respect to the second paragraph of complaint. The only difference between the first and second paragraph was that the first charged failure to construct the building in accordance with the contract and the second characterized such failure as negligent and careless. The instructions disclose that the cause was tried on the theory of a breach of contract. There is no suggestion therein of a tort theory. The appellant could not have been harmed by the refusal of the court to require appellees to make the second paragraph more specific or to elect as to their theory nor was it harmful error to refuse to strike the second paragraph from the files. Appellants have no proposition questioning the sufficiency of either paragraph of the complaint on demurrer and no question as to the sufficiency of the evidence to sustain the verdict. Appellees suggest the assessment of a penalty, citing Anspach v. Byer (1928), 87 Ind. App. 672, 162 N.E. 414. There is not the slightest merit in the appeal and we think the penalty should be assessed.
The judgment is affirmed with ten (10%) per cent penalty and the cause is remanded for execution in accordance with § 2-3233, Burns' 1933, § 508, Baldwin's 1934.
NOTE. — Reported in 47 N.E.2d 609.