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"State of Indiana, County of Lake-ss:

"I, Charles E. Greenwald, judge of the Lake superior courtroom No. 3, do certify that I gave the foregoing written instructions numbered 1 to 34, inclusive, to the jury, in the cast of First Trust & Savings Bank of Whiting, Indiana, as administrator of the estate of Charles W. McQuaid, deceased v. New York, Chicago & St. Louis Railroad Company, and that said instructions were all of the instructions which I gave to said jury, and the same are now signed, filed, and ordered made a part of the record. Dated this 1st day of March, 1921, at Gary, Indiana.

"Charles E. Greenwald, Judge."

In regard to the instructions given, it must be observed that the court's certificate follows the same wherein he certifies on the same date upon which the instructions were given that "the same are now signed, filed, and ordered made a part of the record."

Section 561, Burns' R. S. 1914, provides that

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in the hands of the court and were put into his record. Did the court make an order against himself that he afterward refused to obey, and so failing must appellant suffer because of the court's refusal to obey his own order? There is only one other person against whom the order could have issued, for the instructions at the time had been presented to the court and were in the court's hands. It might have been issued to the clerk of the court to file the instructions with himself. Whichever construction we put upon the order, it seems to us that the presumption is, in the absence of a showing to the contrary, that the court or clerk did his duty, and the evidence to that effect sustains the presumption, for the respective sets of instructions are in the court's record follow

ing, as to each set, the words, “And are respectively in these words, to wit."

Appellee, to sustain its contention that the record does not affirmatively show that the instructions were filed, cites Indianapolis,

etc., R. Co. v. Ragan, 171 Ind. 569, 86 N. E. 966. That case is very similar to the instant case. The court says therein that

"Aside from the order of the court directing that the instructions given and refused be filed, there is nothing whatever to show that this order was complied with, or that the instructions given and refused were actually filed with the clerk of the lower court. It therefore follows, for the reason stated, that the instructions given and refused are not a part of the record, consequently we are precluded from reviewing any questions raised by appellant relative thereto."

"All instructions requested shall be plainly written and numbered consecutively and signed by the party or his counsel. The court shall indicate, before instructing the jury, by a memorandum in writing at the close of the instructions so requested, the numbers of those given and of those refused, and such memorandum shall be signed by the judge. All instruetions given by the court of its own motion shall * * and be in writing * shall be numbered consecutively and signed by the judge. * All instructions requested, whether given or refused, and all instructions given by the court of its own motion, shall be filed with the clerk of the court at the close of the instruction of the jury. Exceptions to the giving or refusing of instructions may be taken * in writing at the close of the instructions requested, or given by the court of its own motion, in which case the party ex- Under this rule, notwithstanding the plain cepting or his counsel shall enter at the close record above which convinces us that there of such instruction a memorandum, which shall was a good-faith effort on the part of the be dated and signed, setting forth in sub-court and of the parties concerned to make stance that such party excepts to the giving or refusing, as the case may be, of each of the above instructions, designated by its number."

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The section then ends with the provision that such instructions are a part of the record without a bill of exceptions. That there has been a substantial compliance with this section is apparent, unless it may be said that it does not affirmatively appear that the instructions were actually filed with the clerk of the court. It need hardly be said that the court is fully satisfied that the instructions tendered by appellant and refused, and instructions given by the court upon its own motion, are clearly the ones that are set out in the record as above indicated. But appellee says that it does not affirmatively appear that the instructions were filed. It does appear, however, that the instructions were "ordered signed. filed, and made a part of the record without special bill therefor." Against whom was this order

Numerous authorities are cited to sustain this rule, and it has been followed since by both the Supreme and appellate courts.

the instructions a part of the record, and that there is no question but that the instructions in the record are sufficiently identified as the ones that were given or refused by the court, still we must hold that they are not in the record and cannot be considered by the court.

There is no provision in the statute that requires an "order" of the court that instructions shall be signed, filed, or made a part of the record, and such an order, in our opin ion, is wholly unnecessary. The statute makes it the duty of the court to sign instructions at the close of the instruction of the jury and to file them with the clerk. In this case we are of the opinion that the act of the court in signing the instructions and ordering them filed is equivalent to filing them with the clerk. The instructions at this time are necessarily in the hands of the court, and such mandate is against the court, In the face of the presumption referred to

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(141 N.E.)

to us that the rule that requires an affirmative showing in the record is entirely too technical to meet with the approval of either the bench or bar. We submit that the

RANIER et al v. STEPHANOFF.
(No. 11541.)

rule as announced in Indianapolis, etc., R. (Appellate Court of Indiana, Division No. 1,

Dec. 4, 1923.)

Co. v. Ragan, supra, and in other cases in harmony therewith should be disapproved, 1. Appeal and error 171 (3)-Trial court's construction of pleading adhered to on ap. and that the statute be given such a reasonpeal. able interpretation as not to preclude the examination of instructions on their merits when presented by such a record as we have We therefore transfer this cause, together with our opinion as to what the law should be, to the Supreme Court for its

before us.

consideration.

The construction placed on a pleading, and the theory thereof adopted by the trial court, will be adhered to on appeal, where the pleading is susceptible of such construction. 2. Appeal and error 1002-Verdict on contradictory evidence not disturbed on appeal. Even if evidence favorable to the ver

dict is strongly contradicted, and contrary in

Because of the conclusion we have reached, we have not considered other questions pre-ferences equally as reasonable might be drawn

sented.

AMERICAN CREOSOTING CO. v. RED-
DINGTON. (No. 11409.)
(Appellate Court of Indiana, Division No. 2.
Dec. 7, 1923.)

Judgment 335 (1)—Action to review judg-
ment not maintainable where appeal cannot
be taken.

An action to review a judgment cannot be maintained when an appeal cannot be taken from the judgment sought to be reviewed because of lapse of time.

Appeal from Circuit Court, Decatur County; John W. Craig, Judge.

Action by the American Creosoting Com

from the evidence, the verdict will not be disturbed on appeal.

3. Trover and Conversion 9(11)-Demand in formal words unnecessary.

No formal words are required to constitute a demand.

Appeal from Superior Court, Marion County; Solon J. Carter, Judge.

Action by Pete Stephanoff against John F. Ranier and others. Judgment for plaintiff, and defendants appeal. Affirmed,

Richard L. Ewbank and Walker & Hollett, all of Indianapolis, for appellants.

Emsley W. Johnson and Joseph W. Hutchinson, both of Indianapolis, for appellee. BATMAN, J. [1] This is an action by appelpany against William Reddington. Judg-lee against appellants for damages, in which ment for defendant, and plaintiff appeals. the issues formed by the second paragraph Appeal dismissed. of complaint, and an answer thereto in gen

Goddard & Hite. of Greensburg, and Wat-eral denial, were submitted to a jury for son & Esarey. of Indianapolis, for appellant. Chas. L. Lindall, of Greenfield, Donald L. Smith and John H. Kiplinger, both of Rushville. Ed. K. Adams, of Shelbyville, and Thomas E. Davidson, of Greensburg, for appellee.

MCMAHAN, J. On February 16, 1915, appellant filed its complaint to review a judgment rendered against it and in favor of ap pellee. March 21, 1914; a motion for a new trial having been overruled prior to the rendition of the judgment.

From a judgment denying the review appellant appeals. Appellee has filed a motion to dismiss this appeal for the reason that appellant's complaint to review was filed more than 180 days after the original judgment was rendered and at a time when there was no right to an appeal from that judgment. An action to review a judgment cannot be maintained when an appeal cannot be taken from the judgment sought to be reviewed. Talge Mahogany Co. v. Astoria Mahogany Co. (Sup. No. 24404) 141 N. E. 50. Appeal dismissed.

trial, resulting in a verdict and judgment in favor of appellee for $450. Some question has arisen as to the theory of the cause of action, as stated in said paragraph, but the court construed it as an action for the conversion of personal property, and the trial proceeded on that theory. As the paragrapb is susceptible of that construction, we will adhere to it on appeal, under the settled rule in that regard. Blanchard-Hamilton, etc., Co. v. Colvin (1903) 32 Ind. App. 398, 69 N. E. 1032; Flowers v. Poorman (1908) 43 Ind. App. 528, 87 N. E. 1107; McKinley v. Britton (1913) 55 Ind. App. 21, 103 N. E. 349. Appellants filed a motion for a new trial, which was overruled, and this action of the court constitutes the only error assigned on appeal.

[2, 3] Appellants contend that the verdict is not sustained by the evidence, either as to appellee's right of recovery, or as to the amount thereof. We cannot sustain this contention in either of the particulars stated, as the evidence most favorable to appellee, when considered in connection with the reasonable inferences which the court may have drawn from the facts it tends to establish, is

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tions held not misleading as to elements of recovery when considered with others.

In an action by a minor for personal injuries, an instruction that it was alleged in plaintiff's complaint that he had been permanently disabled and suffered pain, preventing him from engaging in manual labor, and causing him to incur expense for medicine, when considered with other instructions, held not misleading in that the jury was given to understand that medical expense and loss of earning power during plaintiff's minority might be recovered.

3. Trial 296(7)-Instruction that burden was on defendant to establish contributory negligence not erroneous when considered with others.

sufficient to sustain, not only every essential | 2. Trial 296(11)-Instruction as to allegaelement of appellee's right to recover as against both of the appellants, but also as to the amount of the damages assessed. Roper v. Cannel City Oil Co. (1918) 68 Ind. App. 637, 121 N. E. 96; Chicago, etc., R. Co. v. Wesolowski (1918) 70 Ind. App. 5, 122 N. E. 781; Chicago, etc., R. Co. v. Lake County, etc., Co. (1917) 186 Ind. 358, 114 N. E. 454 Chicago, etc., R. Co. v. Schipper (1921) 75 Ind. App. 669, 131 N. E. 232. If it be admitted that such favorable evidence is strongly contradicted, and that the facts which it tends to prove are susceptible of inferences, equally as reasonable, in favor of appellants, it would not lead to a different conclusion. under the settled rules relating to the suffi ciency of the evidence, when challenged on appeal. Van Spanje v. Hostettler (1918) 68 Ind. App. 518, 119 N. E. 725; Gray v. Blankenbaker (1918) 68 Ind. App. 558, 121 N. E. 84; Bilskie v. Bilskie (1918) 69 Ind. App. 595, 122 N. E. 436; City of Linton v. Jones (1921) 75 Ind. App. 320, 130 N. E. 541; Klotz V. First Nat. Bank (Ind. App. 1922) 134 N. E. 220. Referring particularly to the question of demand we may add that there is sufficient evidence to warrant a finding that, if one was essential, it was in fact made, since no formal words are required. 18 C. J. 480; Willets v. Ridgway (1857) 9 Ind. 367; Welborn v. Kimmerling (1910) 46 Ind. App.

105. 89 N. E. 517, 91 N. E. 982.

We have carefully considered each of the remaining contentions made by appellants, which relate to the giving of instructions and the exclusion of evidence, and are not convinced that the court committed reversible error in any of its rulings with reference thereto. We will not extend this opinion by a discussion of these several contentions in

detail, as no good purpose would be subserv

ed thereby.

Appellants having failed to show that the court erred in overruling their motion for a new trial, the judgment is affirmed.

MURRAY v. COTTRELL, (No. 11597.) (Appellate Court of Indiana, Division No. 2. Nov. 21, 1923.)

1. Appeal and error 907(4)—In absence of part of testimony court will assume that jury was justified in fixing damages at amount named in verdict.

In absence of testimony of physicians who examined plaintiff as to the nature and extent of his injuries, the court will assume that the testimony of such witnesses, when considered with the testimony of other witnesses, was sufficient to justify jury in fixing plaintiff's damages in the amount named in verdict.

An instruction that the burden was on de

fendant to establish by fair preponderance of evidence that plaintiff was guilty of contributory negligence held not erroneous, when considered with other instructions informing the jury that they should look to all the evidence in determining whether plaintiff was guilty of contributory negligence.

4. Highways 184(4)—Evidence held to warrant an instruction as to unlawful speed while going around an obstructed curve.

In an action for damages arising out of a collision of plaintiff's buggy and defendant's automobile, evidence held sufficient to warrant an instruction as to excessive speed while going around an obstructed curve.

5. Trial 256(13)-Where instruction is not as specific as defendant desires, he should correct it by an offered instruction.

Where an instruction relating to damages for injuries received in a collision is not as specific as defendant desired, he should tender such instruction as he believes should be given on the subject.

6. Damages 216(6)-An instruction fixing

the amount of damages for injuries to a minor held not erroneous.

In an action by minor for injuries, an instruction that in fixing his damages the jury might consider the extent of his injuries, his suffering, and the fact, if true, that injuries were permanent and loss from permanent impairment of physical powers, held not erroneous as authorizing the jury to infer that they might allow plaintiff anything for wages lost before he reached maturity.

7. Highways 184(4)-Requested instruction properly refused as placing too great a burden on plaintiff.

In an action for injuries in collision, a requested instruction that, if plaintiff knew or could have known by the exercise of ordinary care that defendant's automobile was on the left of the center of the road, it was his special duty to use such additional care as reasonable prudence would dictate in view of the increased danger, and that, if the plaintiff observed the approach of the automobile, and could have avoided the accident by the exercise of ordinary care, and failed to do so, he could not recover was properly refused as

(141 N.E.)

throwing a greater burden on plaintiff than under such circumstances as reasonable pruthe law required.

8. Highways 184(4)-No error in refusing instruction omitting element of ordinary care and imposing too great a burden on plaintiff. In an action by a minor for injuries, court did not err in refusing a requested instruction that it was the plaintiff's duty to exercise the ordinary care of a prudent person to prevent the collision, and that, if he had ample time and sufficient space to turn to the right and avoid the collision and failed to do so, he could not recover, which, by omitting the element of ordinary care, threw a greater burden on plaintiff than the law required.

9. Evidence

128-Complaints of pain made by plaintiff to physician held admissible in determining damages.

Complaints of pain made by plaintiff to a physician who examined him are admissible in determining his damages, especially where it does not appear that the examination was made to enable the physician to testify and not for purpose of treatment.

10. Trial 133(6) — Conduct of counsel, though improper, held not reversible error. That counsel asked a witness whether he had read in newspapers that defendant had taken a change of venue from county wherein he lived, to which an objection was sustained, after which the jury was told to disregard the matter, while improper, held not reversible er

ror.

dence would dictate, in view of the increased danger on account of defendant's car being to the left of the center of said road; so in this and there was sufficient room to his right in case, if you find that plaintiff had ample time, said highway to permit him to turn to the right, after observing plaintiff's said automobile approaching him, as aforesaid, if you find he did in fact observe the approach of said automobile, and could thus have avoided the accident and collision by the exercise of ordinary care, and failed so to do, plaintiff cannot recover, and your verdict should be for the de

fendant.

"No. 44. You are instructed, gentlemen of the jury, that the plaintiff had the right to rely on the assumption that defendant, in driving and operating his automobile over the highway in question, would drive said automobile to the

right of the center of said road as it approached plaintiff and in a careful and prudent man

tiff could only rely on that assumption until ner; you are instructed, however, that plainhe discovered, or by the exercise of ordinary care could have discovered, that defendant was driving and operating his said automobile to the left of the center of the road; and you are instructed that if plaintiff saw, or by the exercise of ordinary care could have seen, that defendant's said automobile was approaching him on the left of the center of said road, it was plaintiff's duty to exercise the ordinary care of a reasonably prudent person to prevent the collision and accident in question, and, if you find that plaintiff had ample time, and a sufficient space in said highway to have permitted

Appeal from Superior Court, Vigo County; him to turn to the right and thus avoid said Wm. T. Gleason, Judge.

Action by Ansel Dewey Cottrell against David R. Murray. Judgment for plaintiff, and defendant appeals. Affirmed.

Instruction No. 13, given by the court, and defendant's requested instructions Nos. 42 and 44, refused by the court, were as follows:

collision, and he failed so to do, plaintiff cannot recover, and your verdict must be for the defendant.

Beasley, Douthitt, Crawford & Beasley, of Terre Haute, and James Douglas, of Clinton, for appellant.

Maxwell & McFaddin, of Rockville, McNutt, Wallace, Harris & Randel, of Terre Haute, and H. B. Aikman, of Newport, for appellee.

MCMAHAN, C. J. Appellee recovered judg

"Instruction No. 13. The court instructs you that, if you find that the plaintiff should recover in this action, then it is your duty to fix the amount of his damages as shown by the evidence relevant thereto, if any. In fixing ment against appellant for $1,500 on account the amount of such damages, if any, you may of personal injuries received in a collision take into consideration the extent of his in-between appellee's buggy and an automobile juries, if any, his bodily pain and suffering al-driven by appellant. The only error assignready endured, if any, and that he may endure ed relates to the overruling of appellant's moin the future from such injuries, if any, and tion for a new trial. the fact, if you find it to be a fact, that the injuries suffered by him were and are permanent, his loss from permanent impairment of his physical powers, if any, and after considering such elements, you should give the plaintiff such a sum as will compensate him for the injuries received, if any, not exceeding the sum of $10,000, the amount asked for by the plaintiff in his complaint.

[1] No question is raised as to the suffi

ciency of the evidence to sustain the verdict. Appellant however contends that the damages assessed by the jury are excessive. In this connection appellant insists appellee was not materially injured or damaged that he is malingering. Appellee testified that his left leg was cut and bruised; that he had scratch

"No. 42: I instruct you, gentlemen of the jury, that if plaintiff knew, or by the exercise es and bruises on his right leg and body; of ordinary care could have known, that de- that he never suffered with pain in his legs fendant's automobile as it approached plain- before the accident; that since the accitiff, was being operated to the left of the dent he has suffered all the time; that he cancenter of said road, there was a special duty not rest at night, and has pain in the left on plaintiff's part to use such additional care leg when he tries to work; that he cannot

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

do a day's work because of the pain; that, ing power authorized a recovery for such exit was three or four weeks after the acci-penses and loss during the period of appeldent before the cut place healed. Other wit-lee's minority. nesses, including appellee's father and moth

[3] In instruction No. 9 the court told the

er, testified concerning the effect of the inju-jury that upon the issue of contributory negries. Six physicians, some of whom were ap-ligence the burden was on appellant to espointed by the court to examine appellee, tablish by a fair preponderance of all the testified as to the nature and extent of the evidence in the case that appellee was guilty injuries. None of the testimony of these phy- of contributory negligence, and that, unless sicians is set out in appellant's statement of appellant had done this, its finding should be the evidence. in favor of appellee upon that issue. AppelWithout entering into a discussion of lant insists that the court erred in giving this the evidence relative to the extent of appel-instruction, and in support of this contention lee's injuries, we will, in the absence of the cites City of Indianapolis v. Cauley, 164 Ind. testimony of the physicians who examined 304, 73 N. E. 691; Indianapolis St. Ry. Co. v, appellee as to the nature and extent of such Taylor, 158 Ind. 274, 63 N. E. 456, and other injuries, assume that the testimony of such similar cases. witnesses, when considered with the testimony of the other witnesses, was sufficient to justify the jury in fixing appellee's damages at the amount named in the verdict.

Appellant complains of instruction No. 1, given at the request of appellee, wherein the substance of the complaint was set out. The court in this instruction told the jury that it was alleged in the complaint that appellee had been permanently disabled, and still suffered severe pain, preventing him from engaging in manual labor, and causing him to incur an expense of $100 for medicine.

[2] Appellee was a minor when this action was commenced, and appellant contends that there was no evidence that he had been emancipated; that his earnings belonged to his father, and that it was error for the court to refer to the allegation relative to the disability of appellee to engage in manual labor. At the request of appellant the court instructed the jury that appellee was not entitled to recover anything because of money expended for medicine. The court, in another instruction relating to the measure of damages, correctly informed the jury that in fixing the amount of such damages it could take into consideration the extent of his injuries, the bodily pain and suffering theretofore endured, if any, and such pain, if any, that he might thereafter suffer, and if the jury found that his injuries were permanent, it might also consider his loss, if any, because of the permanent impairment of his physical powers.

This instruction, when considered in connection with the other instructions given, is not subject to the objection urged by appellant. The jury in a number of instructions were clearly informed that, in determining whether appellee was guilty of contributory negligence, it should look to the whole of the evidence, and if it found from all the evidence that appellee had been guilty of contributory negligence he could not recover. In fact, the instruction now under consideration clearly told the jury that in passing upon the question all the evidence in the case should be considered. On the authority of New Castle Bridge Co. v. Doty, 168 Ind. 259, 79 N. E. 485, we hold there was no error in giving this instruction. See, also, Town of Winamac v. Stout, 165 Ind. 365, 75 N. E. 158, 651.

[4] The court, after having called the atten. tion of the jury to the statute which provides that no person shall drive or operate a motor vehicle upon a public highway at a speed greater than is reasonable or prudent, having regard to the traffic and the use of the way, or so as to endanger the life or limb or injure the property of any person, instructed the jury that the statute also provided that, if the rate of speed of a motor vehicle driven on a public highway in going around a corner or curve in the highway, where the operator's view of the road traffic is obstructed, exceeds six miles an hour, such rate of speed shall be prima facie evidence that the person operating such vehicle was driving at a rate of speed greater than is reasonable, having regard to the traffic and use of the road.

No instruction was given the jury in relation to appellee's right to recover for loss of time during his minority. Appellee was over Appellant contends that (1) there was no 21 years of age at the time of the trial. If evidence that he was driving his automobile appellant had tendered an instruction to the in excess of six miles an hour in going around effect that appellee could not recover any- a corner or curve; (2) there was no evidence thing because of loss of time or earning ca- tending to show that the rate of speed when pacity during his minority in the absence of he was going around the corner or curve was any evidence that he had been emancipated, the proximate cause of the accident; and (3) the court doubtless would have given the that the complaint did not present any issame. We do not think that appellant's con- sue as to the rate of the speed of his autotention that the instruction as given was mobile when going around a corner or curve. misleading in that the jury was thereby giv- We cannot agree with appellant in these en to understand that the allegation in ref- contentions. The collision occurred between

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