Stone v. Travelers Insurance , 84 Ind. App. 243 ( 1925 )

Action by appellees against appellants for damages to personal property arising out of a collision of an automobile, owned by appellee Bull, and a car alleged to belong to appellant and operated by one Lingenfellow July 6, 1923, on Meridian street in the residential section of Indianapolis.

The verdict of the jury was for appellees, giving them damages in the sum of $150. Upon which, after a remittitur, judgment was rendered against appellant and Lingenfellow jointly, and in favor of appellees jointly. From this judgment, Stone alone appeals.

The error relied upon for reversal is that the court erred in overruling appellant's motion for a new trial, the reasons for which being that: The verdict of the jury is not sustained by sufficient evidence; the verdict of the jury is contrary to law; the damages assessed by the jury are excessive, and that the court erred in giving to the jury, at the request of the plaintiffs, each of instructions numbered three and six.

There is a controversy between appellees and appellant as to the section of the statute under which appellant has attempted to bring the instructions into the record, 1. appellees contending that it is under § 585 Burns 1926, § 560 Burns 1914, while appellant contends that it is under § 586 Burns 1926, § 561 Burns 1914. Conceding, as appellant contends, that it is under § 586 Burns 1926, supra, he has failed to comply with the statute. The brief pertaining to this question shows that "Said request (appellees'), instructions and exceptions (appellant's) were filed and made a part of the record together with all instructions given." It does not appear that the instructions given were signed by the court, when they were filed, or with whom filed. Clause five of Rule 22 of the rules of this court and the Supreme Court expressly provides that when the action of the court in giving or refusing instructions is challenged, all the instructions given must be set out in appellant's brief. It does not appear that this was complied with. In the face of appellees' challenge that the instructions are not in the record, appellant's brief is not sufficient in this regard. We, therefore, can give the alleged errors of the court in giving instructions no consideration.

Appellant contends that there was no evidence that Lingenfellow was acting as his agent and working within the scope of his employment at the time of the accident, without which 2. proof, there could be no recovery against appellant. But it appears by the evidence that the car belonged to appellant, that Lingenfellow was his salesman, and had, at other times, taken the car out for demonstration purposes, and that he was permitted to take cars out of the salesroom for any purpose to the advantage of appellant. We hold that from this evidence, the jury might reasonably infer that Lingenfellow was at the time of the accident acting within the scope of his employment.

Appellant says that there was no evidence of the value of appellee Bull's car before the accident, and after the accident, and that, therefore, there was no evidence by which the 3, 4. damages could be measured. There was, however, evidence that it required an expenditure of ninety-three dollars and fifty-five cents to repair the damaged car, as a result of the collision, and the charges therefor were reasonable, which car had the appearance of a new one, and, after a remittitur reducing the amount of recovery to this amount, judgment was rendered therefor. An itemized statement of the repair bill was read in evidence. It does not appear that there was any objection to this method of proving the damages, and appellant cannot be heard first to present his objection thereto in this court.

Finally, appellant objects that it does not appear what amount, if any, the insurance company paid to appellee Bull, and that, therefore, there was no right of subrogation. It does 5. appear, however, that appellee Bull paid fifty dollars of the damages, which was the amount she was required to pay before the insurance company became liable, and that thereafter the insurance company took charge of the repair of the car, and the negotiations with appellant looking to a settlement of the damages. Appellant must have deemed this sufficient, or must have considered himself not concerned as to the division between appellees of the amount of damages recovered, as he presented no question with reference thereto to the trial court.

We find no reversible error. Affirmed.