Clemans Truck Lines, Inc. v. Vaughn

213 N.E.2d 470, 139 Ind. App. 404, 1966 Ind. App. LEXIS 485

• Court: Indiana Court of Appeals
• Decided: October 11, 1966
• Docket: 20,348
• Status: Published

Opinions

On Motion to Dismiss

Bierly, J.

— Appellee, Vaughn, commenced this action for damages for personal injuries and property damage resulting from a collision of an automobile and a truck. This cause was tried before a jury, which returned a verdict for appellee in the sum of $90,000.00 and consistent judgment was entered thereon. Appellants filed their motion for new trial, which was subsequently overruled and they have perfected an appeal to this court.

Appellee has filed a motion to dismiss or affirm this appeal based upon certain defects in appellants’ brief which contravene Supreme Court 2-17. If appellee has sustained his. argument, defects in appellant’s brief would result in affirmance of the judgment, but dismissal would not be applicable. In essence, appellee presents four grounds for dismissal or affirmance of the judgment; to-wit:

(1) That appellants’ brief does not accurately and impartially state the record.

(2) That the condensed recital of evidence is not completely stated.

(3) That only two of twenty-four exhibits are set forth in appellants’ brief.

(4) That after each cause for new trial, appellant failed to follow by a concise statement of objections and facts relied upon and citation of authority.

The error assigned for reversal in this court is that the trial court erred in overruling appellants’ motion for new trial. The specifications of error in said motion for new trial intended to be argued are:

“1. Error at law occurring at the trial in that the court erred in giving to the jury, over defendants’ objection, plaintiff’s instructions, Nos. 7, 10 and 11.

“3. Excessive damages.

“4. The verdict is not sustained by sufficient evidence and is contrary to law.

“5. Newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.”

Having carefully considered appellants’ brief and the arguments presented therein, it is apparent that our review of the specifications of error would depend upon an accurate and complete recital of the evidence presented at the trial.

Supreme Court Rule 2-17 provides, in part:

“(d) A concise statement of so much of the record as fully presents every error and objection relied upon, ....

The record must be stated accurately and impartially. If the verdict or finding is assailed as contrary to law for lack of evidence, or as not sustained by sufficient evidence, the statement shall contain a condensed recital of so much of the evidence in narrative form ... as is necessary to present accurately and concisely a full understanding of the questions presented.”

Appellee argues that the alleged errors require an evaluation of the evidence; that the appellants had the burden of providing a condensed recital of the evidence which accurately and impartially set forth the evidence; that the record includes testimony of sixteen (16) witnesses and twenty-four (24) exhibits and two hundred (200) pages of the transcript, while the condensed recital of evidence in appellants’ brief consists of only fourteen (14) pages.

Appellants’ in their brief in opposition to appellee’s motion to dismiss or affirm correctly recognize the rule that the brief of appellants is sufficient if, from the brief alone each Judge can intelligently consider the questions presented on appeal. Appellants assert further that they “have properly condensed and recited the evidence and have done so accurately and impartially and such recital presents accurately a full understanding of the questions presented.” However, we are constrained to view appellants’ contention as untenable. The condensed recital of the evidence contains only .brief conclusions as to what appellants conclude that the testimony of the witnesses proved. Appellants have set forth mere abstract statements of the witnesses unaccompanied by disclosure of other pertinent and often times conflicting testimony of the witnesses.

A detailed recital of all the facts and circumstances as testified to by the various witnesses is completely lacking. The testimony of the physicians as to appellee’s physical condition after the accident and at the present time is not set forth in the appellants’ brief. This of course is extremely pertinent as to the question of excessive damages.

Appellants’ brief fails to set forth in narrative form the facts surrounding the accident in sufficient degree for this court to understand and determine the questions of law presented. In order to reverse this cause a search of record would be necessary and this we are not required to do. Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, § 2677, Comment 8. Gilkison et al. v. Darlington (1952), 123 Ind. App. 28, 106 N. E. 2d 473; Barret v. Stone (1952), 123 Ind. App. 191, 194, 108 N. E. 2d 201; Tice v. Johnson et al. (1965), 137 Ind. App. 338, 208 N. E. 2d 203.

On the 30th day of July, 1965, appellants’ filed a written request for oral argument on appellants’ brief. On August 20, 1965, the appellee filed a petition to dismiss or alternatively to affirm the judgment below.

No oral argument had been granted on appellants’ request, nor was a petition filed by either party for oral argument on said motion to dismiss or affirm. However, due to the deficiencies in the brief of the appellants’ as herein set forth we do not conclude that an oral argument on the merits is necessary.

While we prefer to decide an appeal on its merits, appellants’ brief fails to demonstrate substantial compliance with the requirements of the Supreme Court Rule 2-17.

Judgment affirmed.

Prime, C.J., Smith, P.J., Carson and Mote, J.J., concur.

Wickens, J., dissents with opinion in which Hunter, J., concurs.

Faulconer, J., dissents.