81 Ind. App. 614 | Ind. Ct. App. | 1924
This is an action by appellee against appellant to recover damages. The complaint is in two paragraphs. The first is based on the alleged negligence of appellant in striking appellee’s automobile with a truck, both of which, at the time, were being driven on a public highway. The second is the same as the first, except that instead of alleging that said act was negligently and carelessly done, it alleges that it was wilfully and maliciously done. The complaint was answered by a general denial. The cause was submitted to a jury for trial, resulting in a verdict in favor of appellee. The jury also returned its answers to cer
Appellant contends that the court erred in giving instruction No. 1. This instruction is merely a statement of each paragraph of the complaint, and does not purport to inform the jury as to whether or not appellee would be entitled to recover on proof of the allegations thereof. It has been held to be proper to state the allegations of a complaint in an instruction. City of Indianapolis v. Moss, Admr. (1920), 74 Ind. App. 129. The right of a court to do so, does not depend upon whether or not it states a cause of action. If a defendant is confronted with an insufficient complaint, he may elect, if he so chooses, not to demur thereto, but to file an answer and go to trial, and rely on the plaintiff failing to establish a cause of action against him, if the evidence goes no further than the allegations of such complaint. In that event, he has no right to complain, if the court merely states the allegations thereof in an instruction. It follows that appellant’s contention that one of the paragraphs of the complaint in the instant case does not state a cause of action, if true, does not render such instruction erroneous.
Complaint is also made of the action of the court in giving instruction No. 29, which merely gives the forms of verdict, one of which should be returned, depending on whether they found for the plaintiff or defendant. The objection to this instruction is based upon the fact that it does not limit the return of a verdict in favor of the plaintiff on a finding in his favor on the paragraph of the complaint which states a cause of action. There was no error in giving the
The only other contention made relates to the refusal of the court to give appellant’s requested instruction No. 2, which would have directed a verdict, peremptorily, in favor of appellant, on the second paragraph of the complaint. Appellant, in his motion for a new trial, states as one of the reasons therefor, that the court erred in refusing to give instructions requested by him, numbered 1 to 12 both inclusive. This is a joint assignment, and if any one of the instructions was properly refused, the assignment fails. Cleveland, etc., R. Co. v. De Bolt (1894), 10 Ind. App. 174; Tucker v. Eastridge (1912), 51 Ind. App. 632. Said instruction No. 1 would have directed a verdict in favor of appellant, peremptorily, on the first paragraph of the complaint. It requires no argument to show that the giving of such an instruction would have been error, and therefore the assignment fails.
Failing to find any sufficient reason for holding that the court erred in overruling appellant’s motion for a new trial, the judgment is affirmed.