147 N.E. 716 | Ind. Ct. App. | 1925
This is an action for damages for personal injuries alleged to have been sustained by the plaintiff, and this is the second appeal of this case. The opinion in the first appeal is reported in
After the case was remanded, there was an amended complaint and also a supplemental complaint filed. In the supplemental complaint, it was alleged that, after the commencement of the action, the Indiana Bell Telephone Company took over all the property rights and franchises of the United Telephone Company and assumed all debts and liabilities of said United Telephone Company, and it was asked in said supplemental complaint that the Indiana Bell Telephone Company be made a defendant in said action.
There were motions to strike out the amended complaint and also the supplemental complaint, which motions *63 were overruled, to which the defendants excepted, and the defendants each filed demurrers to the amended complaint and also to the supplemental complaint, which demurrers were overruled and to which ruling the defendants excepted.
The defendant, Indiana Bell Telephone Company, filed two answers to the amended complaint and to the supplemental complaint, the first a general denial and the second the statute of limitations. The court sustained a demurrer to the second paragraph of answer, to which ruling the defendant excepted.
There was a trial by jury, and a verdict for $750.
A motion for a new trial was filed by each defendant, separately and severally, for the following reasons: (1) That the damages are excessive; (2) the assessment of the amount of recovery is erroneous, being too large; (3) the verdict of the jury is not sustained by sufficient evidence; (4) the verdict of the jury is contrary to law; (5) the court erred in giving certain instructions and in refusing to give certain instructions tendered. Also that the court erred in sustaining objections to testimony offered by plaintiff and in overruling certain objections of defendants to testimony offered by plaintiff. The motion for a new trial was overruled and each of the defendants excepted.
The court did not err in overruling the motion to strike out the amended complaint. Neither did the court err in overruling the motion to strike out the supplemental complaint. 1. Louisville, etc., R. Co. v. Summers (1892),
Another alleged error discussed in appellant's brief is the sustaining of the objection to the testimony of Theodore Eck, contained in the bill of exceptions, in the *64
former appeal of the case. In the case of Levi v. State
2. (1914),
Appellant insists that the decision in the former appeal is controlling as "the law of the case" on this appeal. We do not think so, as the complaint was amended so as to present a 3. question essentially different from that determined on the former appeal. On the former appeal, this court held that the negligence charged in the complaint consisted of the "manner" in which the employee threw the insulator and, by the amended complaint, the negligence charged was the throwing of the insulator at the time and place and under the circumstances alleged in the amended complaint.
Neither did the court err in overruling defendants' separate and several motion to make the amended complaint more specific, as the defendants were sufficiently informed by the 4. complaint as to the particular negligence relied upon as the basis of the action. Hedges v. Mehring (1921),
There was no error in overruling demurrers to the amended complaint, nor the supplemental complaint. See authorities above cited as to motions to strike them out.
There was no error in sustaining demurrer to second paragraph of answer. Jeffersonville, etc., R. Co. v. Hendricks, supra.
Error is assigned in the court giving certain instructions, and in refusing to give certain others tendered by appellant. We have examined all of the instructions of which complaint is 5. made, also all instructions tendered by appellant, and which were refused by the court. The requested instructions which stated the law correctly were covered by other instructions given. The instructions given by the court, when taken as a whole, fairly state the law of the case.
There was evidence to sustain the verdict, and the court did not err in overruling the motion for a new trial.
Finding no reversible error, the judgment is affirmed.