Tribune-Star Pub. Co. v. Fortwendle Book Reviews

Tribune-Star Pub. Co. v. Fortwendle by In Banc No. 18394 Appellate Court of Indiana Book Summary

ACHOR, Judge. Appellee's petition for rehearing asserts three alleged errors in the opinion as written: (1) That the issue
of appellant's failure to install a safety device upon its elevator was not withdrawn from the jury as grounds of negligence,
as stated; (2) that the court failed to discuss that issue in its opinion, and (3) that the '* * * instructions as * * * given
by the trial court, taken in their entirety, fairly instructed the jury and made harmless the error, if any, in refusing Appellant's
tendered instruction No. 6.' The court, in its instruction No. 2 stated in part: 'I instruct you * * * that the Defendant
in this case was under no duty or obligation to provide the freight elevator in question with a safety device which would
prevent the elevator in question from falling. * * *' It was upon that instruction and the oral argument of counsel that this
court concluded that the issue of appellant's failure to install a safety device had been withdrawn from the jury. However,
it is immaterial to the determination of this case whether or not the effect of the above instruction was to withdraw the
case from the jury, for the reason that appellant was clearly entitled to a new trial because of the refusal of the court
to give appellant's tendered instruction No. 6. Appellee urges a rehearing on the ground that this court failed to give a written opinion upon the safety device issue. Appellee
relies on Article 7, § 5, of the Constitution of the State of Indiana. However, once this court had decided that
reversible error had been committed by the trial court in failing to withdraw paragraph 6(a), from the jury, as requested
by appellant's tendered instruction No. 6, this court was not required by the constitutional provision referred to to discuss
any other issue raised on the appeal. This particular constitutional provision requires, on appeal, a decision with respect
only to such question or questions as are necessary to 'determination of the cause in the Appellate Court.' Indianapolis St.
Ry. Co. v. Taylor, 1907, 39 Ind. App. 592, 596, 80 N.E. 436, 438; Willets v. Ridgway, 1857, 9 Ind. 367. See also 11 Am.Jur.,
Constitutional Law, § 111. As soon as this court determined that, on one ground alone, reversible error had been
committed in this case, the reversal of judgment required by that determination was a determination of this cause in this
court. Thereafter a Discussion of other issues that could not affect the necessity for reversal is not required.

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