8 N.E.2d 411

MID-CONTINENT PETROLEUM CORPORATION v. STARNES.

No. 15,471.Court of Appeals of Indiana.
Filed May 25, 1937. Rehearing denied October 15, 1937.

APPEAL — Review — Questions of Fact — Weight and Sufficiency of Evidence. — Where judgment was supported by some competent evidence the Appellate Court would not substitute its judgment on appeal for that of the jury.

From Greene Circuit Court; J. Raymond Powell, Judge.

Action by Frank Starnes against Mid-Continent Petroleum Corporation on account. From a judgment for plaintiff, defendant appealed. Affirmed. By the court in banc.

Robert G. Miller, for appellant.

Regester Regester, for appellee.

CURTIS, J.

This was an action by the appellee against the appellant to recover the balance alleged to be due to the appellee from the appellant for unpaid salary under a contract of employment and also for extra time which the appellee claimed to have worked for the appellant upon nineteen Sundays during the period of the contract. The cause was tried before a jury upon the amended complaint to which a demurrer was filed and overruled followed by an answer in five paragraphs, to the latter four of which there was a reply in general denial, resulting in a verdict in the sum of $121.14 upon which judgment was rendered. The appellant seasonably filed a motion for a new trial which was overruled with an exception and this appeal thereafter prayed and perfected.

The error assigned and relied upon for reversal is the ruling of the court upon the motion for a new trial. The causes in the motion are that the verdict is not sustained by sufficient evidence; is contrary to law and that the amount of the recovery is too large.

Page 191

The paragraphs of answer were first in general denial; second, in payment; third, accord and satisfaction; fourth, that the contract of employment covered all of the appellee’s time and that no charge could be made for the extra time claimed and fifth, that the sum for wages which the appellee claimed and which the appellant withheld from him was withheld by reason of an account that the appellee was alleged to have guaranteed and which could not be collected and was therefore charged against the appellee’s salary.

The jury heard evidence upon the entire transaction and concluded that the contentions of the appellant should not be sustained. There was certainly some competent evidence to sustain the verdict. Under such circumstances this court will not attempt to substitute its judgment for that of the jury and reverse the judgment. No reversible error being shown the judgment is affirmed.

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