Volume 152 — Indiana Appellate Court Reports

1. APPEAL — <italic>Sufficiency of Evidence — Standard of Review.</italic> — In reviewing the sufficiency of the evidence, the Court of Appeals will not weigh the evidence nor resolve questions of credibility of witnesses. It will look only to that evidence and the reasonable inferences therefrom which support the trial courts judgment. If the action of the trial court is sustainable on any theory, it must be affirmed. p. 302. 2. WORDS AND PHRASES — <italic>Arbitrary, Unreasonable and Capricious.</italic> — Arbitrary or capricious action on the part of an administrative board means willful and unreasonable action, without consideration and in disregard of the facts or circumstances of the case; action taken without some basis which would lead a reasonable and honest man to such action. p. 310.<page_number>Page 300</page_number> 3. WORDS AND PHRASES — <italic>Abandonment.</italic> — Abandonment means an absolute relinquishment; a total desertion . . . Intention is the first and paramount object of inquiry. p. 311. 4. DAMAGES — <italic>Appeal.</italic> — Where from the trial court record the damages awarded were at least four times greater than that suffered the award will be reversed. p. 314.

1. MASTER AND SERVANT — <italic>Course of Employment — Lunch Hour.</italic> — An employee is usually not within the scope of his employment during the lunch period. However, the determination of whether an employee is acting within the scope of his employment at the time of an accident is a factual determination to be made in light of the facts and circumstances peculiar to each case. p. 329. 2. MASTER AND SERVANT — <italic>Torts — Scope of Employment.</italic> — Generally, a master is liable for the torts of his servant committed while such servant is acting within the scope of his employment. This long adhered to rule is referred to in Indiana as the doctrine of respondent superior. p. 329. 3. MASTER AND SERVANT — <italic>Existence Determined.</italic> — The general test in determining the existence of a master-servant relationship is the right to direct and control the conduct of the alleged servant at the time the negligent act occurred. In Indiana the phrase "right to control" is used not in a specific sense but in a general sense. It refers only to the right and not the exercise of control over the servant. This is especially true where the work is such as to not demand a great deal of supervision. p. 329. 4. MASTER AND SERVANT — <italic>Indicia of Relationship.</italic> — Among the indicia of a master-servant relationship are the right to discharge, mode of payment, supplying of tools or supplies by the employer, belief by the parties in the existence of a master-servant relationship, control over the means used or result reached, length of employment and the establishing of work boundaries. p. 329. 5. APPEAL — <italic>Weighing Evidence.</italic> — The Court of Appeals will not weigh the evidence. It is only where the evidence is without conflict and will lead to a conclusion contrary to the one reached by the trial court will the decision be reversed. p. 331.<page_number>Page 327</page_number> 6. PROCEDURE — <italic>Overruling Motions — Summary Judgment — Judgment</italic> <italic>on the Evidence.</italic> — Where all evidence and reasonable inferences therefrom support a jury verdict even though none of the facts, standing alone, would, the trial court is correct in overruling a motion for summary judgment, motion for judgment on the evidence at the conclusion of plaintiff's case, and motion for judgment on the evidence at the conclusion of all the evidence. p. 331. 7. EVIDENCE — <italic>Recordings.</italic> — Where recordings offered as evidence are not identified or authentic or correct they are properly excludable by the trial court. p. 336.

1. APPEAL — <italic>Appellate Rule 8.3(A)(6)(7).</italic> — Appellate Rule 8.3(A) (6) (7) requires that appellant's brief contain a brief summary of the argument and that each error assigned in the Motion to Correct Errors shall be set forth specifically and followed by the argument applicable thereto. Any error alleged in the Motion to Correct Errors not treated in the brief as directed by the rule shall be deemed waived. p. 452. 2. APPEAL — <italic>Standard of Review.</italic> — It is fundamental that the Court of Appeals must construe the evidence in a manner most favorable to the sustaining of the trial court's decision. p. 453. 3. APPEAL — <italic>Weight of Evidence — Credibility of Witnesses.</italic> — The weight of the evidence and credibility of the witnesses is for the trial judge to determine and not function of the Court of Appeals. p. 454.