*1 ambiguity in favor of “any is to be resolved accused.” rely on the
Both the State and Turner provided “express company”
definition of ed., Dictionary, Rev. 4th Black’s Law respective interpretations.
buttress their Turner,
The trial court determined that driving Freight System, a
while for Yellow freight,
carrier common was included in exception contained IND.CODE 35- It to infer that
47-2-2. reasonable ambiguity
Judge Lockyear found an required by
resolved it in Turner’s favor as to the rule of strict construc-
our adherence Pennington, supra.
tion. While engaged in
accept analysis the articulate
by majority trying to seek the defini- express company, I
tion of believe people
reasonable could differ as to that any ambiguity is to
definition. Since strictly against
resolved the State and Turner,
favor of I cannot conclude that the resolving ambiguity
trial
in Turner’s favor.
Thus, I affirm the trial court’s
decision. CANFIELD, Jr., Appellant
David J.
(Defendant Below), Palmer, May, Arthur A. Robert J. Wen- Betty Melvin H. SANDOCK and J. San Lorber, Walsh, May, dell W. Oberfell & (Plaintiffs Below). dock, Appellees Bend, appellant. South No. 71A03-8809-CV-274. Gonderman, Sr., F. Robert F. Robert Indiana, Gonderman, Jr., Offices, Appeals of Court of Gonderman Law P.C., Bend, appellees. Third District. South Dec. HOFFMAN, Judge. Canfield, appeals
Appellant David J. Jr. favor of Melvin and that as Betty Sandock. The facts indicate automobile-pedestrian acci- a result of an Betty Melvin dent October complaint Sandock filed alleging that Melvin “suf- against Canfield *2 temporary permanent physical adjacent fered an crosswalk and to within injury, temporary permanent pain lawfully using traffic the inter- other suffering, suffering, mental medical ex- section; and penses complaint and economic loss.” The pedes- a Unless otherwise directed alleged Betty also that suffered a loss of signal, pedestrians facing trian-control (1988), consortium. v. Sandock Canfield any green signal, except the when sole Ind.App., (transfer 521 N.E.2d arrow, green signal may pro- turn is a pending). $125,- The awarded Melvin roadway any ceed across within $50,000.00. Betty 000.00 and marked or unmarked crosswalk. Appellant contends that the trial court pre- A violation of this statute creates a modifying a tendered instruc- sumption negligence part on the tion which reads: statute, person violating so unless accident, “At the time of there was in person shows that such violation was force a statute of the state of Indiana justifiable.” excusable or provides part: which appel The trial court eliminated the person suddenly No shall leave a curb lant’s tendered definition of excusable or place safety or other and walk or justifiable from the instructions. It is path run into the of a vehicle which is general rule that it is error for the trial so close as to constitute an immediate court to refuse to define in its instructions hazard. legal phrases technical and in connection 4—1—86(b). I.C. 9— lawsuit, with material issues of the if the
A violation of this statute a creates re- properly requested to do so. presumption negligence buttable on Campbell (1981), City Mishawaka part person violating so Ind.App., 422 N.E.2d 338. person statute or unless the shows that such The jus- correctly violation was or tendered definition excusable by showing by preponder- tifiable a fair stated the sufficient to rebut person ance of the evidence presumption that such did raised viola might what reasonably expected of a safety tion of a motor vehicle statute. Re person ordinary prudence acting under uille v. Bowers 409 N.E.2d similar circumstances who desires to 1154. The violation safety of motor vehicle comply with the law.” represented statutes a material issue.in the The refusing lawsuit. trial court erred in The trial court modified the instruction appellant’s legal use tendered defini as follows: tion accident, “At the time of the there was in force a statute of the State of Indiana Appellant argues that the trial court provides part: erred in the damages, instruction on suddenly No shall leave a part: curb which reads in place safety or other and walk or you “If plaintiffs find for the path run into the of a vehicle which is question liability, you must then deter- so close as to constitute an immediate money mine the amount of which will hazard. fully fairly compensate them for those elements of which were provides Another statute proved by preponderance a of the evi- facing green light: When dence to have resulted negli- from the traffic, including Vehicular vehicles gence respect of the defendant. With left, turning right yield right- shall Sandock, you may the claim of Mr. con- of-way pedes- to other vehicles and to sider: lawfully trians within the intersection 1. The nature and adjacent or an extent of Mr. San- sidewalk at the time exhibited; signal injuries. such dock’s yeld Vehicular injuries traffic shall 2. Whether Mr. Sandock’s are [sic] right-of-way pedestrians lawfully temporary permanent. physical pain suf- Cadiente and mental Dunn v. (reversed other fering experi- which Mr. Sandock 52); grounds physical enced and the and mental suf- (N.D.Ind.1984) fering Grubbs v. United States will suffer the future as *3 536, F.Supp. 581 541. injuries. of his result recognize that it proper These cases expense 4. The of neces- reasonable juries injury’s to consider the care, sary medical and ser- treatment upon enjoyment in loss of of life as a factor vices. calculating damages indepen- and not as an aggravation any previous The of 5. recovery. preceding dent of The basis injury or condition. coupled enjoyment loss of cases of life with upon The injury 6. effect of his damage other elements such and pain as enjoyment and life.” of his suffering permanency injury. Appellant contends that the trial court Dayton Corp. Walther v. Caldwell using injury his “[t]he (1980), 191, 206, 1252, 273 Ind. 402 N.E.2d enjoyment his life” of following 1261 separate mentioned as a separate as a and distinct element in the damages: element of “ damages. instruction plaintiff’s ability inability ‘the to to enjoy pleasures have and life of damages Indiana eases have stated that only those possessed who are of to predicated are not be alone body sound and free use of its members plaintiff earned, which amount could have ” enjoy.’ can injured. if not he had been The was (1982), Datzman v. 436 Antcliff to take into entitled consideration his 121, 114, enjoy- N.E.2d included of “[l]oss suffering sonal and the fact that ment of life’s activities” as a distinct ele- privileges been of most of the damages in ment of enjoyments common to his men of class. cases, no issue on these was raised King’s Indiana Billiard Co. v. Winters trial by using whether the court erred loss (1952), Ind.App. 110, 125, 123 106 N.E.2d enjoyment separate of life as a 719; 713, damage. distinct element Norwalk Truck Line Co. v. Kostka jurisdictions loss Other have decided that (1949), 383, Ind.App. 402, 120 88 N.E.2d sepa- of life should not be a 806; 799, damages, may rate element but be treat- determining ed as a damages factor E. Samuel Pentecost Co. v. Const. bodily Annot. injury. See 34 A.L.R.4th (1942), 47, 64, Ind.App. O’Donnell 112 39 293, (1984). 300 812, 819; (1976) 939, Tracy Cal.App.3d 57 Chicago, etc. R. v.Co. Stierwalt Huff 943, 551, Cal.Rptr. 553, 129 ruled that a 478, Ind.App. 496, 807, 153 N.E. 813. may not en- instruct on loss of Co., Dallas and Mavis Forwarding Inc. joyment of life addition to or distinct 113, 117, 126 Ind.App. v. Liddell general damages. enjoy- from A separate 18, 20, ruled that a consid repeats ment of instruction what expectancy pri- er the life of the individual effectively pain communicated determining or to the accident in the extent suffering instruction. injury, consequent disability Pennsylvania Supreme The held perform pursuits life and that even the victim com- when survives a bodily and suffering mental will pensable injury, pleasures loss of life’s result. compensated could not other than nature, permanency The extent and pain component suffering. Willing- as it affects the Mercy er v. Catholic Medical Center life has as an ele- (1978) 441, 447, been used 482 Pa. 393 A.2d ment instructions for dissenting. STATON, Judge, (1989) 73 N.Y.2d
McDougald v. Garber
N.Y.S.2d
issues
appeal, two instructional
In this
ruled that
of life is not a
first deals
under consideration.
are
deserving
damages
element of
of an instruction
the modification
with
instead,
is,
only a factor
distinct award but
deals with an
court. The second
assessing
be considered
damages. Judge Ratliff has
suffering.
damages
pain
for conscious
treatment of
Judge
Hoffman’s
dissented
W.Va.,
(1982)
Flannery v. United States
however,
instruction,
he has
281, 286,
34 A.L.R.4th
S.E.2d
treat-
Judge Hoffman
concurred with
loss of
of life
reasoned that the
instruction. This
ment of the modification
*4
an element
encompassed
within and is
of
modified in-
only with the
dissent deals
permanency
plaintiffs injury.
the
the
of
Judge
I
Ratliff’s dis-
struction.
concur
slightly
To state the matter in a
different
damage instruc-
which deals with the
sent
manner,
degree
permanent injury
of
the
tion.
ascertaining
injury
is measured
how the
Majority
has
reversed
plaintiff
customary
has
the
of his
grounds that the trial court did not define
person. The loss of
activities as a whole
modify-
“justification” and “excuse” after
customary
constitutes the loss of
activities
ing
tendered instruction.
the Canfield’s
enjoyment of life.
The modification added another statute
case,
present
the trial
the
then left out:
using
injury
erred
effect of his
“[t]he
“by showing by
preponderance
a fair
of
upon
the
of his life”
person
the evidence that such
did what
separate
of dam
as a
and distinct element
might reasonably
expected
be
of a
ages.
The inclusion of the effect
ordinary prudence acting
son of
under
separate
element
of
of
desires to
similar circumstances who
damages opened
possibility
of
the
of an
comply with the law.”
damages.
impermissible duplication of
To
following
the trial court re-inserted the
but
possibility
recovery,
eliminate the
of double
original
language from the
instruction:
couple
injury’s
trial court
should
the
upon enjoyment
pain
effect
of life with
“A
this statute
violation of
creates
suffering
permanency
injury
or
ele
presumption
of
rebuttable
of
jury
ments in the
instructions for
person
violating
of the
so
This
ensure that the
considers
person
or
unless the
shows
statute
injury’s
jus-
that such violation was excusable or
component
pain
suffering
life as a
tifiable.”
permanency
injury
and not as a
left out a stan-
The modified instruction
recovery.
The trial court
basis
proof
presump-
to overcome the
dard
erred
its
tion—not a definition of terms.1 After the
Reversed.
trial court made a modification to his in-
struction,
did not tender another
Canfield
STATON, J.,
opinion.
dissents with
instruction to avoid the error of which he
exists,
If
RATLIFF, C.J.,
complains.
now
error
he invited
concurs as to Part I
II,
offering
byit
not
another instruction with
and dissents as to Part
to which
STATON, J.,
language
to his
opinion.
with
he felt essential
case.
concurs
person
disobeyed
a statute
Where a
1. In Reuille
Bowers
quoted
justify
at
this Court
excuse or
the violation in a civil
Supreme Court case of Davison v.
Indiana
negligence by sustaining the burden
action for
Williams, (1968)
I would affirm Adverse effect from court. long of life recognized has been as a factor to in awarding consider dam RATLIFF, Judge, concurring Chief in ages in this Kings state. Indiana Billiard dissenting part. 110, Co. v. Ind.App. Winters denied; trans. Samuel E. portion concur in that majority opinion Pentecost 'Donnell finding Const. Co. O the trial court erred in amending Ind.App. Canfield’s tendered trans. de deleting Winters, language Appellate therefrom nied. defining ex- . justification cuse or for violation of a stat- stated the was entitled to consider the plaintiff’s ute and claiming personal suffering what a excuse or and the fact justification must show to enjoyments excuse such vio- that he had been lation. particularly applicable This is common to men of his class. The Winters alleged statutory violations Canfield required case held the was to consider privileges com-
the loss of class.
mon to men of his impairment of the jurisdictions,
In most result of a
capacity enjoy life as a separate ele- proper is a
sonal Am.Jur.2d, damages. 22 Dam-
ment of 34 ALR 4th
ages, 272. See also Annot. § say there need not 4. This is not to § injury, injury. Obviously, an
be an without ability enjoy impairment
no But, injury, the effect result. injury upon enjoy-
of that properly may considered
ment of life element complained of advised
The instruction jury they could consider the injury upon enunciat- principle his life. No new was Rather,
ed. the instruction followed well damage in- Believing law.1
established correct, I must dissent.
struction to be
Robert B. SEIFERT and Nationwide Appellants Company,
Insurance (Defendants Below), v. Weisman, Bend, ap- David B. South BLAND, Appellee Leon E. pellant Robert B. Seifert. (Plaintiff Below). Palmer, May, Lor- Robert J. Oberfell & No. 71A03-8903-CV-85. ber, Bend, appellant South Nationwide Ins. Co. Indiana, Appeals Gonderman, Jr., F. F. Robert Robert Third District. Gonderman, Sr., Offices, Gonderman Law Dec. P.C., Bend, appellee. South
HOFFMAN, Judge.
Appellant appeals B. Seifert Robert in favor of Leon Bland. The facts indicate that on October and Bland automobiles driven Seifert denied, although interesting trans. instruc 1. It to note that no issue concerning propriety that the could consider of the in- tions were was raised thereto, plaintiff’s ability inability relating Dayton in both "the have and structions (Caldwell) enjoy pleasures Corp. of life.” or [l]oss Walther v. Caldwell (Antcliff). of life’s activities.” Detzman Antcliff