*1 38 613, 213 (1974), Wis.2d
partment.
v. Mabra
61
Wisconsin
560,
(1971),
91
Whiteley
401 U.S.
545;
v. Warden
N.W.2d
(1967),
306;
State
1031,
Manson v.
L.Ed.2d
S.Ct.
(Emphasis added)
v. State
53,
Francis
801.”
229 N.E.2d
371,
Judgment further and remanded reversed opinion. with this not inconsistent JJ., Lybrook, concur. Lowdermilk Betty Easley, Ann Harmless Howard William Maytag Laundry Coin Harmless d/b/a Mary Aletha Williams. Rehearing February January denied 1-374A36. Filed
[No. September 29, 1975.] denied 1975. Transfer *2 Indianapolis, Price, Ricos, of Price, Frank J. and Wade appellants. for Hume, Jr., Hume, Lewis, III, B. Smith
John T. John T. Seth Indianapolis, counsel, Hardin, of of of Jones, and and Lewis appellee. counsel, Danville, defendants-appel appeal by This is P.J. Robertson, granting (Easley Harmless) of a new lants from the and plaintiff-appellee on a motion to correct errors filed (Williams). the trial
The whether sole issue before this court no trial. We hold there is in erred new error.1 as follows: this suit arose are facts from which Jefferson on corner of the northeast
Williams lived Betty Broadway Harmless Danville, Howard and Indiana. operated side of east Jefferson a laundromat the ownedand adjacent home. Harmless had to Williams’ Street north of and frontage parking the entire across concrete area constructed a extending edge this Between the sidewalk. of his lot the asphalt apron (5) Jefferson, feet wide was a five concrete and eliminating sidewalk in that area. installed, usual January Easley morning 12, 1972, drove his theOn parking laundromat, up pick-up front truck carrying parking wholly Williams, area. concrete within appeal problems were resolved in favor 1. Procedural Easley App., defendants-appellants et al Williams pro- purse using walking cane, her house and left laun- the Harmless’ along north the sidewalk toward ceeded Street, cross Marion She to walk north dromat. intended place Jefferson, continue to to the over west side of work. truck, approached observed pick-up
As Williams she recall at She could not driver was truck. lights running on. was if the trial whether the truck reportedly within asphalt apron, She continued across either imaginary abutted extension the sidewalk truck, Easley apron. side of backed his and Williams leg. struck, suffering injury to her against Easley brought Harmless. Williams suit both gave instructing jury, judge instruc- several contributory negligence and relating tions to the defense of *3 ways doctrine. an instruction the choice on of defend- general A in favor was rendered of all verdict her correct errors. The ants. Williams filed to motion granted The judge trial. motion a new sustained the following granting specified reasons for the motion: order ways (1) instructing jury choice of Error on applicable not the facts since it was to of case. doctrine contributory giving (2) on Error several instructions repetitious emphasized negligence over that which were issue.
Easley that trial should not Harmless contend granted was trial in have been because no error at committed argue giving They that of instructions. the choice of ways applicable was the facts instruction of case and contributory negligence instructions that the several argues Additionally, repetitious. Harmless that the court not determining alleged that errors affected the ver- erred finding supported him since evidence concerned no dict as a part. on his of grant reviewing trial court new the decision a a any
trial, if must affirm of the reasons we the trial stated
41 proper. Landers v. judge taking that action are (1969), Ind. 145 and Door Co. McComb Window Bailey (1963), 135 358; 38, Kain App. 248 N.E.2d v. 657, App. N.E.2d 486. Ind. 192 judge trial, reason for a
As first new ways by giving error was committed stated that choice applicable instruction because doctrine the facts of the case. given. improperly agree that instruction was We proper there is must sufficient instruction be Before an support instruction. in the record App. Ind. N.E. (1973), 293 Moore v. Funk 155 2d 534. ways applicable only where doctrine
The choice of paths path chosen alternative to choose and there are great danger apparent person that a so involves way ordinary not have prudence would used City Mitchell v. Steven the circumstances. under 58; Wyler Lilly N.E.2d (1964), son 136 Ind. App. 91, Varnish Co. In the first presents such situation. present no case that Williams was even aware
place, it is doubtful her ways actually She was on accustomed existed. choice of walking along public sidewalk or extension way to work elderly lady walking Also, was an with she of the sidewalk. would availability a route which a cane. The assistance way, many around the front require feet out walk her to very *4 process up step a truck, stepping and down of a questionable. does routes in itself
Moreover, the existence of alternate path applicable. The ways of doctrine choice not make danger great apparent involve a so must chosen ordinary person chosen that would not have that an case, of this is clear that way. the facts From ways ruling that choice judge correct was trial applicable. was doctrine
42 com- judge error had
Secondly, trial ruled that been negli- contributory by giving several instructions on mitted emphasize repetitious over gence and tended to particular issue. that N.E. Perry
As stated in Goss 923: 2d occur, “Repetition some in instructions is bound to extent per It is where not make them se erroneous. but repetition does overly emphatically so so often and that it occurs jury phase law particular some impresses the with to be or fact it can be such are said instructions at
condemned.” all, six instructions were defendants tendered concerning negligence. given by contributory Our reading they fact were in of those instructions reveals repeating, although repetitious in somewhat different each language, negligence. those contributory the elements of When light read in instructions as whole instructions are a unduly negligence agree contributory we that the issue of was giving was emphasized such that those instructions error.
Finally, that the trial Harmless asserts new should not against supported granted find- them since no evidence been ing negligence part. However, on their from the record say as matter this case we are unable that no law presented which was to show tended judge granting part The trial was of Harmless. correct appellants. respect with both trial
Judgment affirmed. concur; J., Staton, J.,
Lybrook, opinion. dissents with
Dissenting Opinion properly I dissent. The P.J. instructed Staton, weighed rendering the evidence before its verdict. reason clearly court’s trial new reflects reweighing ways” the “choice of A “more evidence. supported conclusion is not route” the evidence. devious
43 drafting repetition necessary unavoidable when Some and together, instructions are read instructions. all the When they overemphasize duty not “. . . owed do tend to judgment granting plaintiff.” I would reverse the trial court’s judg- court to trial instruct reinstate its and upon jury’s verdict. ment
I. “Devious”—Reweighing the Evidence The trial court’s reason for a new trial reflects re-a weighing ways” of the “choice of evidence: . . erred “. Court in the of this cause . [T]he . . ways appli-
the reason that the choice of
doctrine was not
plaintiff
cable in that all
on
was
indicated
walkway
which was
a sidewalk
an extension of two
designated
required
and that she
sidewalks
was
to choose
way
public right-of-way
which was
between
route which would have been
more devious
defendant
property,
incorrectly
instruction
Harmless’
said
jury upon the law of the
. . .”
advised the
case.
clearly
A
indicates
of the evidence
Instruction
review
properly
upon
the law. Harmless
Four
advised
was
jury. Bundy
have Instruction Four
to the
entitled to
read
v.
Indianapolis Dispatch,
(1973),
App.
Inc.
158 Ind.
Ambulance
99,
791;
(1973),
App.
Barnes DeVille
Ind.
N.E.2d
155
301
v.
387,
54;
545,
(1973),
App.
Moore
v. Funk
155
Ind.
reaching
conclusion,
its “devious”
293 N.E.2d
reweighed
omitted
uncontradicted evidence and
trial court
evidence relevant
to Instruction Four. Holcomb other
46,
Miller
Mrs. walking place employment and from her at cane when day accident, January the courthouse. morning, o’clock in the “not too
shortly seven was after looked out of kitchen window when Mrs. Williams dark” pull truck into laundromat. Her home pickup saw a corner of Jefferson Broad- the northeast located on was going Danville, post to the office Indiana. She way street across from her home and street was across the her: ways were available Three the laundromat. *6 completely (1) at the corner have crossed the street she could laundromat; (2) the side- avoiding have she could used immediately which would in front of the laundromat walk of be- of the truck instead placed in front her front have opposite it; have taken the route on (3) or could she hind post was office which behind street side ways avail- three she struck. These where was truck clearly sub- exhibited the evidence are able any jury. indicate that evidence does not mitted to court. the trial “devious” indicated of these routes were always not the same that she did take testified Williams Mrs. post to the office: route indicated,
“Q. Now, you Williams, part your Mrs. duties ah, work, you’d go post at have to the office and get mail ? That’s correct. “A. thing
“Q. daily this a ? Was Oh, yes.
“A. job “Q. part your ? This was “A. Yes.
“Q. you you always And I think testified that walked straight north on sidewalk side east (interposing) No. “A. “Q. Beg pardon? always. Not
“A. “Q. Well, you take a to the post would route office? different Well, very “A. not different.
“Q. Well, what (Interposing) I “A. Sometimes crossed over some- times I didn’t. “Q. mean You crossed over what? I over to the other side of the
“A. crossed street. you “Q. Well, where cross ? would my front, my “A. From house. Not the mean I side house. you “Q. just straight You walked mean across street of— “A. Sometimes.
Well, you times? do other how would Well, up explained I to the like I walked corner snowy might, ah, morning, I if it the side- had been sanded walks weren’t cleared and there was a hill off might walk, place I even out walk there.
¿o right sometimes walk Jefferson You would across
there? pattern. Yes, any > I I set sometimes did. didn’t did You not?
Why no.” support s “devious con- The evidence does declaring trial. Holcomb reason for clusion and Miller, supra.
II. *7 Overemphasize” “To granted The new trial for the additional rea- trial court son that it: referring the gave applying repeated “. . doctrine instructions . contributory that said doctrine overemphasize duty
was so stressed that owed it tended to the by plaintiff. . . .” reason, light issues, instruc- I the find evidence given, review conclusion. A careful tions to be incredible the issues were ade- indicates me the instructions to given Only which quately instructions were four covered. instructions duty Five by plaintiff. the related to the owed duty given by owed de- were the trial court on which had been these instructions fendants. In addition to gave its parties, the trial court two of own submitted appear be well duty instructions to These instructions. upon predicated emphasis. If error can be balanced expressed theory reference slight or an to another reference litigation theory, would duty under the same to an additional system inoperable. Easley jury interminable and become theory upon Moore his of the case. instructions entitled to supra. Funk, express a by Easley instructions submitted Each of contributory explains or defines duty and the fifth different as instructions negligence. “duty by plaintiff” owed follows: duty exercise general to Easley’s Two is a
(a) Instruction follows: as ordinary It reads instruction. care Mary plaintiff, are it was “You instructed ordinary duty care exercise Aletha to Williams’ chargeable injury. protect is herself from She to might danger knowledge she such law with ordinary appreciate by the exercise of know and ordinary use includes the care care. The exercise of order power observation in of one’s faculties or dangers which are comprehend the to learn may be naturally which the situation and instant by the care use the exercise of such discovered one’s faculties.” you
(b) Easley’s instructs Instruction Five in- care to avoid reasonable duty exercise have a though may you yourself jury to even right-of-way. It reads as follows: fact, you fact, be from a if find “The mere fair case, in this preponderance of right-of-way over pedestrian had the plaintiff re- occurred does accident vehicle when right-of- having such plaintiff pedestrian lieve the way duty care to exercise reasonable injuries person.” avoid neg- contributory Easley’s Thirteen defines (c) Instruction ligence It follows : reads as as a defense. defense, negligence, is a “Contributory *8 injured person negligence part the which the of damages ; words, partly her in other causes causes or something some or omitted to do plaintiff if the did reasonably person thing prudent a careful and that done, do not have or would omitted would have under particular case, of the circumstances proximately omission that act or contributed and damages claims, contributory this is which she to the recovery.” negligence the her under law bars duty Easley’s keep is rea- Fourteen a (d) Instruction instruction. It reads as lookout follows: sonable duty keep the reasonable pedestrian “A has circumstances, the or such a lookout under lookout ordinarily prudent person main- an would have under same tained the or similar circumstances.” (e) Easley’s jury that Instruction advises Seventeen contributory negligence is issue fixes the at burden proof. of It as follows : reads negligence question part contributory “The on the plain- plaintiff is issue this case. If of the in negligence guilty proximately that con-
tiff was tributed to injury, recover plaintiff cannot then negli- may though even have been the defendant gent. proving by pre- “The defendant has burden of guilty ponderance of such plaintiff that of the evidence negligence.” Instruction is different de- Seventeen from the instruction fining contributory j ury in instructs the if negligent, plaintiff may even is defendant be barred neg- recovery contributorily if plaintiff finds the ligent, explains this instruction further the burden of proof Easley’s negligence. theory contributory overemphasized duty
I do not think trial court plaintiff given owed when five instructions these j ury duty on the owed the defendants:
“INSTRUCTION NO. operator have “The he of a motor vehicle is to see bound what if sur- could seen he had exercised due care under the rounding circumstance. you preponderance exercise of Reasonable care should “If find from a the evidence that Wil- Easley, liam moving Mary see Aletha his vehicle Williams before [sic] laundrymat you parking from the lot of the and if [sic] preponderance from a of the further William find Easley Mary Aletha without backed into Williams you finding seeing her, then are that William warranted negligent.” Easley was 2NO.
“INSTRUCTION place occurrence instructed at the time and “YOU are question there was in full force effect statute provided which : State Indiana stanking stopped, person shall start a ‘No vehicle [sic], parked until be unless and such movement can safety.’ reasonable made with *9 you preponderance that of the evidence William “If find a Easley statute provisions of this violated justification, such conduct excuse or violation was without Easley.” negligence part of William on the would constitute 3No.
“INSTRUCTION place of the occurrence the time and “You are instructed at effect statute question a there was in full force and part: provided in Indiana which State of to Every care ‘. . vehicle shall exercise due . driver of a roadway and colliding upon any pedestrian with a avoid shall necessary give warning by sounding when horn a any observing proper precaution upon exercise shall highway.’ upon incapacitated person . . . a roadway portion ‘that of a is as “In this statute defined designed vehic- highway improved, ordinarily used for highway is ‘the entire width ular between tained traffic.’ defined every publicly main- boundary way lines pub- any part open thereof is the use of the to when purposes traffic. lic vehicle you preponderance “If that Wil- find from a evidence Easley provisions this statute and that liam violated the justification, excuse such con- violation was without or part duct would on of William constitute Easley.” 5NO. “INSTRUCTION right exercising ordinary to person is has a “A care who presume Therefore, dence that in she form his duty perform under law. that others will their the the evi- you preponderance if a find from Mary Williams, place Aletha at time and safety exercising question ordinary for her care own would per- right Easley a to had assume William rigfit further under and she had duties the law upon until rely assumption received and act she contrary.” notice to the 9NO. “INSTRUCTION occupier abutting “An creates landowner who an unsafe duty exercise sidewalk area under a condition reasonable care safeguard pedestrains injury from [sic] from this unsafe condition. you preponderance “If Howard sidewalk from find along the Harmless condition created unsafe extending driveway instruct area across his then I you duty that Howard Harmless was under exercise injury pedestrians reasonable care to avoid you If preponderance further unsafe from a condition. find question place that at the time of the evidence Howard Harmless failed to exercise such reasonable care *10 finding you Haward then are warranted [sic] negligent.” Harmless was given by duty little instructions add The two way emphasis. instructions read fol- in the of These two : lows “Negligence, fendants, part plaintiff either on of or the de- and failure to reasonable careful is the do what a person
prudent under same or like would done thing doing circumstances, able careful of some reason- or person under prudent and not have done would circumstances; neg- [sic], woulds the same or like ligence care.” other ordinary the failure to exercise reasonable or care, ordinarily part on the both the “Reasonable care or of defendants, rea- as a plaintiff sonabely such care and the [sic] ordinarily prudent person would careful [sic] similar circumstances.” the same exercise under or III.
Conclusion Easley’s set instructions is different Each addressed Easley’s aspect defense a different circumstances theory. example: Two the exer Instruction deals with For care; duty ordinary Instruction Five deals with the cise of right-of- though you even have the exercise reasonable care jury theory for the Thirteen defines way; Instruction explains negligence; Instruction Fourteen contributory lookout; duty and Instruction Seventeen keep a reasonable proving burden con has the explains to the who negligence. aspects tributory Different circumstances separate theory require Gulley instructions. of a defense v. App. N.E.2d 188. (1947), Hamm 117 Ind. explanation
Any argument duties and these single para contributory into could be condensed single easily graph instruction can be dismissed. Such length draft, would would be difficult to and its instruction (1959), Rader v. Collins create confusion.
227, 161 recognized repetition some Supreme Court has
Our Perry jury. giving occur when instructions to a is bound to 923, 926, 603, 608, Judge (1970), 255 N.E.2d 253 Ind. Goss v. writing Court, Arterburn, stated: for the Repetition is bound . some extent instructions . occur, per se erroenous. It but that does not make them emphatically that repetition so occurs so often and is where it the law or particular overly impresses phase of jury with some instructions be said that such facts that can that such a condition are to be condemned. We do exists here find preju- case are nor the instructions in this dicial. [citations omitted].” against placed
Judge overemphasis Arterburn warned meanings upon instructions their affect upon the refined Quoting jury. Harbelis 248 Ind. Hendrix *11 Judge 624, 315, Arterburn stated: 230 N.E.2d “ ‘Instructing complex jury process. difficult is most and overemphasis generally that there has been an is conceded It wording meaning upon the refined instructions placed and of jury. upon effect exceed their actual the far When an which by legally and trained has read reread instruction to be slight meaning, catch a variation or mind to error in its laymen of difficult believe that a have been is to could signs symbols meaning Words mere of are and misled. thought, tools to work out refinements and ments exact. never We strive with inexact are lines precise in state- thoughts ideas, but are able to never reach writing perfection. instructions, exact eternally the we are attempts with failures at exacti- confronted frailty tude, we examine keep we must this human in mind when ” language Perry . .’ of instructions. . v. Goss, supra, 253 Ind. at at 927. granting specific reason for a new The trial court’s trial as ways ap- “. . doctrine not to Harmless— . choice by supported . plicable. . .” —is not the evidence. Three ways Mrs. testified available to Williams. She choices always evidence same route. I find no that she did take any of permit characterize the trial court which would I find an absence devious, the routes as nor do ways. has re- The evidence been three choices of weighed Miller, is court. This error. Holcomb v. supra. specific granting
The second
reason for
a new trial was
repeated
directed at
instructions which “. . .
over
tended to
emphasize
duty
by plaintiff.
Easley’s
owed
..
.”
four
duty
emphasis
instructions
against
were well
balanced
Mrs.
duty
Williams’ five
instructions.
It
difficult to conceive a
posture.
more
Perry
supra.
balanced instructional
Goss,
giving
The trial court was
correct
to the
instructions
jury.
Its reason for
sup
a new trial can not be
ported
record;
therefore,
its reason is erroneous. Lan
ders v.
Window
McComb
and Door Co.
reversed with instructions to overrule Mrs. Williams’ motion judgment upon reinstate rendered jury’s verdict. Appellee’s
On Motion to Dismiss July 25,
[Filed 1974] pending Curiam. This causeis before Per the Court appellee’s Appeal Motion Dismiss Appellants Betty May M. Harmless, Howard Harmless and Ann d/b/a tag Laundry. alleges Appellee’s Coin appel Motion that said lants neither filed motion correct nor an errors *12 assignment of errors. damages
This a personal was cause of action for in- juries by allegedly plaintiff-appellee, sustained when she was by by defendant-appellant Easley operated struck a truck the backing driveway as he out of a a laundromat owned was to by defendants-appellants jury, the Harmless. After trial to a judgment a was for the verdict returned defendants and was accordingly. entered plaintiff-appellee
Thereafter filed motion to correct eight alleging specifications praying errors error and that The granted. trial judgment and a new be set aside be its order granted to errors and motion correct trial court follows: thereon is as advised, court, being in to finds that the court “The erred set plaintiff’s as out in
the trial of this cause Motion by specification plaintiff’s number 2 Errors under Correct num- giving ber not plaintiff Harmless’ tendered instructions defendant ways 4, was reason that the choice for the doctrine applicable in that all the evidence that indicated walkway ex- a or on sidewalk was was designated sidewalks two she was tension of required public that way which choose between was a to right-of-way route which would have and a more devious property, said Harmless’ defendant been on the incorrectly jury upon advised the the law of instruction specification further set case. The court number court erred as out correct plaintiff’s motion to errors in that of6 referring applying gave repeated instructions or contributory doc- and that said the doctrine of overemphasize the trine so stressed tended The further these duty errors cannot be plaintiff. court finds that owed except granting plain- corrected tiff a trial. new is, now therefore, Errors to Correct “Plaintiff’s Motion granted against plaintiff is new trial as sustained Easley and Howard Harmless and defendants William Maytag Laundry.” Harmless, Betty Ann Coin d/b/a Easley defendant-appellant Correct filed Motion to
The
ruling.
defendants-appellants
The
Errors
directed
alleges
appel
appellee’s
Harmless
not.
Motion
did
motion,
pursuant
lants
should have filed such
Harmless
(1)
interpreted
7.2(A)
by the cases
Rule AP.
of State v.
413,
120,
(1973),
DePrez
260 Ind.
and Inkoff
239,
(1974),
159 Ind.
53 Supreme to the Indiana, appellee Court of motion filed a alleging, part, dismiss that no motion to correct errors was ever filed judgment addressed to the final of the trial Supreme court. Our appellee’s motion, Court sustained the holding ruling that the on the motion to errors was a correct judgment, new subsequent to which a motion to correct errors addressed, should been have because the court made new findings law, of fact though judg and conclusions of even ment of dismissal was the Arterburn, same. Chief Justice speaking Court, for the stated: “If simply granted the trial court had either or denied
that Motion to Correct step Errors such would have con- judgment stituted the final appeal this which could have been taken without further ado. Rule AP. 4. “However, insufficiency because of the of the November entry light upon 1970 of the attack made Errors, State’s Motion to correct the trial court entered entry completely 3, 1971, new February pursuant (B), constituting findings Rule TR. 52 new of fact and judgment (59) (E). new as authorized further Rule TR. entry This new for the first time set forth the reasons upon fact and in law which the trial court’s dismissal was they error, based. If were in then a Motion to Correct clearly necessary. Thus, February 3, Errors was entry rect 1971 judgment, became final a Motion to Cor- Errors, referred to in AP. been Rule should have filed.” This problem Court had occasion to consider same App. 290, case of Davis Davis N.E. Davis, following 2d 377. In decree divorce and distribu estate, tion of the marital the wife motion to correct filed a alleging errors, prop in the had erred division of the erty. granted The trial court her motion, and entered judgment amended prop which increased the amount of erty sought ruling her. appeal awarded to husband filing subsequent without motion to correct errors on his own behalf. appeal Court, appellee to this
On wife filed her motion alleging ruling dismiss the trial court’s the motion errors judgment, to correct constituted to which a This filed. been motion to correct errors should second *14 Supreme Court in State following Court, decision the the dismiss, to DePrez, supra, appellee’s motion the sustained v. stating: interpreted 4(A) “Thus, Rule AP. Supreme the Court has grants to denies a the trial court or motion to mean correct if accomplished by entry new a errors is which amendments,
judgment consisting findings, of additional ag- judgment, party prior the or other alterations grieved thereby the errors file motion to ad- must a correct entry judg- the has become final to the new dressed interpretation this appeal taken. With ment from which we is so, agree, only be- are bound to do but because we specificity al- logically the need for cause it stresses leged appeal process. first sentence of errors judg- referring appeals 4(A) ‘from all final AP. to Rule denominating rul- ments,’ as the second sentence well as judgment ing as final on a to correct errors motion given effect.” thus force and App. 464, 312 (1974), et al. In State v. Kushner appellee’s Motion 523, the trial sustained the court granted subject additure. new trial to Correct Errors and ruling Errors, In trial on the court made Motion Correct findings judgment. there new entered a new We held findings ruling newa constituted new because Court’s judgment, Motion to Correct appellant should have filed judgment precedent new as a condition Errors directed to this any appeal therefrom. Wyss Wyss et al. v. et al. 160 Ind. ruling on the 311 N.E.2d the effect of court’s original judg same to Correct Errors was the Motion ruling However, ment. Motion to Correct Errors on the findings not contained trial made new and additional original subsequent judgment. there that a in the We held required Errors was to have been filed Motion to Correct any appeal. preserve error on order previously All these discussed cases from case differ cases, us in that in each those before earlier a new now ruling original judgment from the court’s resulted on the case, in this the court’s Errors. However Motion to Correct original Errors, ruling on Motion Correct abolished trial, granting judgment re- judgment by and no new Therefore, subsequent no Motion to Correct Errors sulted. required. type exactly the case Arterburn This is Chief Justice supra, DePrez, he when stated: spoke of State simply granted . . . . . . Mo- “If the trial court had step Errors such would constituted tion to Correct final appeal judgment been from which could have ado.” without further taken judgment in this case is deemed to be
The final appeal may trial, pursuant which an be taken the new 4(A). AP. to Rule *15 to Dismiss is appellee’s Motion denied. Bejes P. Gumz Bejes, and Arlene his
Arthur John Troike, wife; and Clarabelle Charles Troike E. Bejes, wife; Executrix Estate Arlene his Deceased; Johnson, F. of Alice William Schacht, his wife. Schacht Jeanne January 27, Rehearing February 1975. denied Filed 3-473A35. [No. Transfer denied October 1975.]