JESSOP v. WERNER TRANSPORTATION CO., INC.
No. 869A156
Appellate Court of Indiana
September 2, 1970
Rehearing denied October 15, 1970. Transfer denied February 22, 1971.
261 N.E.2d 373
“Any person, firm, association, corporation, city, town or public utility adversely affected by any final decision, ruling, or order of the public service commission of Indiana, may, within thirty [30] days from the date of entry of such decision, ruling, or order, appeal to the Appellate Court of Indiana. . . .”
Referring back to Section 54-448, supra, we see that the words “municipality“, “city” and “town” are conspicuous by their absence. We therefore conclude that the legislature specifically excluded municipalities, cities and towns from the provisions of this section of the statute. By reference to Section 54-105, supra, we see that the legislature specifically excluded a municipality from the definition of the term “public utility.”
There is no statutory provision therefore, by which the appellant can bring itself within the scope of Section 54-448 and collect rates for water at the level authorized by the Commission and at the same time appeal that order.
For all of the above and foregoing reasons, the appellee‘s Motion to Dismiss is sustained, and this appeal is now dismissed.
White, J., dissents.
NOTE. Reported in 261 N. E. 2d 373.
JESSOP v. WERNER TRANSPORTATION CO., INC.
[No. 869A156. Filed September 2, 1970. Rehearing denied October 15, 1970. Transfer denied February 22, 1971.]
Milford M. Miller, Jr., Edward L. Murphy, Jr., Livingston,
HOFFMAN, P.J.-This appeal arises from the overruling of a motion for new trial. The trial resulted in a verdict and judgment in favor of defendant-appellee in a negligence action for personаl injuries sustained by plaintiff-appellant while a guest passenger in an automobile.
The facts from the record before us may be summarized as follows:
Appellant was a guest passenger in a vehicle being driven by her son in an easterly direction on U. S. Highway No. 30 in the left-hand passing lane of a four-lane divided highway. Appellee‘s employеe, Nyle W. Jurczewsky, was operating a semi-tractor and trailer in the same direction on U. S. Highway No. 30, in the right-hand lane. The vehicle in which appellant was a passenger proceeded to pass a pick-up truck which was traveling behind appellee‘s tractor-trailer. There was a dispute as to whether or not appеllee‘s tractor-trailer swerved into the left-hand lane thereby causing the collision between the vehicle in which appellant was riding--the guard rail--and the tire of appellee‘s trailer.
Appellant and her son each sued appellee separately. On a motion by appellee, the two causes were cоnsolidated and tried together--notwithstanding appellant‘s motion to separate for trial. The jury returned a general verdict in favor of appellee in both actions. The trial court rendered judgment in accordance with the verdict.
Appellant‘s sole assignment of error is the overruling of her motion for a new trial.
Appellant has briefed and argued that the trial court erred on three separate grounds: 1) That the trial court erred in granting appellee‘s motion to consolidate causes for trial and in overruling appellant‘s motion to separate said causes for trial; 2) that the trial court erred in giving appellee‘s Instruction No. 7; and 3) that the trial cоurt
As to point number one, appellant contends that the issue of contributory negligence--which was a defense to her son‘s cause of action--was allowed to spill over and cloud the issues in her cause of action.
Rule 1-4A, adopted October 15, 1957, effеctive January 1, 1958, is applicable to the instant case and is as follows:
“Consolidation - Separate trials. - (a) Consolidation. When actions (other than criminal) involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all thе actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
“(b) Separate trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, or counter-сlaim, or of any separate issue or of any number of claims, cross-claims, counter-claims, or issues.”
In support of her contention that the trial court erred in overruling her motion to separate causes, appellant cites Kizer v. Hazelett, 221 Ind. 575, 49 N. E. 2d 543 (1943). In Kizer plaintiff-appellee sued her son--she was a guest passenger in his vehicle--for wanton and wilful misconduct and the operator of the other vehicle for negligence, both in a single paragraph. Both defendants appealed a judgment for the plaintiff alleging that the trial court abused its discretion in overruling their motions to separate. Our Supreme Court reversed, holding that the trial court erred in overruling defendant‘s several motions for separate trials.
The factual difference in Kizer is apparent. Plaintiff-passenger in that case filed two causes of action--not just one as in the instant case--each requiring a different burden of proof. Appellant in the instant case did not sue her son, the operator of the vehicle in which she was riding, but
Hoesel v. Cain; Kahler v. Cain, 222 Ind. 330, 53 N. E. 2d 165 (1944), followed very closely the Kizer case--both in time and similarity of facts. However, in Hoesel neither appellant filed a motion for separate trials. Notwithstanding their failure to file the proper motion, appellants, citing Kizer, urged the Supreme Court to reverse because of the confusion which resulted from the complicated issues. Although the Supreme Court reversed on improper instructions, they did discuss the issue of consolidation and stated that Kizer did not mean that “the several issues of wilful and negligent injury can never be fairly presented in onе trial.” (Id. at 347, 53 N. E. 2d 171.)
The general rule for appellate review of consolidation under Rule 1-4A (a), Rules of the Supreme Court of Indiana, was stated by Judge Cooper, speaking for this court in Brennan v. Reydell, 134 Ind. App. 298, at 301, 187 N. E. 2d 492, at 494, (1963):
“[G]enerally a consolidation of causes of action cannot be successfully demanded as a matter of right, but is to be granted or denied in the discretion of the trial court, and such ruling is not cause for reversal unless such discretion is manifestly abused.” (Citing cases.)
Recognizing that a showing of prejudice is a prerequisite to a finding by this court that the discretion of the trial court was abused, appellant, in her brief, attempts to show that she was prejudiced. Being somewhat overzealous, however, counsel for appellant attempted to show prejudice by affidavits1 which purport to prove that the jury believed both
It is the law in Indiana that affidavits of jurors will not be received to impeach their verdict. See: Sinclair v. Roush, 14 Ind. 450 (1860); Stanley v. Sutherland, et al., Administrators, 54 Ind. 339 (1876); Houseworth v. Bishop, 57 Ind. App. 62, 106 N. E. 380 (1914); 22 I.L.E., New Trial, § 129, p. 115.
Perhaps the best, and most recent, statement in Indiana cоncerning conduct such as counsel for appellant has displayed in the instant case appears in Wilson v. State, 253 Ind. 585, 255 N. E. 2d 817, at 821, 21 Ind. Dec. 1, at 6 (1970), wherein Judge Arterburn, speaking for our Supreme Court, said:
“A jury‘s verdict may not be impeached by testimony of the jurors. Even the slightest consideration of such a practice under these circumstances would сreate an intolerable situation and no jury verdict would ever be lasting or conclusive.” (Citing cases.)
Aside from the affidavits, appellant‘s assertion that she was prejudiced is based upon a reproduction of testimony found in the transcript. In effect, appellant urges us to view the evidence in a light most favorable to her. This is contrary to the well-established principle that on appeal the court will view the evidence in the light most favorable to appellee. Dent v. Dent, 241 Ind. 606, 613, 174 N. E. 2d 336 (1961); Shula v. Shula, 235 Ind. 210, 213, 132 N. E. 2d 612 (1956).
There was no abuse of the discretion lodged in the trial court by Rule 1-4A, supra, and thus no reversible error. It is worth noting, however, that Rule 1-4A, supra, was replaced, effective January 1, 1970, by Indiana Rules of Trial Procedure, Rule TR 42. Rule TR 42, hоwever, would not change our decision on this issue in the instant case.
Appellant‘s second specification of error centers on defendant‘s tendered Instruction No. 7, which is as follows:
“If, after considering all of the evidence, you find that the accident might have been caused in several different ways other than as alleged by plаintiffs in their complaint and you cannot determine from the evidence what was the proximate cause of the accident, then there can be no recovery by either plaintiff and you may return a verdict for the defendant.”
Appellant urges that this instruction was error for three different reasons:
- It is a mandatory instruction which incorreсtly states the law regarding an essential element of the appellant‘s cause of action, proximate cause.
- It instructs the jury regarding matters outside of the issues presented by the pleadings and proof.
- It is, in effect, a “mere accident” instruction which was given in a case where the evidence clearly indicates that the accident was caused, at least in part, by the negligence of appellee‘s driver.
Although counsel for appellant briefed and argued subpoint (B) above, she failed to raise the objection when she filed her written objections to instructions. It is the law in Indiana that on appeal appellant may only raise points to which specific objections were made in
Therefore, appellant waived any objection to Instruction No. 7 relating to her argument that it instructed the jury regarding matters outside of the issues presented by the pleadings and proof. This is also true of the argument that the instruction ignores the possibility of concurring proximate cause.
Under subpoint (A) above, appellant argues that Instruction No. 7 was a mandatory instruction. With this contention we cannot agree. The definition of a mandatory instruction was reiterated by our Supreme Court in Perry v. Goss, 253 Ind. 603, 255 N. E. 2d 923, at 925, 20 Ind. Dec. 433, at 435 (1970), wherein Judge Arterburn, speaking for the court, stated:
“A mandatory instruction is one in which thеre is an attempt to set out certain facts upon which the jury is directed to reach a certain result.” (Emphasis supplied.)
Instruction No. 7 does not set out certain facts; none of the parties are referred to by name; from this instruction it is impossible to tell how the accident occurred--in fact--one cannot even deduce that the accident referred to was an automobile accidеnt. Instruction No. 7 does not meet the first element required--an enumeration of certain facts--and is, therefore, not mandatory.
Appellant‘s subpoint (C) above charges that Instruction No. 7 is a “mere accident” instruction and, therefore, it is reversible error. We agree that the giving of a “mere accident” instruction is reversible error. Miller v. Alvey, 246 Ind. 560, 566, 207 N. E. 2d 633 (1965); Jones v. Castor, 140 Ind.
We also agree that the instruction need not contain the words “mere accident” or “pure accident.” As was stated by this court in Qualls v. J. C. Penney Company, 144 Ind. App. 276, 245 N. E. 2d 860, at 863, 17 Ind. Dec. 72 (1969), (Transfer denied):
“As we interpret the above cited authorities, it is reversible error to give an instruction in which is incorporated the phrases ‘mere accident,’ ‘unavoidable accident‘, ‘pure accident,’ or any form or phrase regardless of form which directly or indirectly conveys to the jury a mere accident situation.” (Emphasis supplied.)
That Instruction No. 7 does not contain the words “mere“, “pure“, or “unavoidable” is beyond dispute. Beyond this, however, we are of the opinion that the instruction does not convey, either directly оr indirectly, to the jury a “mere accident” situation. In so finding we have not done as appellant suggests in subpoint (C), i.e., viewed the evidence in a light most favorable to appellant in order to conclude that “the accident was caused, at least in part, by the negligence of appellee‘s driver.” As we have previously stated, the law in Indiana is exactly to the contrary.
Instruction No. 7, in our opinion, is directed at one element of plaintiff-appellant‘s case--proximate cause. The trial court, by this instruction, told the jury that if plaintiff failed to carry her burden of persuasion and convince them that a proximate cause of the accident was as alleged by plaintiff, then the jury may return a verdict for defendant. This is a proper statement of the law, and it was not error for the trial court to so instruct the jury.
Appellant‘s third specification of error is the trial court‘s overruling of the motion to strike the testimony of Cletus
The statutory basis for this specification of error is found in Acts 1881 (Spec. Sess.), ch. 38, § 420, p. 240, Ind. Stat. Anno., § 2-2401, Burns’ 1968 Repl.,3 which, in pertinent part, is as follows:
“Causes For.--A new trial may be granted in the following cases:
* * *
“Third. Accident or surprise, which ordinary prudence could not have guarded against.”4 (Emphasis supplied.)
In support of her allegation of “surprise“, appellant contends that she was misled and hindered in the preparation of her case by certain answers to questions in the deposition of Mr. Nyle Jurczewsky, appellee‘s employee and the driver of the truck. The questions аnd answers are as follows:
“Q. Do you know the name of the driver of the pickup truck?
“A. No, I do not.
“Q. Do you know the names of any other witnesses who may have seen the accident take place?
“A. No.”
The accident occurred on December 29, 1965, and the deposition was taken on February 4, 1969. We do not think it
Appellant was, at all times, aware of a witness and the fact that the witness was in a pick-up truck. However, she apparently did not know his name until the day before trial. The surprise, if any, was the fact that the witness, Mr. Stabler, hаd given his name to appellete‘s driver, Mr. Jurczewsky, at the scene of the accident. This fact was first brought out at the trial during the cross-examination of Mr. Stabler.
The record before us reveals that the only discovery undertaken by appellant was the deposition of Mr. Jurczewsky, appellee‘s truck driver. Further discovery proceеdings permitted under the statutes would have revealed the identity of the witness.
Surprise is a ground for new trial only when ordinary prudence could not have guarded against it. We cannot say that appellant has met the statutory test in the instant case.
The trial court did not err in consolidating appellant‘s cause for trial; the giving of defendant‘s tendеred Instruction No. 7; or in overruling appellant‘s motions to strike the testimony of Mr. Cletus Stabler.
Judgment affirmed.
Pfaff and Sharp, JJ., concur.
White, J. concurs with opinion.
CONCURRING OPINION
WHITE, J.-I concur in all relevant portions of the foregoing opinion. Counsel‘s state of mind, motives, purposes, intent, or ethics, and anyone else‘s opinions concerning them, are totally irrelevant to our affirmance of the trial court‘s judgment. I have not stated any opinion as to any action of
NOTE.-Reported in 261 N. E. 2d 598.
PFAFF, J.