*1 Finding error, no is affirmed. reversible Prime, Carson, JJ., Martin and concur. Reported 204 N. E. 2d 372.
Note. — Company. Deming Hotel
Miller February 9, 19,815. denied Filed [No. September 1966.] 1966. Transfer denied June *2 Chaney Mann, Buena Mann, Chaney, of Hicks, Johnson & of Haute, Terre for
Thomas M. Dix, Dix, Patrick of Ratcliffe, Patrick & of Haute, appellee. Terre for Appellant against appellee filed suit for
FAULCONER, J. — damages injuries for sustained her when she fell appellee’s premises. by jury Trial resulted in a verdict appellee, accordingly. and was entered
Appellant timely containing filed her motion for new trial grounds 1, 2(a), 2(b), 2(c), 2(d), 2(e) 2(f), and which was overruled, ruling assigns appellant which appeal. as error on
Appellant specifications only 2(c), 2(d) discusses 2(e) Therefore, section of her brief. all other
grounds specifications or for new trial are deemed waived. Gernhart v. State 470, 472, 233 Ind. 265; (e) (f), Rule 2-17 of Rules Supreme Court, 1964 Revision.
Specification 2(c) contends in jury error to the defendant-appellee’s Instruction objection No. 16 over the of plaintiff-appellant. Specification 2(d) giv- contends error in ing defendant-appellee’s 3 over the plaintiff-appellant. Specification of 2(e) contends error giving defendant-appellee’s Instruction No. 22 over the ob- jection plaintiff-appellant. specifications
We will consider (c) together (e) and 2 inas- virtually much as involve same issue. objected specifically only one in Instruc- sentence contending it tion No. 16 would invade province jury, that it instructed the law, plaintiff-appellant required matter to look was steps duty only ordinary when her reason- use Appellant’s objec- able care under all of the circumstances. is, effect, tion to Instruction 22No. the same as made to Instruction No. 16. by appellee
Both of instructions were tendered these specific objections given by appellant, trial court over on the use and instructed the senses. required embody
The trial court was not
all
into one
law
McClure v. Miller
229 Ind.
422, 435,
498; Washington
Realty
98 N. E. 2d
Hotel
Stone, etc.,
Co. Co.
Bedford
156;
143 N. E.
Powell v. Ellis
*3
App. 700,
(Transfer denied) ;
694, 708, 299; McGonigal, Ethering 76 N. E. H. E. Inc. v. App. 622, (Transfer 118 ton Ind. E. 2d 79 N. 777 denied). given by court, the instructions the trial
A of all review by appel- specifically Nos. 5 and 15 tendered and Instructions lant, appellant’s such instructions covered us that convinces properly, thoroughly objections and that the was Therefore, giving appellee’s the ten- fairly instructed. 22 Nos. 16 and not reversible error. Instructions dered giving by the trial error in the Appellant next asserts Ap- defendant-appellee’s Instruction No. 3. court of two specific that the last pellant’s thereto was “requires [appel- paragraphs of said instruction prove negligence contributory her freedom from lant] as precedent recovery, places upon condition to a and as such greater placed upon a burden than that her law.” appeal specific objection is confined on to the
made to an instruction in the trial court. Keeshin Motor
Express 440, 446, Co. v. Sowers Ind. 459; Transp. Lines, Davis, Sims Mtr. Inc. v. Admx. App. 344, 352, E. 2d 82 130 N. (Transfer denied). Court, 1-7, Supreme Rule Rules 1964 Revision. argument
Appellant ably forth in sets section of her general law, supporting authorities, per- brief rules
taining placing to error in the of an instruction proof party, an burden erroneous on a such an instruction cannot other be cured instructions. However, appellant authority cites no to substantiate her objected does, fact, place assertion that the instruction upon proof. her an erroneous burden of Nowhere applied section of brief has she her assertions, quoted from, or authorities cited and to the question. Any application instruction in is limited to her conclusion the courts have condemned such an instruc- defendant-appellee’s tion as tendered Instruction No. 3 after general quoting principle of law.
n opinion assign- under this are of We clearly points exhibit of fact and has failed to being presented .,” “and how . . law (e), supra. (Emphasis supplied.) required Rule 2-17 How- appellant argued ever, the further that had are of we *4 by her specific made to this such merit and the objection is without of said instruction not by court was reversible error. the trial assigned considered, Appellee cross-errors which we have grounds reversing judgment. for find therein no this and we error, Finding no reversible of the trial court is affirmed.
Judgment affirmed.
Prime, Carson, J., C.J. and concur.1 Wickens, J., participating. not for
On Petition petition her for Appellant has filed herein Faulconer, J. — paragraphs. rehearing in four opinion in the court’s
Appellant’s contention as to error first conclusion, unsupported merely of the stated consists authority, tendered citation by plaintiff’s 15. Instructions Nos. 5 and 16 was not cured No. argument no a flat conclusion that is more than This failing in in to decide the issue favor court erred rehearing petition for paragraph In the second give failed to a state- Court that “[t]he contends arising question writing on each substantial writing concerning give any failing statement record objections to defendant’s Appellant’s regard objection, ap- the court to this viewed 22.” With objections to defendant’s tendered Instructions Nos. pellant’s regard being, in effect and with to the issue 16 and appellant’s petition From presented, the same. Thus, is aware of this apparent she fact. the court
it is single question having dealt in its written with presented, second contention is without merit. support her Appellant’s third contention allegation rehearing since defendant’s tendered mandatory instruction, 22 was a its Instruction No. ordinary element of care could be omission not support other instructions. In of this state- aided Judge participated hearing Martin of oral While untimely judges, his of the death occurred a conference before opinion. adoption of this *5 344 v. Boicourt, cites Covert Exr. 93 Ind.
App. 355, 168 N. E. The Covert case does hold that the presented by omission of an essential element from issues mandatory instruction cannot be cured other instruc regard, however, appel tions. to the basic With element of contention, i.e., lant’s third In defendant’s tendered was, fact, 22 mandatory, struction the court indicated, page App., Covert on 364 case of 93 Ind. regards mandatory it an instruction as which “directs a certain verdict on facts to be found.” Such is view sub in Vance v. Wells stantially expressed in accord with that App. 659, 586, 159 N. E. 2d and thus the Covert case is not in conflict with the conclusion that 22 tendered Instruction No. mandatory is not un explanation mandatory definitive of a der the instruction pages Wells, supra, at App., 666-667 of 129 Vance Ind. v. follows: mandatory unequivocally charges “A instruction they preponderance from a if find the evidence that exists, they a certain of facts set must render a verdict in therewith, accordance of one either for the or in favor positively defendant. It directs the to find for against party the other.”
Appellant, paragraph in the fourth and final peti- tion for raises the same to defendant’s tendered Instruction No. 3 as raised appeal, i.e., on placed upon instruction proving burden of contributory negligence. her freedom from cites Supreme of Indiana support five Court cases in of her con- cases, tention. Of these five three previously were cited support proposition brief in of the same for which language are now cited. reasoning The found in written court’s is still question on this of law. re by appellant in her
The
cases cited
two
Harper
hearing
appeal
v. James
were not cited
which
531,
v. Adams
N. E.
Deekard
Ind.
2d
cases
In each of these
In injury, required plain- in an action *6 “ preponderance all the evidence prove by a fair ‘to tiff alleged showing of the de- misconduct that . . . facts damages proximate of the . . . sole cause fendant was ” imposing burden erroneous as a . . .’ such instruction contributory plaintiff proving upon the absence supra, negligence. Similarly, Adams, an action in Deekard v. involving injury, an instruction the court held that proving “erroneously upon the burden cast negligence.” contributory . that the was free from . . “ stated, part, ‘the burden The erroneous prepon- upon plaintiff] prove a to Carmen Deekard [the . of . . of the that . . . one or more derance evidence [the negligent proximate and direct acts was the sole defendant’s] ” injuries plaintiff. . .’ cause of . Harper Deekard cases readily apparent, As is re- problem posed instructions which with concerned preponderance of plaintiff to demonstrate quire a complained of were or acts the act the evidence language injury. contained The sole cause clearly No. 3 is dissimilar Instruction tendered defendant’s Harper found erroneous instructions of the compel the cases, in no manner hence these cases Deekard 3 is conclusion similarly erroneous. opinion in opinion that the court’s written are of the
We properly pre- with adequately all matters dealt this cause appeal, sented to us on and as for rehear- ing is not meritorious, the same should be denied.
Petition for denied. Prime, JJ.,
Carson and
concur.
Wickens, P.J.,
participating.
not
Reported
Rehearing
DeMoss Coleman May 31, 20,254. denied Filed [No. September 27, 1966.] June 1966. Transfer denied *7 Ralph Koehne, Evansville, M.
McCray, Clark, McCray, Evansville, Statham & appellees.