*1 Appellate This is ordered transferred to the Court provisions Supreme Indiana in accordance with the Rule Court 2-41.
Jackson, J., Arterburn, J., Landis, J., C. concur. con- Achor, J., participating. curred November 1965. Reported in 211 N. E. 305.
Note. — White v. Evansville Home Association. 30,852. Rehearing Filed October [No. denied November 1965.] Jennings John H. Wilson, Jr., and Harold Evansville, M. appellant. Bamberger, Foreman, Hahn, Evansville, Osioald and petition cause reaches us to transfer J. This
Landis, pursuant Appellate 2-23, Appellate Rule Court appearing in 2d 820. Court’s *2 damages brought in the trial for for suit Appellant appellee’s injuries allegedly sustained as result personal furnishing appellant ap- a defective chair in hall. amusement pellee’s grow presented appeal questions this out paragraph jury upon second
trial before filed, thereto which resulted in a the answers complaint and appellee-defendant. judgment for and urged Among trial, in the motion for new the errors assigned overruling appeal, as error on this is are of which instructions, giving two of which will numerous have appeal. on this particular attention our giving error was committed Appellant contends objection No. which was of instruction as follows: over accident, recognizes possibility of a mere “The law way find negli- is no to the which due is, an occurrence that you Therefore, if gence any one. complained plaintiff injuries in this case that were by accident, recovery no mere there can be of a the result Mary Anna plaintiff White.” Alvey of Miller in the case In our recent us an in- page we had before accident, giving of which we held to be pure struction reversible error. argued supra, Alvey, in Miller v. that we held
It has been “pure accident” “unavoidable accident” instruction on support such an proper if there was evidence was completely at construction is vari That instruction. reading careful of our in which ance with a expressions “pure accident” or “un pointed out particular connotation in no modern accident” avoidable expressions negligence cases, were pleading of lay jurors, confusing their use instruc ambiguous unwise, disapproved any tions was undesirable and and we prior statements in decisions which could construed to the contrary. Alvey, Consistent with Miller v. we must hold it error the court to instruction No. 5. has this further contended on
court erred in instruction No. stated follows, viz: Mary only “You are instructed .that Anna White is the plaintiff and Evansville American Home Association case, defendant no this there is party, evidence in or there is other defendant, interested in outcome.” its pointed As we Alvey, p. further supra, (at in Miller Ind., 568 of pp. 637, 2d) 638 of : recognize ‘‘Decisions of in an the rule that out,of damages action evidence as growing an automobile accident to insurance ordi- carried the defendant *3 narily only inadmissible not is irrelevant but because it prejudice because jury against it tends to the defendant. 139, See: Lilly (1919), 146, Martin v. 121 N. 188 Ind. E. 443, 445; 394, 400, App. Flamion Dawes 91 Ind. 60, N. E. City See Terre also: Haute v. Deckard 289, 815, E. “Conversely, evidence as to the of the defendant failure carry to generally insurance is likewise inadmissible on the ground sympathy tending irrelevancy improperly and as arouse to personally for a defendant that he would have pay might to jury the amount of return. “Similarly, jury’s instructions which call to the attention improper objectionable. these matters are likewise Instruc- given telling defendant-appellee’s request tion No. 9 at jury that and the defendant were the parties parties but that no one such were interested in the outcome the case is not to be commended it as was apparent attempt to to indicate the de- carry liability insurance, fendant did the fact of proved by introduced, insurance would have proper certainly not when this matter was or relevant issue for their consideration.” it It follows therefore that was error for the court to No. 35.
instruction argued strenuously that appellant has further The by appellee were forty-three tendered instructions additional attorney numerous and voluminous so sufficient carefully study each of them with could not it and that to errors detail detect all the unduly without impossible to so court do physically for the gave The court impeding the cause. delaying trial of thirty-nine concede We must in all instructions. mere tendering their instructions when time comes fixing a magnitude point beyond reason. Without reaches a reasonable, point out that must to what limitation make times at tendered instructions will numbers of sheer attorneys or the court opposing physically impossible it duty instructions. perform of such in the examination their may reached, be that When that answer situation, specific require, under Court will such objections instructions be tendered made each may impossibility, the trial court and hold that cause in its discretion such tendered instructions refuse they become so numerous. when Emry We v. Beaver 192 Ind. refer it wherein was stated: “Appellants than claim other errors instructions reversing on the one to which referred. We are we have apparent have first and most in these instructions and error investigated errors, not mistakes, trial. The limited. the other claimed because any, probably re- if not occur on there are will are too voluminous and should be instructions, forty-five gave all hardly prolix. twenty-seven pages printed brief. It is covered possible Such extended instructions lead to needless so to avoid error where instructions are repetition. This *4 repeatedly Robbins, Fugit, Exr., has v. condemned. supra, and cases there cited. reversed, is with instructions to sustain “The appellants’ a motion for new trial.” jury the further claims that was “brain-washed” by large mandatory number of of a
73 a verdict for the In this to return case jury eighteen times, different told sub plaintiff stance, could not recover or that their verdict should be the defendant certain events. Mandatory type instructions are not the best of instructions jury. jury easily very a to- conclude that the great judge, respect, for whom a has a deal of is urging repeatedly to return for one of them Thompson parties. It has been said Baker v. 337 App. 327, 335, E. 2d Ill. N. 927: “* * * repeatedly the court tells them When ‘the ‘they cannot recover’ or that must find the defend- guilty,’ jury may believe that ant not the No one court is of opinion verdict should be for the defendant. coming wrongs our courts for redress of done into required to bear the onus of them should be this disad- vantage. foregoing, “In it is our view plaintiff-appellant entitled a new trial.
“Judgment (Our emphasis.) reversed and remanded.” Gorby (1956), See Bean also: Ariz. 199, 201; App. Alexander Sullivan P. 2d 42, 45, 334 Ill. 2d Vance v. Wells App. 659, 666, reluctantly It our that a court should tendering mandatory instruction and the of such instructions party may should be avoided. Where instruction principle or cover the framed law without language mandatory therein to return a verdict for one or the parties, it is not error for a other trial court refuse mandatory pass such a tendered instruction. need not We specifically upon in this these instructions the reason upon points previously. that this is reversed stated foregoing guid- However, make the observations for litigants hope and the in the ance of the trial court that these large questions may to a extent be eliminated the use trial below. discretion *5 remaining contentions necessary to discuss the It is they likely retrial. to arise error, are not the mo- Judgment to sustain with instructions reversed trial. tion for new J., in JJ., Achor, concurs Arterburn,
Myers, concur. and following. J., Jackson, dissents with result. C.
Dissent agree the conclusion with C. J. I am unable to Jackson, I reason majority opinion For that herein. reached dissent thereto. discloses this case factual situation in the record in tried, the case has been that this
that this is fourth time Vanderburgh original having- Probate action been filed in the thereafter venued Court in March 1954. The cause was Court, before a had therein the Warrick Circuit trial was resulting in favor $18,000. perfected from the An sum of was Appellate and was transferred rendered therein to the Court Appellate pursuant to Acts from the Court to this Court 4-209, Replacement. On p. 565, ch. Bums’ § § 2,1958, and remanded this court reversed said cause December grant the same to the trial court instructions to a new with rehearing January 13, This Court denied trial. previously appealed appellee In tried and the case appellant here, negligence there, claims that inference of ipsa, loquitur, arose in this case under the doctrine of res cause, contention was held invalid this Court in said reversing remanding said cause with grant question there said new Court “[t]he negligence remaining is whether there is evidence of causing injury.” proximately This Court also answered succeeding question pertinent page, part, on the which follows: reads as argument us, In oral “We believe there is not. before any specific able to
counsel urged however, negligence. inspec- that the It was item of testing before their use should have the chairs tion independent thorough. duty There is no to make more duty inspection upon can based. The knowledge possible inspect defects or their arises showing probability. There is no here that the reasonable knowledge any previous appellant or had of the defective chair suspect the chairs were cause to defective. The contrary.” Evansville undisputed Ameri- etc. v. White *6 2d 109. N. E. proceedings For further discussion of the heretofore had in reference is had to the case now before us White Evansville Legion Home Assn. 207 N. E. 2d American 820. In brevity unnecessary repeat it interest of we deem steps procedural heretofore had and this forth. set point by
I out that the law the case as established 1958, by its of December Ameri [Evansville supra] White, precludes recovery by etc. v. appellant requires herein and denial of transfer in the action now before us. existing bar,
Under the circumstances in the case at previous court, determination and decision of this no new negligence having evidence as to been adduced in the case at bar, giving refusing makes the or instruction No. 5 immaterial because under the law case as heretofore argument enunciated this Court had determined oral “[i]n us, point before counsel for was not able to specific negligence.” item of Evansville supra. White, etc. v. “pure attempted
Further the rule as to accident” to be imposed by majority opinion in the case of Miller Alvey pure dicta, 207 N. E. 2d ap- not plicable appellant in said the reason there was guest by in the automobile driven by Trial resulting negative denying plaintiff- was had in a Appellant having
appellee any recovery. the burden of having proving wilful and wanton failed to that burden was not to recover. sustain entitled On cause, the record in said the determination this Court complained the instruction of constituted reversible error, germane ap- to the issues to determined on peal certainly applicable the case at bar. complains further instruction No. 35 was Again point erroneous and constituted reversible error. out that under the law the case heretofore established giving Court, of said instruction could not be harm- appellant, giving ful to the and the or refusal immaterial, helpful instruction would be and would be neither nor harmful in the determination of the issues this cause. Under other circumstances and in another case such an in- might prejudicial, struction well be harmful cause for reversal, appellant in the instant case but was neither harmed by the nor benefited the instruction and the court did not therein commit reversible error.
We further out that in the cause now under considera- against tion there was a favor *7 paragraph appellant’s complaint the first of as amended No motion for a trial interlineation. new judgment ever filed with reference to the rendered on said paragraph appellant’s complaint, amended one of nor was any appeal perfected taken or from the paragraph rendered on said amended one of complaint.
In specifically conclusion I wish to call attention to the language opinion of this Court’s the former [Evans- Legion, ville etc. v. White 239 Ind. pertinent part 154 N. E. 2d page In 109]. same at reads as follows: pertinent parts “The of evidence show that
appellee, on White, sister, bingo game Mrs. and her attended a evening bought the accident and tickets from entering appellant the hall she purpose. After for that pulled it and sat down selected chair at a table and collapsed. in- immediately The chair on it and chair folding together put with rivets metal chair volved awas welding. An the chair after accident examination of holding the two showed that the curl on the end of the rivet right legs together broken the chair had sheared bright place come off was The where the curl had off. shiny, off. We do shearing a recent not oxidized or corroded. It showed any dispute in the as to this not find evidence fact.” language page referring
Again to the of this Court part opinion pertinent here we find former reads “[t] previous showing appellant knowl- here that is no suspect chairs edge defective chair or had cause contrary.” undisputed The were defective. [Emphasis supplied.] that adduced
The evidence adduced at the first
is,
in the case
writer of
at bar
so far
being
case,
determine, practically
That
identical.
able to
court,
Amer
former
[Evansville
view the
judicata
supra]
res
White,
the doctrine of
ican
etc. v.
Lieb v. Lichten
applies and
cannot recover.
here
284;
v. Cox
483, 23
stein
Cutler
Ind.
etc.,
(1828), 2
Oil
Co. v. Ellsworth
Blackford
United
App. 670,
Mavrick Rehearing 30,446. denied Filed October [No. 23, 1965.] November