210 N.E.2d 845 (Ind. 1965), 30852, White v. Evansville Am. Legion Home Ass'n

Docket Nº30852.
Citation210 N.E.2d 845, 247 Ind. 69
Party NameAnna Mary WHITE, Appellant, v. EVANSVILLE AMERICAN LEGION HOME ASSOCIATION, Appellee. EVANSVILLE AMERICAN LEGION HOME ASSOCIATION, Cross-Appellant, v. Anna Mary WHITE, Cross-Appellee.
Case DateOctober 15, 1965
CourtSupreme Court of Indiana

Page 845

210 N.E.2d 845 (Ind. 1965)

247 Ind. 69

Anna Mary WHITE, Appellant,

v.

EVANSVILLE AMERICAN LEGION HOME ASSOCIATION, Appellee.

EVANSVILLE AMERICAN LEGION HOME ASSOCIATION,

Cross-Appellant,

v.

Anna Mary WHITE, Cross-Appellee.

No. 30852.

Supreme Court of Indiana.

October 15, 1965

Dissenting Opinion Filed Oct. 18, 1965.

Rehearing Denied Nov. 22, 1965.

[247 Ind. 69] John H. Jennings, Harold M. Wilson, Jr., Evansville, for appellant and cross-appellee.

Bamberger, Foreman, Oswald & Hahn, Evansville, for appellee and cross-appellant.

[247 Ind. 70] LANDIS, Judge.

This cause reaches us on petition to transfer from the Appellate Court pursuant to Rule 2-23, the Appellate Court's opinion appearing in 207 N.E.2d 820.

Appellant brought suit in the trial court for damages for personal injuries allegedly sustained as a result of appellee's negligence in furnishing appellant a defective chair in appellee's amusement hall.

The questions presented on this appeal grow out of the trial before a jury upon the second paragraph of appellant's complaint and the answers thereto filed, which resulted in a verdict and judgment for appellee-defendant.

Page 846

Among the errors urged in the motion for new trial, the overruling of which is assigned as error on this appeal, are the giving of numerous instructions, two of which will have our particular attention on this appeal.

Appellant contends error was committed in the giving over objection of instruction No. 5 which was as follows:

'The law recognizes the possibility of a mere accident, that is, an occurrence which is in no way due to the negligence of any one. Therefore, if you find from the evidence that the injuries complained of by the plaintiff in this case were the result of a mere accident, there can be no recovery by the plaintiff Anna Mary White.'

In our recent opinion in the case of Miller v. Alvey (1965), Ind., 207 N.E.2d 633, we had before us an instruction on pure accident, the giving of which we held to be reversible error.

It has been argued we held in Miller v. Alvey, supra, that an instruction on 'pure accident' or 'unavoidable accident' was proper if there was evidence to support such an instruction. That construction is completely at variance with a careful reading of our opinion in which we pointed out that the expressions 'pure accident' or 'unavoidable accident' had no particular connotation in modern pleading of negligence cases, that such expressions were ambiguous and confusing to lay jurors, their use in instructions was undesirable and unwise, and we [247 Ind. 71] disapproved any statements in prior decisions which could be construed to the contrary. Consistent with Miller v. Alvey, we must hold it was error for the court to give instruction No. 5.

Appellant has further contended on this appeal the court erred in giving instruction No. 35, which stated as follows, viz.:

'You are instructed that Anna Mary White is the only plaintiff and Evansville American Legion Home Association is the only defendant in this case, and that there is no evidence in this case that there is any other party, plaintiff or defendant, interested in its outcome.'

As we further pointed out in Miller v. Alvey, supra, (at pp. 637, 638 of 207 N.E.2d):

'Decisions of this state recognize the rule that in an action for damages growing out of an automobile accident evidence as to insurance carried by the defendant is ordinarily inadmissible not only because it is irrelevant but because it tends to prejudice the jury against the defendant. See: Martin v. Lilly (1919), 188 Ind. 139, 146, 121 N.E. 443, 445; Flamion v. Dawes (1929), 91 Ind.App. 394, 400, 169 N.E. 60, 62: See also: City of Terre Haute v. Deckard (1962), 243 Ind. 289, 295, 183 N.E.2d 815, 818.

'Conversely, evidence as to the failure of the defendant to carry insurance is likewise generally inadmissible on the ground of irrelevancy and as improperly tending to arouse sympathy for a defendant that he would personally have to pay the amount of any verdict the jury might return.

'Similarly, instructions...

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39 practice notes
  • 211 N.E.2d 781 (Ind.App. 1965), 20066, Kampo Transit, Inc. v. Powers
    • United States
    • Indiana Court of Appeals of Indiana
    • November 24, 1965
    ...Miller v. Alvey (1965), Ind., 207 N.E.2d 633, and again in the case of White v. Evansville American Legion Home Association (1965), Ind., 210 N.E.2d 845, has held that the giving of an instruction on 'mere' or 'unavoidable' accident is error. The reverse would also be true under the reasoni......
  • 259 N.E.2d 450 (Ind.App. 1970), 1169A200, Shelby Nat. Bank v. Miller
    • United States
    • Indiana Court of Appeals of Indiana
    • June 15, 1970
    ...of the evidentiary facts under which the law would mandate a certain result. White v. Evansville American Legion Home Association, 247 Ind. 69, 210 N.E.2d 845 (1965) and Perry v. Goss, Ind., 255 N.E.2d 923 (1970). In excluding the suggested sentence from Plaintiff's instruction number 2, th......
  • 271 N.E.2d 177 (Ind.App. 1971), 1170A182, Freeman v. Commonwealth Life Ins. Co. of Louisville, Ky.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 30, 1971
    ...S.W.2d 548 (1939). [4] Miller v. Alvey (1965), 246 Ind. 560, 207 N.E.2d 633; White v. Evansville American Legion Home Association (1965), 247 Ind. 69, 210 N.E.2d 845. [5] A 'contract of adhesion' is a standarized contract imposed and drafted by party of superior bargaining strength who rele......
  • 358 N.E.2d 184 (Ind.App. 1 Dist. 1976), 2--375A53, Frankfort v. Owens
    • United States
    • Indiana Court of Appeals of Indiana
    • December 22, 1976
    ...mandatory instructions such as those tendered Page 194 by Frankfort, supra. In the case of White v. Evansville American Home Ass'n (1965), 247 Ind. 69, 210 N.E.2d 845, the court therein at pp. 847--848 said: [171 Ind.App. 581] 'Mandatory instructions are not the best type of instructions to......
  • Request a trial to view additional results
39 cases
  • 211 N.E.2d 781 (Ind.App. 1965), 20066, Kampo Transit, Inc. v. Powers
    • United States
    • Indiana Court of Appeals of Indiana
    • November 24, 1965
    ...Miller v. Alvey (1965), Ind., 207 N.E.2d 633, and again in the case of White v. Evansville American Legion Home Association (1965), Ind., 210 N.E.2d 845, has held that the giving of an instruction on 'mere' or 'unavoidable' accident is error. The reverse would also be true under the reasoni......
  • 259 N.E.2d 450 (Ind.App. 1970), 1169A200, Shelby Nat. Bank v. Miller
    • United States
    • Indiana Court of Appeals of Indiana
    • June 15, 1970
    ...of the evidentiary facts under which the law would mandate a certain result. White v. Evansville American Legion Home Association, 247 Ind. 69, 210 N.E.2d 845 (1965) and Perry v. Goss, Ind., 255 N.E.2d 923 (1970). In excluding the suggested sentence from Plaintiff's instruction number 2, th......
  • 271 N.E.2d 177 (Ind.App. 1971), 1170A182, Freeman v. Commonwealth Life Ins. Co. of Louisville, Ky.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 30, 1971
    ...S.W.2d 548 (1939). [4] Miller v. Alvey (1965), 246 Ind. 560, 207 N.E.2d 633; White v. Evansville American Legion Home Association (1965), 247 Ind. 69, 210 N.E.2d 845. [5] A 'contract of adhesion' is a standarized contract imposed and drafted by party of superior bargaining strength who rele......
  • 358 N.E.2d 184 (Ind.App. 1 Dist. 1976), 2--375A53, Frankfort v. Owens
    • United States
    • Indiana Court of Appeals of Indiana
    • December 22, 1976
    ...mandatory instructions such as those tendered Page 194 by Frankfort, supra. In the case of White v. Evansville American Home Ass'n (1965), 247 Ind. 69, 210 N.E.2d 845, the court therein at pp. 847--848 said: [171 Ind.App. 581] 'Mandatory instructions are not the best type of instructions to......
  • Request a trial to view additional results