Carbon v. Johnson, No. 20483

Docket NºNo. 2
Citation228 N.E.2d 52, 141 Ind.App. 369
Case DateJuly 20, 1967
CourtCourt of Appeals of Indiana

Page 52

228 N.E.2d 52
141 Ind.App. 369
Miller CARBON, Special Administrator of the Estate of
Stanley Garrett, Deceased, Appellant,
v.
Luther G. JOHNSON, Administrator of the Estate of Ocy
Collier, Deceased, Appellee.
No. 20483.
Appellate Court of Indiana, Division No. 2.
July 20, 1967.

[141 Ind.App. 370]

Page 54

Cox, Zwerner, Gambill & Sullivan, Terre Haute, for appellant.

Mann, Mann, Chaney, Johnson & Hicks, Terre Haute, for appellee.

[141 Ind.App. 371] PFAFF, Chief Justice.

On August 10, 1963, the appellee's decedent, Ocy Collier, was operating her vehicle in a westerly direction on U.S. Highway No. 36 when her vehicle collided with the vehicle of appellant's decedent, Stanley Garrett, which was being operated in an easterly direction.

The evidence shows that neither the appellant's decedent nor the appellee's decedent was carrying any passengers at the time of the collision and no one witnessed the collision. The evidence further shows that the collision occurred at a point on U.S. Highway No. 36, approximately one mile east of its intersection with State Road No. 71. U.S. Highway No. 36, at the scene of the collision and for some miles west thereof, was a straight, level, two lane highway providing one lane for west bound traffic and one lane for east bound traffic.

Photographs were taken at the scene of the accident and introduced into evidence at the trial without objection. The photographs depicted skid marks from all four wheels of the appellee's decedent's vehicle, but failed to portray any skid marks from the vehicle of the appellant's decedent.

The result of a blood analysis was introduced into evidence and showed that at the time of the accident appellant's decedent had .22% alcohol in his blood system.

The issue of appellant's decedent's negligence was submitted to the jury and out of necessity, the jury had to rely upon the photographs of the skid marks and the damage to both automobiles to determine the question of liability. Based upon the evidence, the jury returned a verdict in favor of the appellee, luther G. Johnson, in the amount of $27,500.00. It is from this verdict that this appeal arises.

The appellant alleges in his assignment of errors that the trial court erred in overruling his motion for a new trial. More specifically, he contends that the trial court erred in giving appellee's Instruction No. 27 which reads as follows:

'Evidence that there was, at that time, five hundredths per cent (.05%) or less, by weight of alcohol in his blood, is prima facie evidence that the defendant was not under [141 Ind.App. 372] the influence of intoxicating liquor sufficiently to lessen his driving ability within the meaning of the statutory definitions of the offenses. Evidence that there was, at the time, from five hundredths per cent (.05%) to fifteen hundredths per cent (.15%) by weight of alcohol in his blood is relevant but it is not be given prima facie effect in indicating whether or not the defendant was under the influence of intoxicating liquor within the meaning of

Page 55

this act. Evidence that there was, at the time, fifteen hundredths percent, (.15%) or more, by weight of alcohol in his blood, is prima facie evidence that the defendant was under the influence of intoxicating liquor sufficiently to lessen his driving ability within the meaning of the statutory definitions of the offenses.'

Appellant further contends that parts of Burns' Ind.Stat., 1965 Replacement, §§ 47--2001 and 47--2003 are quoted in above said instruction. Section 47--2001, supra, makes it a criminal offense to drive under the influence of intoxicating liquor while Section 47--2003, supra, states the presumptive weight to be given to the results of a blood analysis as evidence of the crime of driving under the influence of intoxicating liquor. The appellant argues that the inclusion of these criminal statutes injected a wholly extraneous and highly prejudicial criminal element into this civil cause which would confuse and prejudice the jury.

It is well settled that technical errors in instructions are harmless and will not cause a reversal where the interests of the complaining party have not been prejudiced thereby. 2 I.L.E., Appeals, § 627, p. 657; Engle v. Cleveland, etc., R. Co. (1925), 197 Ind. 263, 149 NE. 643; Indiana Union Traction Co v. Maher (1911), 176 Ind. 289, 95 N.E. 1012; The M. S. Huey Co. v. Johnston (1905), 164 Ind. 489, 73 N.E. 996.

It is the opinion of this court that the interests of the appellant were not prejudiced by the giving of appellee's Instruction No 27. Even if the appellant's interests were prejudiced by the giving of said instruction, the defect, if any, was cured and all prejudice eliminated by the giving of appellee's[141 Ind.App. 373] Instruction No. 5 and appellant's Instruction No. 16, which read as follows:

'Appellee's Instruction No. 5.

'If you find from the evidence that defendant's decedent, Stanley Garrett, was intoxicated, or under the influence of intoxicating liquor at the time of the collision and death alleged in plaintiff's complaint, and that, by reason of such intoxication or influence of intoxicating liquor, Stanley Garrett failed to exercise the care and caution that an ordinarily prudent, sober person would exercise, under like or similar circumstances, and that the failure to exercise that degree...

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7 practice notes
  • Shelby Nat. Bank v. Miller, No. 1169A200
    • United States
    • Indiana Court of Appeals of Indiana
    • June 15, 1970
    ...it was the duty of the trial court to give the instruction precisely as requested there is no error in its refusal. Carbon v. Johnson, 141 Ind.App. 369, 228 N.E.2d 52 There is no reversible error in refusing to give instructions as to elements not within the issues even though they state a ......
  • Northern Indiana Public Service Co. v. Otis, 468A78
    • United States
    • Indiana Court of Appeals of Indiana
    • August 27, 1969
    ...duty of the trial court to give the instruction precisely as requested, there is no error in its refusal. Carbon v. Johnson, Ind.App., 228 N.E.2d 52 There is no reversible error in refusing to give instruction as to elements not within the issues even though they state an abstract propositi......
  • Berger v. Peterson, 3-285A34
    • United States
    • Indiana Court of Appeals of Indiana
    • October 22, 1986
    ...226 Iowa 211, 283 N.W. 895; Oechsle v. Hart (1967), 12 Ohio St.2d 29, 231 N.E.2d 306. 2 The Bergers cite Carbon v. Johnson (1967), 141 Ind.App. 369, 228 N.E.2d 52 where a similar instruction was properly refused because excuse and justification were not defined. The mere fact that a tendere......
  • Scott v. Krueger, 471A59
    • United States
    • Indiana Court of Appeals of Indiana
    • March 28, 1972
    ...in the framework of criminal law has no place in a civil damages suit. In the case of Carbon, Spec. Admr. v. Johnson, Admr. (1967), 141 Ind.App. 369, 228 N.E.2d 52, a case where the drivers of the two respective automobiles were killed in a head-on collision and there was a question as to o......
  • Request a trial to view additional results
7 cases
  • Northern Indiana Public Service Co. v. Otis, No. 468A78
    • United States
    • Indiana Court of Appeals of Indiana
    • August 27, 1969
    ...duty of the trial court to give the instruction precisely as requested, there is no error in its refusal. Carbon v. Johnson, Ind.App., 228 N.E.2d 52 There is no reversible error in refusing to give instruction as to elements not within the issues even though they state an abstract propositi......
  • Shelby Nat. Bank v. Miller, No. 1169A200
    • United States
    • Indiana Court of Appeals of Indiana
    • June 15, 1970
    ...it was the duty of the trial court to give the instruction precisely as requested there is no error in its refusal. Carbon v. Johnson, 141 Ind.App. 369, 228 N.E.2d 52 There is no reversible error in refusing to give instructions as to elements not within the issues even though they state a ......
  • Berger v. Peterson, No. 3-285A34
    • United States
    • Indiana Court of Appeals of Indiana
    • October 22, 1986
    ...226 Iowa 211, 283 N.W. 895; Oechsle v. Hart (1967), 12 Ohio St.2d 29, 231 N.E.2d 306. 2 The Bergers cite Carbon v. Johnson (1967), 141 Ind.App. 369, 228 N.E.2d 52 where a similar instruction was properly refused because excuse and justification were not defined. The mere fact that a tendere......
  • Scott v. Krueger, No. 471A59
    • United States
    • March 28, 1972
    ...in the framework of criminal law has no place in a civil damages suit. In the case of Carbon, Spec. Admr. v. Johnson, Admr. (1967), 141 Ind.App. 369, 228 N.E.2d 52, a case where the drivers of the two respective automobiles were killed in a head-on collision and there was a question as to o......
  • Request a trial to view additional results

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