Carbon v. Johnson

• Decision Date: 20 July 1967
• Docket Number: No. 2,No. 20483,20483,2
• Parties: 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
• Court: Indiana Appellate Court

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.

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

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

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 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 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 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 of care proximately caused the death of Ocy Collier, then such action on the part of Stanley Garrett would constitute negligence.'

'Appellant's Instruction No. 16.

'You are instructed that Luther Johnson, Administrator of the Estate of Ocy Collier, deceased, cannot recover damages because of a violation by Stanley Garrett, deceased, of a statute of the State of Indiana, unless such violation is found to constitute negligence and unless such negligence, if any, is found to be a proximate cause of the collision and resulting death of Ocy Collier, deceased.'

The appellant further alleges that the trial court erred when it permitted the admission into evidence of the results of an alcoholic content test, made upon a blood sample taken from the appellant's decedent after he had died and without the consent of the decedent's heirs. Appellant contends that the court's action violated the constitutionally guaranteed rights of involving search and seizure and due process of law as respectively set forth in the Fourth and Fourteenth Amendments of the Constitution of the United States and the constitutional right to be secure in his effects as safeguarded by Article I, Section II of the Indiana Constitution.

A problem similar to the one at bar has recently been discussed in Ravellette v. Smith, 300 F.2d 854 (7 Cir., 1962), in which the court at page 857 stated:

'The law, frequently expressed, is that the rights guaranteed by the search and seizure provisions of state and federal Constitutions are personal rights. Davis v. Brooks Transportation Co., D.C., 186 F.Supp. 366; Lovette v. United States, 5 Cir., 230 F.2d 263. Decedent's right, being personal, could not survive his death and cannot validly be urged by plaintiff. * * *'

It is the opinion of this court that the case at bar falls within the ambit of the rule of law as set forth in the Ravellette case.

This court having examined the record also finds that appellant was not denied his constitutional right of due process of law by the admission into evidence of the blood test.

The appellant also assigns as error the failure of the trial court to direct a verdict in his favor. He contends that the evidence established that appellee's decedent was guilty of contributory negligence by reason of having violated the provisions of Burns' Ind.Stat., §§ 47--2010, 47--2011 and 47--2015. The evidence referred to by appellant was a photograph which depicted a skid mark supposedly from the appellee's decedent's vehicle one foot across the center line. The above mentioned statutes require drivers to operate their vehicles on the right side of the highway, with certain exceptions.

It is true that a violation of §§ 47--2010 and 47--2011, supra, is prima facie evidence of negligence. Hancock Truck Lines v. Butcher (1950), 229 Ind. 36, 94 N.E.2d 537; Gamble v. Lewis (1949), 227 Ind. 455, 85 N.E.2d 629. In Freeport Motor Casualty Co. v. Chafin (1960), 131 Ind.App. 362, at page 369, 170 N.E.2d 819, at page 822, this court said:

'However, if the evidence discloses a compliance * * * with the terms of the statute was impossible because of circumstances beyond the control of the one charged with violating the statute, and there is no evidence of negligence on his part, such provides a legal excuse, precluding liability for injuries resulting from the failure to comply with the statute. Larkins v. Kohlmeyer, 1951, 229 Ind. 391, 98 N.E.2d 896; Thompson v. Ashba, 1951, 122 Ind.App. 58, 102 N.E.2d 519. Such proof overcomes the prima facie evidence of negligence. This is a question of fact which should be presented to a jury or to the court as the...