Conley v. Lothamer, 471A73

• Citation: 276 N.E.2d 602,150 Ind.App. 356
• Decision Date: 23 December 1971
• Docket Number: No. 1,No. 471A73,471A73,1
• Parties: Marilyn J. CONLEY, Plaintiff-Appellant, v. Jeannene J. LOTHAMER, Defendant-Appellee
• Court: Indiana Appellate Court

Page 602

276 N.E.2d 602

150 Ind.App. 356

Marilyn J. CONLEY, Plaintiff-Appellant, v. Jeannene J. LOTHAMER, Defendant-Appellee.

No. 471A73.

Appellate Court of Indiana, Division No. 1.

Dec. 23, 1971.

Rehearing Denied Jan. 25, 1972.

Robert L. Thompson, Jr., James R. Solomon, Hoffman, Moppert, Solomon & Miller, Fort Wayne, Winslow Van Horne, Van Horne & Van Horne, Auburn, for plaintiff-appellant.

Thomas W. Yoder, Edward L. Murphy, Jr., Livingston, Dildine, Haynie & Yoder, Fort Wayne, for defendant-appellee.

SULLIVAN, Presiding Justice.

The action below was brought to recover damages for personal injuries sustained by plaintiff-appellant while riding as a farepaying passenger in defendant-appellee's automobile. It was tried before a jury, and judgment was entered upon a verdict for defendant-appellee.

The pertinent facts are as follows:

In the fall of 1968, plaintiff-appellant obtained employment at Sheller-Globe Manufacturing Company located in Grabill, Indiana. In order to obtain transportation to and from work each day, plaintiff-appellant obtained a list of other Sheller-Globe employees who lived in her hometown, St. Joe, Indiana. From this list she selected defendant-appellee's name. Subsequently, an agreement was reached between the two parties whereby plaintiff-appellant agreed to compensate defendant-appellee at the rate of fifty cents per day for round-trip transportation.

On February 6, 1969, the day of the accident, it was snowing. Shortly after 3:00 p.m., the parties began the return trip from work to St. Joe. By this time the snowing had diminished and had begun to turn to slush. The record substantiates that the road was quite slick in spots.

The incident in question occurred on State Road No. 1 in the vicinity of its intersection with County Road No. 64 near Spencerville, Indiana. Plaintiff-appellant testified that the posted speed limit on State Road No. 1 was 60 miles per hour, and admitted to the best of her knowledge that defendant-appellee operated her automobile within the speed limits at all times.

The curve on which the accident took place had an advisory sign warning against speed over 50 miles per hour. The record shows that defendant-appellee approached the curve at approximately 45 miles per hour and, while negotiating it, hit a slick spot, slid off the road and hit a utility pole. As a consequence, plaintiff-appellant sustained a moderately servere fracture dislocation of the cervical vertebrae requiring hospitalization for three months. She was not permitted by her doctor to return to work until January 15, 1970.

NO QUESTION RAISED ON APPEAL BY ASSIGNING ERROR WHEN ISSUES ARE NOT PRESENTED IN ARGUMENT SECTION OF APPELLANT'S BRIEF

It is well-settled law in this state both under the new Rules of Procedure and prior law that specifications of error raised on appeal shall be set forth in the argument section of appellant's brief. Rule AP. 8.3(A)(7); Hambey v. Hill (1971) Ind.App., 269 N.E.2d 394. Plaintiff-appellant assigned four specifications in her Motion to Correct Error but has here argued only two. The remaining issues are thus waived.

NO ERROR PRESERVED WITH REFERENCE TO PLAINTIFF-APPELLANT'S OBJECTION TO 'UNAVOIDABLE ACCIDENT' INSTRUCTION

Plaintiff-appellant assigns as error the giving of Instruction No. 2 tendered by defendant which reads as follows:

"The law permits no recovery for damages resulting from an unavoidable accident.

You are instructed that an unavoidable accident has been defined to be an occurrence or happening which under all of the attendant circumstances and conditions could not have been foreseen or prevented by using ordinary care. So in this case, if you find by a preponderance of the evidence that the accident in question was one which could not have been foreseen or prevented by the defendant, Jeannene J. Lothamer, in the exercise of ordinary care, then you may find that this was an unavoidable accident."

Plaintiff made the following objection:

'Plaintiff objects to defendant's tendered instruction No. 2 for the reason that there is no evidence to which said instruction would be applicable.'

We agree with plaintiff-appellant's contention that it has been consistently held improper for the court to tender a 'pure accident' or 'unavoidable accident' instruction to the jury. Such expressions do not connote affirmative defenses, and can serve no other purpose than to confuse the jurors. Miller v. Alvey (1965) 246 Ind. 560, 207 N.E.2d 633; Qualls v. J. C. Penney Co. (1969) 144 Ind.App. 276, 245 N.E.2d 860.

In the instant case, while recognizing that such an instruction normally cosntitutes ground for reversal if the error is preserved, we cannot reverse here for the reason that plaintiff-appellant failed to object properly under the mandate of Trial Rule 51(C), which requires that an objection must clearly indicate the grounds upon which the objection is based as well as the subject matter pertaining thereto. Thus, no question is presented for this court to determine in connection with the merits of the 'unavoidable accident' instruction.

Plaintiff-appellant argues that Wilson Freight Co. v. Scheurich (1968) 143 Ind.App. 53, 238 N.E.2d 25 (transfer denied 241 N.E.2d 142), sustains the merit of her objection. The language relied upon by plaintiff-appellant appears in a concurring opinion denying transfer. That case as decided by the Appellate Court held an 'unavoidable accident' instruction to be not improper by reason of the particular phrasing used which: 'would not have the tendency to confuse lay jurors, as they were not required to determine if the accident in question was unavoidable but they were merely required to determine if the accident could have been foreseen and prevented by the use of ordinary care.' 143 Ind.App. 53, 61, 238 N.E.2d 25, 29. Upon transfer, the opinion concurring in the denial of transfer, by a two-line order, merely stated that the Appellate Court had misconstrued an earlier decision and the two concurrers recited a belief that: 'there are factual situations which might possibly require the submission of a proper instruction on 'unavoidable accident' if the evidence in a given case would warrant its submission.' 241 N.E.2d 142, 143. This obiter dictum in no way concerns the propriety of a general objection, nor does it speak to the preservative nature of an objection allegedly specific enough to meet the requirements of Trial Rule 51(C) merely because it makes reference to the evidence before the court. ¹

Plaintiff-appellant further argues that this court in Qualls v. J. C. Penney Co., supra, voiced its approval of an objection to an 'unavoidable accident' instruction which, she claims, was no more specific than the one before us. The objection there read as follows:

'The Plaintiff will object to Defendant's tendered instruction number two in the Virginia Agnes Qualls case; and these will all be on the Virginia Agnes Qualls case, all of our objections; instruction number two on the grounds that it amounts to a mere accident instruction, and that there is no need to instruct the jury on more accident and it is error to do so.' (Emphasis supplied) 245 N.E.2d at 864.

We cannot agree with plaintiff-appellant. In Qualls, the appellee did not question the sufficiency of appellant's objection but rather contended that the instruction did not fall within the ambit of the prohibition against 'mere,' 'unavoidable' or 'pure accident' instructions because it did not contain the word 'pure' or 'mere' or 'unavoidable.' The court summarily dismissed such contention, and in our minds did so correctly. Plaintiff-appellant herein contends that the opinion in Qualls failed to comment on the adequacy of the objection only because of its preoccupation with condemning any sort of 'accident' instructions. Be that as it may, the...