Dunbar v. Demaree

• Decision Date: 02 July 1936
• Docket Number: 15197.
• Parties: DUNBAR et al. v. DEMAREE et al.
• Court: Indiana Appellate Court

2 N.E.2d 1003

102 Ind.App. 585

DUNBAR et al. v. DEMAREE et al.

No. 15197.

Appellate Court of Indiana, in Banc.

July 2, 1936

[Copyrighted Material Omitted]

Appeal from Rush Circuit Court; John A. Titsworth, Judge.

Action by Carl Demaree against Russell Dunbar, the Ripley County Bank of Osgood, and another. From a judgment for plaintiff against named defendants, the latter appeal.

Affirmed.

John H. Kiplinger, of Rushville, August A. Rendigs, Jr., of Cincinnati, Ohio, and Jean R. Kiplinger, of Rushville, for appellants.

Wickens & Wickens and Tremain & Turner, all of Greensburg, and Titsworth & Titsworth, of Rushville, for appellees.

KIME Chief Judge.

This was an appeal from a judgment of $7,500 in favor of the appellee Demaree and against the appellants Dunbar and the Ripley County Bank of Osgood, Ind. The appellee Demaree filed a complaint in one paragraph against the two appellants, and Dwenger who was named as an appellee. All of the parties defendant filed separate answers in general denial. Prior to the filing of the general denials the appellants had filed separate motions to have the complaint made more specific which had been overruled. Following the pleas of general denial, the two appellants asked leave to withdraw their answers of general denial and tendered pleas in abatement. The applications to withdraw their answers were denied. The cause was tried to a jury on the issues raised by the complaint and the answers in general denial, and the jury returned a verdict in the sum above indicated.

The appellants separately filed motions for a new trial and separately assign as error here the overruling of their separate motions for new trials and error of the court in overruling their separate motions to make the complaint more specific and error in overruling their applications for the withdrawal of their answers in general denial and error of the court in refusing to sustain the motions to dismiss filed by both of the appellants. The motions for new trial of the appellants Dunbar and the Ripley County Bank of Osgood, Ind., contained 121 assignments and 119 assignments, respectively. Many of these are not discussed under their propositions, points, and authorities, however, 25 separate assignments are discussed which makes 50 assignments in all. Most of these are the same in their effect as to each party and unless specifically designated will be so discussed herein.

The appellee Dwenger filed a motion to dismiss this appeal as to him which was sustained.

The evidence most favorable to the appellee Demaree is as follows. It appears that Demaree was an employee of Dwenger and upon this particular morning in question had assisted Dwenger in the loading of some 80-foot piling upon Dwenger's truck and trailer to be transported to a neighboring town. They were assisted in the loading by the owners of the piling who had employed Dwenger to transport it for them. It also appears that Dwenger was not operating under the Workmen's Compensation Law of this state. After loading the piling upon the truck and trailer, Dwenger and Demaree were proceeding upon their journey when in rounding a wide curve in the highway, at a speed of 15 miles per hour, the appellee Demaree saw approaching the automobile driven by the appellant Dunbar and called the attention of his employer (who was driving the truck) to the approach of Dunbar's automobile.

The evidence again most favorable to appellee further discloses that the automobile of Dunbar was approaching the truck of Dwenger at approximately 65 miles per hour, and that as he approached he waved his hand and spoke to a person on nearby premises and that his car, in rounding the curve, did not stay within the half of the paved roadway designated for traffic driven in that direction, but drove over and upon the portion ordinarily reserved for traffic driven in the opposite direction from which the automobile was being driven by Dunbar. The automobile driven by Dunbar continued upon that side of the roadway until there was a head-on collision with the truck driven by Dwenger. The appellee Demaree was riding in the cab of the truck on the right of his employer who was occupying the driver's seat on the left; that as a result of the collision the piling were forced against and through the rear of the cab and as a result thereof the appellee Demaree received serious injuries.

As to the appellants' cause in the motion for the new trial, that the verdict is not sustained by sufficient evidence, we will say that we believe the evidence is ample to sustain such verdict, and there is no reversible error in this particular.

The appellants also complain of the refusal of the court to allow them to withdraw their answers in general denial and file separate pleas in abatement. They contend that such leave should have been granted because the appellee Demaree fraudulently alleged that Dwenger was guilty of negligence in that Dwenger turned the front wheels of his truck toward the left-hand side of the road and by so doing negligently caused the accident which resulted in the injuries to Demaree, and that Demaree made such fraudulent allegation for the purpose of bringing the action in the county in which Dwenger resided when the residence of the other two appellants was in a different county. This was not the only charge of negligence in the complaint and while it might have been a specific charge it was later followed by a general charge and in this particular stage of the proceeding there was no error in the trial court exercising its discretion in refusing to allow the appellant to withdraw their answers in general denial in order that they might file separate pleas in abatement.

The appellants do not discuss the alleged errors in overruling the motion of Russell Dunbar to make the complaint more specific nor in overruling their separate motions to dismiss the complaint, and hence these will not be discussed.

The appellants complain of the giving of instruction numbered 3 by the court of its own motion. In this instruction the court told the jury that they could have the complaint and answers to take with them into the jury room; that they should not consider the complaint and answers as evidence, and that such documents could be taken in the jury room only for the purpose of " ascertaining whether or not the material allegations of the complaint have all been established by the evidence." The appellants contend that this placed upon them the burden of establishing, by the evidence, their answers in general denial, but since the jury was fully instructed on the burden of proof, and where it lay, to wit, on the plaintiff to prove the allegations of his complaint, we do not believe that the jury could have been misled by such language; consequently, the court did not err in giving this instruction.

The appellants also complain of instruction numbered 5 given by the court of its own motion. This was an instruction defining ordinary care, and while it was not a model it did define ordinary care in language similar to that requested by appellants themselves. In view of the fact that the jury was instructed at some length as to care necessary, we do not believe this instruction was erroneous.

The appellants next complain of the giving of instruction numbered 6 on the court's own motion and the refusal to give instruction numbered 6 requested by both of the appellants. The instruction given by the court said, " this action is founded upon the alleged negligence of defendants Dunbar and Dwenger," and then went on to define negligence. The appellants say that the words " this action" consists of all pleadings, all issues, all evidence that was admitted, and all the instructions of the court, and is not limited to the alleged negligence of Dunbar and Dwenger, but we do not believe that the jury was misled when the court said that " this action" was founded upon the alleged negligence of these defendants. The instruction tendered by the appellants numbered 6 was of the same legal effect as the balance of the instruction given by the court, but did not contain any reference to the negligence of the other defendant, Dwenger, and consequently was properly refused.

Appellants also complain of the giving by the court on its own motion of instruction numbered 7, which reads as follows: " Contributory negligence may be defined to be negligence on the part of the injured person, which caused, or partly caused his injuries. If an injured person does or omits to do some act or thing, which a reasonably careful and prudent person would have done, or omitted to do, under the same circumstances, and said act or omission caused, or partly caused or contributed to his injuries, this is contributory negligence." The appellants contend that this instruction was erroneous and cite as authority therefor the case of Andrews v. Palmer (1926) 85 Ind.App. 354, 154 N.E. 34.The court there said that since it was unable to determine that a correct result was reached it could not say that error in giving that instruction was harmless. The two instructions are not in identical language, but conceding that the instruction there given was erroneous in view of the fact that the correct result was not reached, we are of the opinion that even though it might be said to be erroneous in the case at bar it was not prejudicial to the appellants, since a correct result was reached. This instruction states substantially the correct rule, and while it should not be used as a model to hold that it was not correct would be a mere quibbling over words too technical to warrant serious consideration.

Appellants next complain of instruction numbered 9 given by the court on its own motion. This instruction says, in effect, that if ...