Hinkley v. Montgomery Ward, Inc.

• Decision Date: 16 September 1986
• Docket Number: No. 3-1284A333,3-1284A333
• Parties: Judith HINKLEY, Richard Hinkley, Mary Hellemn and Betty Hellemn, Plaintiffs- Appellants, v. MONTGOMERY WARD, INCORPORATED, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 255

497 N.E.2d 255

Judith HINKLEY, Richard Hinkley, Mary Hellemn and Betty

Hellemn, Plaintiffs- Appellants, v. MONTGOMERY WARD, INCORPORATED, Defendant-Appellee.

No. 3-1284A333.

Court of Appeals of Indiana,

Third District.

Sept. 16, 1986.

Rehearing Denied Dec. 16, 1986.

Harry A. Wilson, Jr., Wilson & Kehoe, John M. Choplin, II, Michelle A. Spahr Norris, Choplin & Johnson, Indianapolis, John C. Grimm, Grimm & Grimm, Auburn, for plaintiffs-appellants.

John D. Walda, Ronald J. Ehinger, Barrett, Barrett & McNagny, Fort Wayne, for defendant-appellee.

GARRARD, Judge.

The appellant-plaintiffs, Judith and Richard Hinkley and Mary and Betty Hellemn appeal from a jury verdict in favor of the appellee-defendant, Montgomery Ward, Incorporated (Montgomery Ward).

The Hinkleys were in the business of hauling milk from local dairy farms to County Line Cheese. They used several vehicles in their business, including a 1978 Ford truck which was registered as having a gross weight of 30,000 pounds. In late March of 1979, Judith Hinkley purchased a new right front tire for the Ford truck from Montgomery Ward. The tire was mounted and checked by a Montgomery Ward employee.

On April 1, 1979, while enroute to their first milk pick up, the truck crashed into a guardrail and eventually landed upside down on an abandoned railroad right-of-way below the bridge. Judith Hinkley and her cousin, Mary Hellemn, who were passengers in the truck, were seriously injured. Judith's stepson, Mark Hinkley, the driver of the truck, was killed. Mark was sixteen years old and held only a learner's permit. While some evidence was presented at trial to indicate that the driver of the truck was required to have a chauffeur's license, neither Mark nor Judith Hinkley held such a license.

Evidence as to the cause of the crash was conflicting at trial. In a two part complaint, one in products liability, the other in breach of warranty, the appellants contended that the right front tire blew out and caused the truck to collide with the guardrail. Only the right front tire was flat after the collision. In defense, Montgomery Ward claimed that the clean, C-shaped cut in the tire tread indicated that the tire went flat because of the contact with the guardrail. In a general verdict, the jury found against the appellants on both counts.

On appeal, the appellants cite as error the giving of an instruction tendered by Montgomery Ward, Final Instruction No. 17A, which is as follows:

"At the time of the happening of the accident described in the complaint, there was in full force and effect in the State of Indiana certain statutes the applicable provisions of which read as follows:

"(1) IC 9-1-1-2

'The following words and phrases, when used in chapters 1 through 4 of this article shall, for the purpose of chapters 1 through 4 of this article, have the meanings respectively ascribed to them in this section, except in those instances where the context clearly indicates a different meaning:

(aa) Chauffeur.--every person:

(i) employed by another for the principal purpose of operating a motor vehicle registered as having a gross weight of 16,000 pounds or more for the purpose of transporting property;

(ii) operating a motor vehicle registered as having a gross weight of 16,000 pounds, or more, for the purpose of transporting property for hire; or

(iii) operating a private bus as defined in IC 9-4-1-2.'

(2) IC 9-1-4-26

'No Person shall drive a motor vehicle as a chauffeur unless he holds a valid chauffer's (sic) license. No person shall receive a chauffeur's license unless and until he surrenders to the department any operator's license issued to him.'

(3) IC 9-1-4-29

'A chauffeur's license sahll (sic) not be issued to any person under 18 years of age.'

The Indiana legislature, in adopting the above statutes, has declared that persons under the age of 18 do not possess the requisite care and judgment to operate motor vehicles on public highways as chauffeurs without endangering the lives and limbs of others.

You may consider these statutes in determining whether or not the decedent, Mark Hinkley, misused the truck tire in question."

We agree that the giving of Final Instruction No. 17A was error.

In reviewing assignments of error dealing with jury instructions, this court will make three inquiries: Whether the instruction correctly states the law; whether there is evidence within the record to support the giving of the instruction; and whether the subject of the tendered instruction was adequately covered by other instructions given. Shelby Federal Savings and Loan Ass'n v. Doss (1982), Ind.App., 431 N.E.2d 493, 501. It is well settled that the trial court commits error in instructing the jury on propositions of law not pertinent to the issues or applicable to the evidence. Power v. Brodie (1984), Ind.App., 460 N.E.2d 1241, 1243.

Initially, the appellants claim that the instruction is an incorrect statement of the law because the lack of a chauffeur's license is not pertinent to the issues or applicable to the evidence. Generally, the weight of authority is to the effect that, since the operator's negligence is to be determined by the facts existing at the time of the accident, mere lack of an operator's license is not in itself evidence of negligence in the operation of the motor vehicle unless there is some causal connection between the injury and the failure to have the license. Annot., 29 A.L.R.2d 963, 970 (1953). See also Opple v. Ray (1935), 208 Ind. 450, 455, 195 N.E. 81, 83; Shaw v. Hart (1964), 136 Ind.App. 567, 569, 202 N.E.2d 587, 588. It is proper to submit to the jury the question of the causal connection between the manner of the operation of the vehicle by such a driver and the collision. Garatoni v. Teegarden (1958), 129 Ind.App. 500, 510, 154 N.E.2d 379, 384. However, unless a causal connection between the injuries and the failure to have a license is shown, the lack of a license is immaterial. Shaw v. Hart, supra, 202 N.E.2d at 588.

In this case, Montgomery Ward presented some evidence from which to infer that the truck was driven into the guardrail and that the cause was not a flat tire. However, no evidence was presented which would indicate a causal connection between the injuries and the failure to have a chauffeur's license. Therefore, Mark Hinkley's failure to have a chauffeur's license was immaterial, and the trial court committed error in instructing the jury on a proposition of law not pertinent to the issues.

In addition, even if evidence had been presented which would indicate that lack of a chauffeur's license caused the injuries, Hinkley's failure to have a license was not pertinent to the defense of misuse. The court instructed the jury that they could consider these statutes in determining whether Mark Hinkley misused the truck tire. Misuse is part of assumption of risk. Fruehauf Trailer Division v. Thornton (1977), 174 Ind.App. 1, 11, 366 N.E.2d 21, 29. A consumer who incurs or assumes the risk of injury by virtue of his continuing use of a product after detecting a defect or who uses a product in contravention of a legally sufficient warning, misuses the product, and in the context of the defense of incurred or assumed risk, is subject to the defense of misuse. Perfection Paint and Color Company v. Konduris (1970), 147 Ind.App. 106, 119, 258...