Merriman v. Kraft

• Decision Date: 18 December 1968
• Docket Number: No. 667A20,No. 1,667A20,1
• Citation: 144 Ind.App. 33,242 N.E.2d 526
• Parties: Carita MERRIMAN, Appellant, v. Marion H. KRAFT, Appellee
• Court: Indiana Appellate Court

Page 526

242 N.E.2d 526

144 Ind.App. 33

Carita MERRIMAN, Appellant, v. Marion H. KRAFT, Appellee.

No. 667A20.

Appellate Court of Indiana, Division No. 1.

Dec. 18, 1968.

Rehearing Denied Jan. 22, 1969.

Bamberger, Foreman, Oswald & Hahn, Evansville, for appellant.

John H. Jennings, Harold M. Wilson, Jr., Ross E. Myers, Evansville, for appellee.

CARSON, Chief Justice.

This appeal comes from the Vanderburgh Superior Court, wherein plaintiff-appellee, Marion H. Kraft, filed this action against defendant-appellant, Carita Merriman and defendant-appellee, Firestone Tire and Rubber Company, to recover for personal injuries allegedly sustained when he, as a pedestrian, was struck by an automobile being driven by Carita Merriman. Appellee, Kraft's complaint contains three (3) legal paragraphs. Paragraph I, thereof, alleges a cause of action against both defendants as joint tortfeasors. Paragraph II of the complaint, is directed against appellant, Merriman, alone, upon the theory of res ipsa loquitur. Paragraph III of the complaint, alleges a cause of action against appellee, Firestone, alone, upon the theory of breach of warranty.

Appellee, Firestone, filed answer in admission and denial to Paragraphs I and III of the complaint, under Rule 1--3 of the Rules of the Supreme Court of Indiana. Appellant, Merriman, likewise filed answer in admission and denial to Paragraphs I and II of the complaint, thus forming the issues.

Trial was by jury, which returned a verdict for appellee, Kraft, against appellant, Merriman and for Appellee, Firestone, on Paragraph I of the complaint; for appellee, Kraft and against appellant, Merriman on Paragraph II; and, for appellee, Firestone, against appellee, Kraft, on Paragraph III. Damages were assessed against appellant, Merriman, in favor of appellee, Kraft, in the sum of Thirty Thousand ($30,000) Dollars and consistent judgment was entered. Appellant filed her motion for a new trial, which was overruled. That ruling constitutes the sole assigned error on appeal.

Appellee, Firestone, filed a timely motion in this court, to dismiss the appeal as to it. Pursuant to our finding that appellee, Firestone was neither a necessary or proper party to this appeal, we sustained the motion. Carita Merriman v. Marion H. Kraft and Firestone Fire and Rubber Company (1968), Ind.App., 239 N.E.2d 609.

Appellant's motion for a new trial, contains fifty-four (54) specifications of error. As only causes numbered 1, 2, 17, 19, 30, 34, 35, 37, 39 and 44 are argued by appellant, the rest are waived. Rule 2--17, Rules of the Supreme Court of Indiana.

Under Specification No. 34, of appellant's motion for a new trial, she charges error in the giving of appellee, Kraft's Instruction No. 9, which purported to instruct the jury upon the doctrine of res ipsa loquitur. We agree. Appellee, Kraft's Instruction No. 9, which the court tendered to the jury, reads as follows:

'The Court instructs the jury that the law permits the inference of negligence to be drawn against a defendant under certain sets of facts known as res ipsa loquitur, which means 'the thing speaks for itself'. This legal principle is properly applied to a situation where the injuring instrumentality is shown to be under the exclusive control of the defendant and the accident is one which under the circumstances does not ordinarily happen if the person controlling the instrumentality uses reasonable care.

In such a case the happening of an accident from which an injury results creates a presumption of negligence and shifts to the defendant the burden of proving that it was not caused through any lack of reasonable care on his part.

'I further instruct you that under the rule of res ipsa loquitur the inference of negligence which is drawn from the facts is placed in the scales to be weighed with any and all explanations offered by the defendant. This inference of negligence does not vanish when the defendant comes forward with an explanation, or explanations, but on the contrary stays in the case to be considered by the jury with all the other evidence.'

Appellant's objection to the above instruction, reads in part, as follows:

'7. The third sentence of Paragraph I of Instruction No. 9 is an incorrect and erroneous statement of the law for the reason that where the doctrine of res ipsa loquitur is applicable it does not 'create a presumption of negligence' but only an inference of negligence.

'8. The defendant, Carita Merriman, further objects to the third sentence of Paragraph I of Instruction No. 9 for the reason that the statement that when the doctrine of res ipsa loquitur is applicable the burden of proving that the accident was not caused through any lack of care on the part of the defendant is an erroneous and incorrect statement of the doctrine. When the doctrine is applicable it merely shifts the burden to the defendant of coming forward with evidence of explanation. The...