Miller v. Alvey

• Decision Date: 17 December 1963
• Docket Number: No. 19704,No. 2,19704,2
• Parties: Holman MILLER, Appellant, v. Russell ALVEY, Appellee. Katherine MILLER, Appellant, v. Russell ALVEY, Appellee. 194 N.E.2d 747 . Division
• Court: Indiana Appellate Court

Page 747

194 N.E.2d 747

Holman MILLER, Appellant, v. Russell ALVEY, Appellee.

Katherine MILLER, Appellant, v. Russell ALVEY, Appellee.

No. 19704.

194 N.E.2d 747

Appellate Court of Indiana. Division No. 2.

Dec. 17, 1963.

Rehearing Denied Jan. 15, 1964.

Opinion Superseded 207 N.E.2d 633.

John H. Jennings, Harold M. Wilson, Jr., Evansville, for appellants.

McCray & Clark, Evansville, for appellee.

PFAFF, Judge.

This appeal arises as a result of a verdict denying relief in a consolidated action brought by a guest-passenger and her husband against the host-driver for damages for personal injuries and loss of services arising out of an automobile collision.

The facts material to a determination of the issues raised on this appeal may be summarized as follows:

On December 9, 1956, shortly after 12:30 A.M., appellant, Katherine Miller, along with one Grace Pearl, was riding in the rear seat of an automobile which was owned and being operated by appellee, Russell Alvey, appellant having been previously invited by appellee to ride in his automobile as a guest passenger. Appellee was operating his automobile on an expressway in or near the city of Evansville, Indiana. In the center of said expressway was a concrete divider or abutment which separated the east and westbound traffic near an intersection with another street. On the date and at the time in question there was a heavy rain falling. It was alleged by appellants that the appellee was traveling at a high rate of speed (forty to fifty miles per hour), his windshield wiper was not working properly, and his vision was obscured by a heavy rain and the darkness of the night. There was also some evidence presented showing that the appellee had been drinking intoxicating beverages earlier in the evening. Appellants further alleged that despite the many protests and warnings of appellant, Katherine Miller, and said Grace Pearl, to the appellee as to the dangerous manner of said appellee's driving and weather and road conditions, the appellee drove his automobile into and upon said concrete divider or abutment at said intersection with such force that the appellant, Katherine Miller, was thrown about and received severe injury. Appellee, prior to this action, had settled all claims with Grace Pearl and a release agreement was signed by same. The appellants charged that at the time of the collision the appellee was guilty of wanton misconduct in the operation of his automobile, and in their separate complaints set out the particulars constituting such wanton misconduct.

The case was submitted to trial by jury which resulted in a verdict for the appellee. Appellants filed a motion for new trial which was overruled by the lower court and they now come before this court claiming as their assignment of error that the trial court erred in overruling the motions of the appellants for a new trial. More specifically, the appellants object to certain instructions tendered and requested by appellees and given by the trial court to the jury. The particular instructions given as modified by the trial court and objected to by appellants were the following:

'INSTRUCTION NO. 1. Evidence has been introduced showing that Grace Pearl also a guest in defendant's automobile at the time of the accident in this case, sustained bodily injuries in this accident and that the defendant made a compromise settlement of a disputed claim with Grace Pearl and John Pearl for the consideration of three thousand dollars ($3,000.00) and that a written settlement agreement was entered into for that amount. The Court now instructs you that you are not to draw any inference that the defendant by reason of having entered into such settlement thereby admitted liability for this plaintiff.

'* * *

'INSTRUCTION NO. 4. You are instructed that no feeling of sympathy or prejudice for or against either of the parties to the lawsuit should be permitted to influence the decision of any member of this jury in arriving at a verdict in this case.

'* * *

'INSTRUCTION NO. 6. The Court instructs you that a pure accident is an accident which arises where one is pursuing a lawful occupation or pursuit in a lawful manner, and something occurs which ordinary skill or precaution could not forsee or prevent, and as a consequence thereof, an accident occurs. If the damages complained of in this case resulted from a pure accident, then the defendant is not liable for the damages caused thereby.

'* * *

'INSTRUCTION NO. 9. You are instructed that Katherine Miller and Holman Miller the only plaintiffs and Russell Alvey is the only defendant in this cause of action, and there is no evidence in this case there is any other party, plaintiff or defendant, interested in its outcome.

'INSTRUCTION NO. 10. You are instructed that at the time of the accident here in question, there was a statute of the State of Indiana which was in full force and effect, and was as follows:

'The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to, or death of, a guest while being transported without payment therefor in or upon such motor vehicle resulting from the operation thereof, unless such injuries or death are caused by the wanton or willful misconduct of such operator, owner, or person responsible for the operation of such motor vehicle.'

'* * *

'INSTRUCTION NO. 16. You are instructed that if you find from a preponderance of the evidence that at the time of the accident alleged in the complaint Russell Alvey was so under the influence of intoxicants as to be unfit to operate his car and Katherine Miller knew or with the exercise of reasonable care should have known of Russell Alvey's said condition regarding intoxication and voluntarily rode in Russell Alvey's car with such knowledge, then you are instructed that if she was injured as a result of intoxication on the part of Russell Alvey, she is not entitled to recover herein and your verdict should be for Russell Alvey.

'INSTRUCTION NO. 17. You are instructed that if you find from a preponderance of the evidence that at the time of the accident alleged in the complaint Russell Alvey was so under the influence of intoxicants as to be unfit to operate his car and Holman Miller knew or with the exercise of reasonable care should have known of Russell Alvey's said condition regarding intoxication and voluntarily consented to his wife, Katherine Miller, riding with Russell Alvey, as alleged in the complaint, then you are instructed that if Katherine Miller was injured as the result of intoxication on the part of Russell Alvey, Holman Miller is not entitled to recover herein.

'* * *

'INSTRUCTION NO. 19. The mere fact that the Court has instructed you with reference to the measure of damages in this case and as to what you have the right to consider and what you do not have the right to consider in determining the damages, if you find for the plaintiff, must not be taken by you as an indication that the Court believes you should find for the plaintiff. Such instructions must not be construed as any indication as to what the Court thinks you should find by your verdict.'

The appellants also claim under the assignment of error that the verdict of the jury was contrary to law and, further, that the lower court erred in overruling the objections of the appellants to the admission in evidence of appellee's exhibit No. 4, in permitting said exhibit to be introduced in evidence and in permitting the same to be exhibited to the jury. Said exhibit was a statement of appellant, Katherine Miller, made three days after said accident occurred. The statement, in effect, was beneficial to appellee's cause in that appellant stated she was paying no attention to appellee's driving except she knew he was driving at a low rate of speed, she knew nothing about the accident, that appellee had been drinking but was not intoxicated, and that she considered appellee a careful driver.

Appellants direct their attack on appeal to instructions numbered 1, 6, 9 and 16, to the introduction of exhibit No. 4, the trial court's alleged prejudicial remarks before the jury, and the appellants' allegation that they were caught by surprise. To these matters this court shall now direct its attention and consider waived by appellants all other matters not raised by appellants on appeal. Taylor v. Fitzpatrick (1956), 235 Ind. 238, 248, 132 N.E.2d 919.

The appellants urge as their first proposition under the assignment of error that the appellee's instruction No. 1 invaded the province of the jury because the court singled out part of appellee's evidence and told the jury that it could not draw certain inferences from the release which appellee introduced into evidence.

This contention is without merit. The court instructed the jury that they were not to draw any inferences that the defendant, by reason of having entered into such a settlement, admitted liability of the appellee. It is true that instructions invading the province of the jury are erroneous. Princeton Coal Co. v. Dowdle (1924), 194 Ind. 262, 142 N.E. 419. However, the question of the effect of testimony and the purpose for which it should be considered by the jury is a matter to be controlled by proper instructions. Steele v. Michigan Buggy Co. (1912), 50 Ind.App. 635, 95 N.E. 435. If evidence not material to the issue be introduced, the court may instruct the jury to disregard it. Utter v. Vance (1845), 7 Blackf. 514. When illegal evidence is admitted against objection, nothing short of a direct and unequivocal charge excluding it can cure its erroneous admission. Gallivan v. Stickler (1918), 187 Ind. 201, 118 N.E. 679. The lower court, by instructing the jury that no inferences were to be drawn from the release introduced in evidence was, in effect, asking the jury to disregard the release agreement. This was a proper instruction since the release agreement was not material to...