Miller v. Deming Hotel Co.

• Decision Date: 09 February 1966
• Docket Number: No. 19815,No. 1,19815,1
• Parties: Edna S. MILLER, Appellant, v. DEMING HOTEL COMPANY, Appellee
• Court: Indiana Appellate Court

Page 809

213 N.E.2d 809

139 Ind.App. 339

Edna S. MILLER, Appellant, v. DEMING HOTEL COMPANY, Appellee.

No. 19815.

Appellate Court of Indiana, Division No. 1.

Feb. 9, 1966.

[139 INDAPP 340]

Buena Chaney of Mann, Mann, Chaney, Johnson & Hicks, Terre Haute, for appellant.

Thomas M. Patrick, of Dix, Dix, Patrick & Ratcliffe, Terre Haute, for appellee.

FAULCONER, Judge.

Appellant filed suit against appellee for damages for personal injuries sustained by her when she fell on appellee's premises. Trial by jury resulted in a verdict for appellee, and judgment was entered accordingly.

Appellant timely filed her motion for new trial containing grounds 1, 2(a), 2(b), 2(c), 2(d), 2(e) and 2(f), which was overruled, which ruling appellant assigns as error on appeal.

Appellant discusses only specifications 2(c), 2(d) and 2(e) in the argument section of her brief. Therefore, all other grounds or specifications for new trial are deemed waived. Gernhart v. State (1954), 233 Ind. 470, 472, 120 N.E.2d 265; Rule 2-17(e) and (f), Rules of the Supreme Court, 1964 Revision.

Specification 2(c) contends error in the giving to the jury defendant-appellee's Instruction No. 16 over the objection of plaintiff-appellant. Specification 2(d) contends error in giving defendant-appellee's Instruction No. 3 over the objection of plaintiff-appellant. Specification 2(e) contends error in giving defendant-appellee's Instruction No. 22 over the objection of plaintiff-appellant.

We will consider specifications 2(c) and 2(e) together inasmuch as they involve virtually the same issue. Appellant [139 INDAPP 341] specifically objected to only one sentence in Instruction No. 16 contending that it would invade the province of the jury in that it instructed the jury, as a matter of law, that plaintiff-appellant was required to look for steps when her duty was only the use of ordinary reasonable care under all of the circumstances. Appellant's objection to Instruction No. 22 is, in effect, the same as that made to Instruction No. 16.

Both of these instructions were tendered by appellee ang given by the trial court over specific objections of appellant, and instructed the jury on the use by the appellant of her senses.

The trial court was not required to embody all applicable law into one instruction, McClure v. Miller (1951), 229 Ind. 422, 435, 98 N.E.2d 498; Washington Hotel Realty Co. v. Bedford Stone, etc., Co. (1924), 195 Ind. 128, 149, 143 N.E. 156; Powell v. Ellis (1952), 122 Ind.App. 700, 708, 105 N.E.2d 348 (Transfer denied); and our duty, on appeal, is to determine, from all the instructions given, if the jury was properly and fairly instructed. Riechmann v. Reasner (1943), 221 Ind. 628, 634, 51 N.E.2d 10; Pittsburgh, etc., R. Co. v. Higgs (1906), 165 Ind. 694, 708, 76 N.E. 299, 4 L.R.A.,N.S., 1081; H. E. McGonigal, Inc. v. Etherington (1948), 118 Ind.App. 622, 636, 79 N.E.2d 777 (Transfer denied).

A review of all the instructions given by the trial court, and specifically Instructions Nos. 5 and 15 tendered by appellant, convinces us that such instructions covered appellant's objections and that the jury was properly, thoroughly and fairly instructed. Therefore, the giving of appellee's tendered Instructions Nos. 16 and 22 was not reversible error.

Appellant next asserts error in the giving by the trial court of defendant-appellee's tendered Instruction No. 3. Appellant's specific objection thereto was that the last two paragraphs of said instruction 'requires the plaintiff [appellant[139 INDAPP 342] ] to prove her freedom from contributory negligence as a condition precedent to a recovery, and as such places upon plaintiff a burden greater than that placed upon her by the law.'

Appellant is confined on appeal to the specific objection made to an instruction in the trial court. Keeshin Motor Express Co. v. Sowers (1943), 221 Ind. 440, 446, 48 N.E.2d 459; Sims Mtr. Transp. Lines, Inc. v. Davis, Admx. (1956), 126 Ind.App. 344, 352, 130 N.E.2d 82 (Transfer denied). Rule 1-7, Rules of the Supreme Court, 1964 Revision.

Appellant ably sets forth in the argument section of her brief general rules of law, and supporting authorities, pertaining to error in the giving of an instruction placing an erroneous burden of proof on a party, and that such an instruction cannot be cured by other instructions. However, appellant cites no authority to substantiate her assertion that the instruction objected to does, in fact, place upon her an erroneous burden of proof. Nowhere in the...