Miller v. Deming Hotel Co., 19815
| Decision Date | 15 June 1966 |
| Docket Number | No. 19815,No. 1,19815,1 |
| Citation | 139 Ind.App. 339,217 N.E.2d 165 |
| Parties | Edna S. MILLER, Appellant, v. DEMING HOTEL COMPANY, Appellee |
| Court | Indiana Appellate Court |
[139 INDAPP 340] Buena Chaney, Mann, Mann, Chaney, Johnson & Hicks, Terre Haute, for appellant.
Thomas M. Patrick, Dix, Dix, Patrick & Ratcliffe, Terre Haute, for appellee.
[139 INDAPP 343] ON PETITION FOR REHEARING.
Appellant has filed herein her petition for rehearing in four paragraphs.
Appellant's first contention as to error in the court's opinion consists merely of the stated conclusion, unsupported by citation of authority, that defendant's tendered Instruction No. 16 was not cured by plaintiff's Instructions Nos. 5 and 15. This argument is no more than a flat conclusion that the court erred in failing to decide the issue in favor of appellant.
In the second paragraph of her petition for rehearing appellant contends that '(t)he Court failed to give a statement in writing on each substantial question arising on the record by failing to give any statement in writing concerning Appellant's objections to defendant's tendered instruction No. 22.' With regard to this objection, the court viewed appellant's objections to defendant's tendered Instructions Nos. 16 and 22 as being, in effect and with regard to the issue presented, the same. From appellant's petition for rehearing it is apparent that she is aware of this fact. Thus, the court having dealt in its written opinion with the single question presented, appellant's second contention is without merit.
Appellant's third contention in support of her petition for rehearing is the allegation that since defendant's tendered Instruction No. 22 was a mandatory instruction, its omission of the element of ordinary care could not be aided by other instructions. In support of this statement[139 INDAPP 344] appellant cites Covert v. Boicourt, Exr. (1931), 93 Ind.App. 355, 168 N.E. 198. The Covert case does hold that the omission of an essential element presented by the issues from a mandatory instruction cannot be cured by other instructions. With regard, however, to the basic element of appellant's third contention, i.e., that defendant's tendered Instruction No. 22 was, in fact, mandatory, the court in the Covert case indicated, on page 364 of 93 Ind.App., on page 201 of 168 N.E., that it regards an instruction as mandatory which 'directs a verdict on certain facts to be found.' Such view is substantially in accord with that expressed in Vance v. Wells (1959), 129 Ind.App. 659, 159 N.E.2d 586, and thus the Covert case is not in conflict with the conclusion that defendant's tendered Instruction No. 22 is not mandatory under the definitive explanation of a mandatory instruction in Vance v. Wells, supra, at pages 666--667 of 129 Ind.App., at page 590 of 159 N.E.2d, as follows:
Appellant, in the fourth and final paragraph of her petition for rehearing raises the same objection to defendant's tendered Instruction No. 3 as was raised on appeal, i.e., the instruction placed upon the plaintiff the burden of proving her freedom from contributory negligence. Appellant cites five Supreme Court of Indiana cases in support of her contention. Of these five cases, three were cited previously in appellant's brief in support of the same proposition for which they are now cited. The language and reasoning found in the court's written opinion is still applicable on this question of law.
[139 INDAPP 345] The two cases cited by appellant in her petition for rehearing which were not cited on appeal are Harper v....
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Yuhas v. Review Bd. of Indiana Employment Sec. Division
...411; Nye v. Kamm (1965) 139 Ind.App. 687, 212 N.E.2d 397, 214 N.E.2d 802; Miller v. Deming Hotel (1966) 139 Ind.App. 339, 213 N.E.2d 809, 217 N.E.2d 165. The brief further fails to comply with Rule 2--17(h) in the matter of case citations. It is interesting to note that the appellant has ci......