Palmer v. Decker
| Decision Date | 08 November 1968 |
| Docket Number | No. 1067A80,No. 2,1067A80,2 |
| Citation | 143 Ind.App. 478,241 N.E.2d 381 |
| Parties | John PALMER, Appellant, v. Jerry Michael DECKER by A. Linden Decker, his father and next friend, and A. Linden Decker, individually, Appellees |
| Court | Indiana Appellate Court |
Arthur A. May, Crumpacker, May, Levy & Searer, South Bend, for appellant.
Benjamin Piser, Dempsey Cox, South Bend, for appellees.
This is an action brought by the appellees against the appellant in the St. Joseph Superior Court for personal injuries alleged to have been sustained to the eye of the appellee, Jerry Michael Decker, by reason of the alleged negligence of the appellant, John Palmer, in aiming and firing an air rifle, the pellet or BB of which struck said appellee in the eye.
The complaint was filed against John Palmer and Charles C. Palmer and Irene Palmer, the parents of the appellant, John Palmer, in which action filed against Charles C. Palmer and Irene Palmer, the appellees specifically charged that on July 30, 1963, they were guilty of negligence in failing to supervise John Palmer, their son, and in furnishing him with an air rifle. At the conclusion of all of the evidence the court directed a verdict in favor of Charles C. Palmer and Irene Palmer, leaving as the only defendant John Palmer, the appellant herein.
In substance the appellees in their complaint filed against appellant John Palmer alleged that on the 30th day of July, 1963, said appellant was 13 years of age and resided in the home of his parents. That on said date the appellee, Jerry Michael Decker, entered the home of the appellant and as he walked back to appellant's bedroom and had turned the corner leading to the bedroom, said appellee was struck in the eye by a pellet fired from said air rifle by the appellant. The specific charges of negligence are as follows:
a. Aiming and firing the air rifle at a doorway through which the appellant-defendant could have reasonably expected a person to appear.
b. Aiming and firing the rifle at the person of the plaintiff-appellee, Jerry Michael Decker.
c. Aiming and firing the rifle in the general direction of the person of the appellee-plaintiff, Jerry Michael Decker.
The appellant filed an answer which in substance admitted that the appellee Jerry Michael Decker entered the home of the appellant on the 30th day of July, 1963, and that as he entered the bedroom of the appellant, the appellee was struck in the left eye by a pellet fired from an air rifle by the appellant. Appellant also in his answer denied the specific acts of negligence charged against him in appellees' complaint.
Trial was had to a jury which returned a verdict for the appellee, Jerry Michael Decker, in the sum of $25,000.00 and a verdict for the appellee, A. Linden Decker, in the sum of $2,000.00.
Appellant urges error in the following respects:
That the verdict of the jury is not sustained by sufficient evidence and is contrary to law, and that the court erred in failing to direct a verdict in favor of the appellant at the conclusion of the evidence.
That the trial court erred in giving to the jury at the conclusion of the evidence instructions numbers 3, 5 and 6, and failing to give instruction number 9 submitted by the appellant.
In this opinion the court will group together and consider the following allegations of error contained in the motion for a new trial:
1. That the verdict of the jury is not sustained by sufficient evidence.
2. That the verdict of the jury is contrary to law.
3. That the court erred in overruling appellant's motion for directed verdict at the conclusion of all of the evidence.
It is a well established principle of law that if the appellees were to recover from the appellant, John Palmer, in this case, they must recover upon the allegations of negligence set forth in the complaint; and that the appellees are required to recover, if at all, upon proof of one or more of said acts of negligence.
From an examination of the record evidence it is apparent that the verdict of the jury is not sustained by sufficient evidence of probative value and was contrary to law in that there was a total lack of substantial evidence, of probative value, to show that the appellant was guilty of any one or more of the acts of negligence charged in the appellees' complaint; and that the verdict of the jury denied to the appellant the relief to which he was entitled under the law. It is our opinion that the appellant was entitled as a matter of law to have the court sustain its motion for directed verdict and to have the jury directed to find for the appellant and against the appellees on their complaint.
In the case of New York Central Railroad Co. v. Knoll (1965), Ind.App., 204 N.E.2d 220, 221, our court stated as follows:
'It is fundamental that in civil actions the plaintiff must recover upon the case he makes upon his complaint or not at all; that he cannot sue upon one set of facts and recover upon another.'
In the case of Summarys v. Weyer (1967), Ind.App., 226 N.E.2d 904, at page 907, our court stated as follows:
'Where specific acts of negligence are alleged in the complaint, it is well settled that the plaintiff must recover, if at all, upon proof of these acts.'
The complaint charged specifically that the negligence of the appellant consisted of one or more of the following acts:
a. Aiming and firing the air rifle at a doorway through which he could have reasonably expected a person to appear.
b. Aiming and firing the air rifle at the person of appellee, Jerry Michael Decker.
c. Aiming and firing the air rifle in the general direction of the person of the appellee, Jerry Michael Decker.
It is quite apparent that the charges of negligence as set forth in the complaint charged that the appellant aimed and fired the rifle at the appellee, or through the doorway through which the appellee could be expected to appear.
Further, from an examination of the record evidence, it appears that there is a complete lack of evidence on the part of the appellees that the appellant, John Palmer, intentionally aimed and fired the air rifle at the appellee, or through a doorway through which he could expect the appellee to appear.
The undisputed evidence in this case shows that the appellant and the appellee, Jerry Michael Decker, had been swimming at a swimming pool on the day of the accident in question; and that upon their return, they both went to their respective homes and changed their clothes, after which they intended to go out and shoot the appellant's air rifle in a nearby woods. The appellant, John Palmer, after arriving at his home, went to his room which is at the end of the hall at the one end of the house. He sat on his bed in his room, facing the east wall, with the doorway to his right and slightly behind him. He took the air rifle from under his bed and laid it on his lap with the barrel to his right and was looking at his gun and not out the doorway in question. He did not know that the appellee was in his home, or that anybody else was in the vicinity of his room. He cocked the gun, pulled back the hammer and pulled the trigger, thereby discharging a pellet which struck the appellee as he came to the end of the hall and started his left turn into appellant's bedroom. The appellant stated that he did not hear any noise or sound of the appellee as he came through the house, down the hall to the appellant's room, which evidence is corroborated by the appellee in his testimony that he made no sound as he walked through the house on the carpeted hallways to the room of the appellant and that it was only when he arrived at a position in the hallway opposite the
appellant's bedroom that he was struck in the eye by the pellet.
We find nothing in the evidence which would sustain the fact the John Palmer aimed and fired his gun with the intention of shooting the air rifle at or towards the appellee or through the doorway through which he could reasonably expect the appellee to appear.
In support of his contention the appellant has cited the case of Sutton v. Bonnett (1887), 114 Ind. 243, 16 N.E. 180. The evidence in the Sutton case disclosed that two boys, John and Thomas Sutton, were hunting in a field; and that the two boys were joined in the hunting expedition by the appellee. With the pistol loaded the three boys walked toward a part of the field, with the appellee Bonnett carrying the pistol. As the boys walked along the field, the appellee Bonnett cocked the pistol. The hammer did not work properly and he again cocked the pistol and turned around and took his thumb from the hammer of the pistol. As he did so the pistol discharged, thereby striking the appellant Thomas Sutton in the face and severely injuring him. At the time the pistol was discharged, the appellee Bonnett did not see Thomas Sutton, who had changed his position in the line in which they were walking. The Supreme Court in its opinion spoke as follows:
'The first instruction asked by the appellant and refused, leaves out the element of purpose, and was purposely refused.' (Emphasis supplied.)
The appellees tendered to the trial court their...
To continue reading
Request your trial
-
Palmer v. Decker
...DeBRULER, Judge. This appeal was first made to the Indiana Appellate Court which rendered an opinion reported as Palmer v. Decker et al. (1968), Ind.App., 241 N.E.2d 381, reversing the judgment of the trial court and remanding the cause for a new trial. The appellee below has petitioned thi......