Paxton v. Ferrell

• Decision Date: 18 February 1969
• Docket Number: No. 20762,20762
• Citation: 244 N.E.2d 439,144 Ind.App. 124
• Parties: Dorothy PAXTON, Administratrix of the Estate of Eugene R. Paxton, Deceased, Appellant, v. Charles A. FERRELL and Donald Brown, Appellees.
• Court: Indiana Appellate Court

Page 439

244 N.E.2d 439

144 Ind.App. 124

Dorothy PAXTON, Administratrix of the Estate of Eugene R Paxton, Deceased, Appellant, v. Charles A. FERRELL and Donald Brown, Appellees.

No. 20762.

Appellate Court of Indiana.

Feb. 18, 1969.

Charles R. Vaughan, Vaguhan & Vaughan, Lafayette, Arch N. Bobbitt, Ruckelshaus, Bobbitt & O'Conner, Indianapolis, for appellant.

Howard J. DeTrude, Jr., Harry A. Wilson Jr., Kightlinger, Young, Gray & Hudson, Indianapolis, for appellees.

SHARP, Judge.

This is an action by the Appellant-Plaintiff, Dorothy Paxton as Administratrix of the estate of her deceased husband who was killed in an airplane crash on April 28, 1963. The Amended Complaint is in two legal paragraphs, one based on negligence alleging that the Plaintiff's decedent was a passenger for hire, and the second paragraph brought under Section 14-924, Burns' Indiana Statutes Annotated (1964 Replacement) alleging that the Plaintiff's decedent was a guest and charging the Defendants with wilful and wanton misconduct. It was alleged that the Appellees-Defendants were the owners of the airplane in question and that the Appellee-Defendant Ferrell was the pilot at the time of the crash. Defendants filed an answer in denial under Supreme Court Rule 1-3.

Trial was had by jury which returned a verdict in favor of the Appellees on both paragraphs. Motion for New Trial was overruled which is the sole assignment of error here.

Two of the specifications of error involve instructions given by the trial court. The court gave the following instruction:

'Instruction No. 12.

You are instructed that when one is confronted with a sudden emergency, not of his own making and does not have sufficient time to determine with certainty, the best course to pursue, that under such circumstances he is not held to the same accuracy of judgment that would be required of him if he had time for deliberation.

Accordingly, if you find from a fair preponderance of the evidence that Charles A. Ferrell was confronted with a sudden emergency, not of his own making, and if you further find from the evidence that said defendant, Charles A. Ferrell, then and there exercised such care as an ordinarily prudent man would have exercised when confronted by a similar emergency, that he would not be liable for any damages resulting from the consequences of such emergency even though he might have taken another course of conduct which might have been more judicious or safer or might have even avoided the accident, and under such circumstances your verdict should be for the defendant, Charles A. Ferrell.'

Appellant made the following objection to Instruction Number 12:

'the plaintiff objects to the giving of defendants' instruction no. 12 for the reason that it is a mandatory instruction, which erroneously omits an essential element, to-wit: the element of time, in that it omits to state that the defendant, Charles A. Ferrell, did not have sufficient (time) to determine the best course; and for the further reason that the doctrine of sudden emergency is beyond the issues of this case. That's it.'

The Appellant's contention 'that the doctrine of sudden emergency is beyond the issues of this case' has not been argued in the Appellant's brief and is therefore waived on this appeal. Taylor v. Fitzpatrick, 235 Ind. 238, 132 N.E.2d 919 (1956).

Thus, we are left to consider whether instruction number 12 includes the element of time as a sudden emergency or sudden peril instruction. While instruction 12 may not be a model instruction, we believe that the time element is sufficiently included. It is obvious the first paragraph of the instruction covers the time element but the Appellant complains that the second paragraph of the instruction omits the time element. While this is a mandatory instruction and must include all of the elements necessary to a final conclusion, it is unnecessary that all of these elements must be in one paragraph of an instruction. Under Indiana practice instructions are read to the jury. The necessary elements of an instruction, including a mandatory one, may be set forth in more than one paragraph. The Appellant would have us dissect this instruction by paragraphs. This we are not required to do. In substance, instruction number 12 sets forth the essential elements of sudden peril or emergency which are set forth in Taylor v. Fitzpatrick, supra, which are listed by our Supreme Court in 235 Ind. at page 247, 132 N.E.2d 919, as follows:

(a) That the appearance of danger or peril was so imminent that he had no time for deliberation.

(b) That the situation relied upon to excuse any failure to exercise legal care was not created by his own negligence.

(c) That his conduct under the circumstances was such as the law requires of an ordinary prudent man under like or similar circumstances.

See also Gamble v. Lewis, 227 Ind. 455, 85 N.E.2d 629 (1949).

The Appellant relies on Huey v. Milligan, 242 Ind. 93, 175 N.E.2d 698 (1961), Ryan v. Leach, Ind.App., 215 N.E.2d 877 (1966), and Davison v. Williams, Ind., 242 N.E.2d 101 (1968). These cases are not in point. In Huey, supra, our Supreme Court held that an instruction which ordered the jury to return a verdict for the defendant if the plaintiff was guilty of any contributory negligence which proximately contributed 'in the slightest degree' was error because the quoted words misstated the rule of proximate cause in a mandatory instruction. Ryan, supra, involves a mandatory instruction which failed to state that a mechanical brake failure must be the sole proximate cause of the accident. Davison, supra, held that it was error to give a mandatory instruction to the effect that violation of a safety regulation constituted negligence as a matter of law without also instructing the jury regarding possible excuse or justification. Since we have held here that all of the elements of sudden emergency or sudden peril are included in instruction number 12, the Huey-Ryan-Davison line of cases are not in point.

The Appellant next objects to the giving of instruction number 8 which stated:

'The question of contributory negligence on the part of the plaintiff's decedent is an issue in this case. If plaintiff's decedent was guilty of negligence that proximately contributed to his injury, then the plaintiff cannot recover even though the defendants may have been negligent. The defendants have the burden of proving by a preponderance of the evidence that plaintiff's decedent was guilty of such negligence.'

As shown in the Appellant's brief the following objection was made to the giving of this instruction:

'The plaintiff objects to the giving of Court's Final Instruction 8 (7.05) for the reason that it includes an erroneous judicial determination; that the question of contributory negligence is (not?) an issue in this case, and further, for the reason that it gives undue emphasis to one phase of this case.'

The Appellant contends there is no evidence of contributory negligence and therefore it is not an issue in this case. The rules applicable here are well-defined:

'(W)hile it is error to give instructions on an issue not supported by evidence, the giving of such instructions, does not require a reversal where no prejudice resulted to appellant.' Peckham v. Smith, 130 Ind.App. 452, 461, 165 N.E.2d 609, 614 (1960).

This court has stated further that 'the initial point of inquiry in determining whether erroneous instructions are prejudicial is whether the jury was misled.' Evansville City Coach Lines, Inc. v. Atherton, 133 Ind.App. 304, 310, 179 N.E.2d 293, 296 (1961). See also Hancock v. York, Ind.App. 227 N.E.2d 187 (1967), at page 190 of 227 N.E.2d where Judge Cook stated:

'Appellees' instructions numbered 4 and 5 informed the jury that 'probable cause' constituted a complete defense to an action for false imprisonment, even though the jury were to find that appellant had not as a matter of fact wrongfully taken the merchandise in question. This was not a correct statement of the law. But the jury obviously was not misled, nor was the general verdict influenced by these instructions, because the jury found by special verdict that appellant did wrongfully take appellees' merchandise.' (Emphasis added.)

This principle is codified in Burns' Indiana Statutes Annotated, Section 2-3231, which states in part:

'Nor shall any judgment be stayed or reversed, in whole or in part, where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below.'

The record here is clear. The jury answered thirty interrogatories and specifically found that the Appellant was not a paying passenger at the time of the airplane crash in question. Therefore, the question of contributory negligence was rendered irrelevant and certainly an instruction on the same could not have misled the jury. It is further to be noted that the trial court gave five other instructions covering the subject of contributory negligence to which the Appellant made no objection.

Next, the Appellant attempted to introduce evidence regarding the existence of Federal Airway through an expert witness, Mr. Saye, as follows:

'Mr. Vaughn: Mr. Saye, was the same airway in...