Qualls v. J. C. Penney Co., s. 368

• Decision Date: 01 April 1969
• Docket Number: No. 2,Nos. 368,s. 368,2
• Citation: 144 Ind.App. 276,245 N.E.2d 860
• Parties: Virginia Agnes QUALLS and Delbert D. Qualls, Appellants, v. J. C. PENNEY COMPANY, Appellee. A 37, 368 A 38
• Court: Indiana Appellate Court

Page 860

245 N.E.2d 860

144 Ind.App. 276

Virginia Agnes QUALLS and Delbert D. Qualls, Appellants, v. J. C. PENNEY COMPANY, Appellee.

Nos. 368 A 37, 368 A 38.

Appellate Court of Indiana, Division No. 2.

April 1, 1969.

Rehearing Denied May 7, 1969.

Richard H. Crokin, Indianapolis, for appellants.

Robert C. Riddell, Indianapolis, Noble J. McClure, Indianapolis, of counsel, for appellee.

PER CURIAM.

Appellant, Virginia Agnes Qualls, brought an action against appellee, J. C. Penney Company, for damages for personal injuries allegedly resulting from and sustained by appellant in a fall on an escalator owned and operated by appellee. Appellant, Delbert D. Qualls, also brought an action against the appellee for medical expenses and loss of services allegedly caused by and arising out of the same accident. Upon appellee's motion, appellants' separate causes of action were consolidated for trial.

Trial was had by jury, which resulted in a verdict in appellee's favor. Appellants filed a motion for new trial, which was subsequently overruled, and they now assign as error the overruling of said motion.

The evidence discloses that on January 23, 1964, at approximately 7:55 p.m., appellant, Virginia Agnes Qualls, was shopping in appellee's store and while going from the second floor to the first floor stepped on the escalator and slipped and fell, thereby sustaining the injuries complained of. The appellant testified that she had stepped on a slippery spot on the escalator.

Appellants' first specification of error is that the trial court erred in giving, over objection, appellee's Instruction No. 2. The instruction reads as follows:

'The law recognizes that persons may be injured or may die and that property may be damaged in an occurrence without there being fault or negligence on the part of anyone. In such a situation the occurrence is termed an accident.

'If you should find by the greater weight of all the evidence that the occurrence sued upon here was an accident, then there would be no right of recovery by the plaintiff, Virginia Agnes Qualls, against this defendant and your verdict must be for the defendant, J. C. Penney Company.'

Appellants allege that although the words 'mere' or 'pure' are not specifically used to describe the word 'accident' in the above quoted instruction, the instruction as given constitutes a mere or pure accident instruction and, as such, the giving of said instruction constituted reversible error. Appellants argue that the use of the word 'accident' alone prejudiced the jury because descriptive words such as 'mere' and 'pure' are superfluous and add nothing to instructions.

In Miller v. Alvey (1965), 246 Ind. 560, 565, 207 N.E.2d 633, 636, the Supreme Court of Indiana stated:

'What is the meaning of the term 'accident'? Webster's Third New International Dictionary (p. 11), defines it inter alia as 'a usually sudden event or change occurring without intent or volition through carelessness, unawareness, ignorance, or a combination of causes and producing an unfortunate result (a traffic accident in which several persons were injured).' It is thus readily apparent that the word 'accident' does not necessarily preclude fault or negligence. The term is susceptible of different meanings and constructions and to tell a jury there is no liability in case of 'unavoidable accident' or 'pure accident' i.e., an unintentional careless, or unknown occurrence, is misleading and confusing to say the least, and is not compatible with the principles of tort law imposing liability on persons who fail to exercise ordinary or reasonable care.

'In fact the term 'unavoidable accident' appears to be an obsolete relic or remnant carrying over from a time when damages could be recovered in an action for trespass and strict liability imposed unless the defendant proved the injury was caused by an 'inevitable or unavoidable accident.' 'Unavoidable accident' was then an affirmative defense to be pleaded and proved by the defendant. See: 2 Harper & James, The Law of Torts (1956), § 12.2, p. 747 et seq.; Butigan v. Yellow Cab Co. (1958), supra, 49 Cal.2d 652, 657, 320 P.2d 500, 504, 65 A.L.R.2d 1.'

Our Supreme Court reaffirmed the position taken in Miller v. Alvey, supra, in White v. Evansville American Legion Home Association (1965), 247 Ind. 69, 70, 210 N.E.2d 845, 846, wherein it stated:

'Appellant contends error was committed in the giving over objection of instruction No. 5 which was as follows:

'The law recognizes the possibility of a mere accident, that is, an occurrence which is no way due to the negligence of any one. Therefore, if you find from the evidence that the injuries complained of by the plaintiff in this case were the result of a mere accident, there can be no recovery by the plaintiff Anna Mary White.'

'In our recent opinion in the case of Miller v. Alvey (1965), 246 Ind. page 560, 207 N.E.2d 633, we had before us an instruction on pure accident, the giving of which we held to be reversible error.

'It has been argued we held in Miller v. Alvey, supra, that an instruction on 'pure accident' or 'unavoidable accident' was proper if there was evidence to support such an instruction. That construction is completely at variance with a careful reading of our opinion in which we pointed out that the expressions 'pure accident' or 'unavoidable accident' had no particular connotation in modern pleading of negligence cases, that such expressions were ambiguous and confusing to lay jurors, their use in instructions was undesirable and unwise, and we disapproved any statements in prior decisions which could be construed to the contrary. Consistent with Miller v. Alvey, we must hold it was error for the court to give instruction No. 5.'

In Rust v. Watson (1966), Ind.App., 215 N.E.2d 42, 217 N.E.2d 859 (Transfer denied), the court stated at pages 48 and 49 of 215 N.E.2d as follows:

'Appellants' Instruction No. 34 which was refused provided:

'I instruct you that the laws of the State of Indiana recognize the possibility of a mere accident, that is, an occurrence which is in no way due to the fault or negligence of anyone.

'The happening of a mere accident, resulting in injury cannot support a verdict for damages. Therefore, if you find that the injury or damage suffered by the plaintiff, Ida May Watson, were the result of a mere accident, then there can be no recovery by the plaintiff and it will be your duty to return a verdict for the defendants, * * *.'

'This matter was fully discussed in appellants' Instruction No. 27 which was given and reads as follows:

'You are instructed that an unavoidable accident has been defined to be an occurrence or happening as under all the attendant circumstances and conditions could not have been foreseen or prevented by using ordinary care. So, in this case, if you find by a preponderance of the evidence that the involved accident was one that could not have been foreseen or prevented by either plaintiff or defendant, in the exercise of ordinary care, then I instruct you that this was an unavoidable accident, and plaintiff cannot recover.'

'It should be noted that Instruction No. 34 tendered by the appellant and refused by the court appears to be a standard instruction on the 'mere accident' theory. Similar instructions had been upheld by this court and the Supreme Court prior to the cases of Miller v. Alvey (1965), 246 Ind. 560, 207 N.W.2d 633 and White v. Evansville American Legion Home Ass'n. (1965), 247 Ind. 69, 210 N.E.2d 845. In view of the latter two decision, it appears to this court that the appellants' Instruction No. 27 concerning te proposition of 'unavoidable accident' which was given by the court is at least as much or more than the appellants were entitled to under the broad theory of 'accident instructions.' Therefore, we hold that the refusal to give the appellants' Instruction No. 34 could in no way be construed to be reversible error.'

Judge Hunter, in speaking of the Rust v. Watson decision, stated in his concurring opinion to a denial of appellant's petition to transfer in Wilson Freight Co. v. Scheurich (1968), Ind.App., 238 N.E.2d 25, Ind., 241 N.E.2d 142, as follows:

'I concur in the denial of the petition to transfer in this case as I do not feel that either instruction in issue so prejudiced the appellant as to constitute reversible error.

'But I do want to point out that Instruction No. 15, as worded, discussing and defining the possibility of there being an 'unavoidable accident,' is probably not a proper instruction in the case at bar under the laws of this state. The opinion in Rust v. Watson (1966), Ind.App., 215 N.E.2d 42, was relied upon by the Appellate Court in approving this instruction. In Rust, the court held that a similarly worded instruction was 'at least as much or more' than the defendants were entitled to under the broad theory of accident instructions. This was said in the context of affirming the trial court's refusal of another of the defendants' requested instructions which was essentially an instruction based on the possibility of a 'mere accident,' and it should be noted this refusal did not constitute reversible error as related to the facts of that case. The court did not mean to necessarily approve an instruction based on the possibility of an 'unavoidable accident' and, to this extent, the opinion in Rust has been misconstrued by the Appellate Court.'

In Pierce v. Horvath (1968), Ind.App., 233 N.E.2d 811, 815, 817 (transfer denied), the court, relying on the above cited authorities, stated:

'Appellant next argues that the trial court also erred in giving defendant-appellee's tendered Instruction No. 21, over appellant's objection, that it was a mere accident instruction, the giving of which is reversible error since the decision in Miller v. Alvey (1965), 246 Ind. 560, 207 N.E.2d 633.

'Defendant-appellee's Instruction No. 21 reads as follows:

'Negligence alleged is not to be presumed from the mere...