Riechmann v. Reasner

• Decision Date: 25 October 1943
• Docket Number: 27927.
• Parties: RIECHMANN v. REASNER.
• Court: Indiana Supreme Court

51 N.E.2d 10

221 Ind. 628

RIECHMANN v. REASNER.

No. 27927.

Supreme Court of Indiana

October 25, 1943

Appeal from Warrick Circuit Court; J. Harold Hendrickson judge.

Ortmeyer Bamberger & Ortmeyer, of Evansville, and Leonard Ashley of Boonville, for appellant.

John H. Jennings, of Evansville, for appellee.

O'MALLEY Judge.

This action was brought by the appellee against the appellant to recover damages for personal injuries allegedly sustained by reason of the collision of an automobile owned and operated by the appellant. an automobile operated by the appellant. The collision occurred at a street intersection in the City of Evansville, Indiana.

The only assigned error is the overruling of the motion for a new trial.

In the voir dire examination of the jury the appellee's attorney asked each of them whether or not he had any interest in or connection with the Gulf Insurance Company. Objection to this question having been overruled, the appellant then moved to discharge the panel, which motion was likewise overruled. Error is assigned on these rulings. It is claimed that since this action was tried by a 'struck jury' under § 4-3313, Burns' 1933, § 333, Baldwin's 1934, the only challenge available to the parties was for cause; that interest in or connection with the Gulf Insurance Company would not have been a proper ground for removal for cause, and that the propounding of the question was in 'bad faith', and for the sole purpose of informing the jury that an insurance company was interested.

The record shows that when the objection to the question was made, the appellee's attorney, out of hearing of the jury, informed the court that he had been negotiating with the Duncan Adjusting Company, that the Duncan Adjusting Company represented the Gulf Insurance Company, that the defendant's car was insured in the Gulf Insurance Company, and that he had a letter in his file from the adjusting company relative to this case. In the absence of a counter-showing, the court must have concluded that the representations thus made by an officer of his court were true, and it was not error for the court to permit the appellee to ascertain whether or not any member of the panel was interested in the Gulf Insurance Company as agent, director or otherwise, to the end that if a proper interest was shown, a challenge for cause could be used.

We now proceed to an examination of the claim of error in the giving of instruction number three, given on the court's own motion. The appellant under proposition 'E' characterized this instruction as correctly defining the standards of conduct and care governing the rights of the parties, in the following language: 'and instruction No. 3, given by the court of its own motion, which correctly advised the jury as to the standards of care fixed by law, * * * which said instructions * * *, correctly informed the jury as to the standards of conduct governing the rights of the parties, and likewise correctly informed the jury as to what standard should be applied in passing upon the questions before them. Appellant's brief p. 222.

Having thus measured and evaluated this instruction, appellant cannot be permitted to question its correctness, and this claimed error is thus obviated.

Appellant also claims error in the giving of instructions number one, three, five, six, seven and eight tendered by appellee.

Instruction number one told the jury that the standards fixed by statutes and court decisions are not unyielding under any and all circumstances, and that each driver must use reasonable care in the light of the facts and circumstances involved. This instruction is not subject to the objections raised. It was not mandatory, and appellant cannot predicate error on the lack of fullness without offering an instruction which contains the desired elements.

Instruction number three charges that each driver of an automobile must use reasonable care, and even though appellant was approaching from the right, that fact would not relieve her from using reasonable care. The objection here is that the instruction does not include elements as to the location or position of appellee's car. The instruction was not mandatory and was proper as far as it went. Appellant should have offered instructions containing the added elements. This she did not do and she is not in position to complain because the instruction did not go far enough. Marmon Motor Car Co. v. Schafer, 1931, 93 Ind.App. 588, 591, 178 N.E. 863, 864, and cases cited.

Instruction number five is not subject to the criticism that the court invaded the province of the jury and assumed that appellee reached the intersection first. It...