Rust v. Watson

Decision Date17 March 1966
Docket NumberNo. 20149,20149
Citation215 N.E.2d 42,141 Ind.App. 59
PartiesPaul RUST, E. E. Buckingham and George Martin, as Trustees of Zorah Temple of the Ancient Arabic Order of the Nobles of Mystic Shrine, and Zorah Temple Realty Company, Appellants, v. Ida May WATSON, Appellee.
CourtIndiana Appellate Court

[141 INDAPP 63]

Jerdie D. Lewis, Jordan D. Lewis, of Lewis & Lewis, Terre Haute, for appellants.

Mann, Mann, Chaney, Johnson & Hicks, by Hansford C. Mann, Terre Haute, for appellee.

HUNTER, Judge.

This is an appeal from the Superior Court, Number Two in Vigo County wherein a jury rendered a judgment in favor of the appellee for Twenty-Four Thousand ($24,000) Dollars as a result of injuries received when a chandelier fell in a building owned by appellants. The appellants filed a motion for new trial which was overruled by the lower court. The appellants assert that the lower court erred in its ruling on the motion for a new trial which specified the following errors:

I The lower court erred in overruling the appellants' demurrer.

II The lower court erred in giving certain of the instructions to the jury, and conversely, in refusing to give certain instructions of the appellants to the jury.

III Numerous portions of the voir dire examination of the prospective jurors were continued over the objections of the appellants. This along with the actions of the lower court injected the element of insurance into the trial in such a manner so as to prejudice the jury as evidenced by a grossly excessive verdict.

IV The verdict was grossly excessive.

We will discuss these points in the order presented above.

I

The appellants contend that the lower court erred in overruling the demurrer to the appellee-plaintiff's complaint on [141 INDAPP 64] the grounds that the complaint did not state facts sufficient to constitute a cause of action. The complaint, after alleging that the building and fixtures were in the sole possession, care and control of the defendant, and that the chandelier fell from the ceiling of said building causing various injuries to the appellee, stated as follows:

'5. That the injuries heretofore set forth were the proximate result of the defendants' failure to provide a safe place for their paying guests, including plaintiff, all of which building and fixtures were in the possession, care and control of said defendants, Zorah Temple Realty Company and Zorah Temple of the Ancient Arabic Order of the Nobles of Mystic Shrine continuously and without interruption since said building was completed in the year 1926.'

The appellants contend that the above is not sufficient to state a cause of action because there is no general allegation or specific allegation of negligence. The appellants also state that inasmuch as they made a motion to make the complaint more specific, the facts in the complaint must be taken without the benefit of conclusions and inferences.

We agree with the appellants that the appellee had to plead either general or specific negligence before the use of the evidentiary principle of res ipsa loquitur would be allowed. This court stated in Wass v. Suter (1949), 119 Ind.App. 655, at p. 661, 84 N.E.2d 734, at p. 737:

'* * * There is some conflict among the authorities as to whether pleading a specific act of negligence waives the pleader's right to rely upon this doctrine. Many jurisdictions hold that if a case is a proper one for the application of the doctrine, the plaintiff, by pleading specific acts of negligence, does not lose his right to rely on this doctrine provided a general allegation of negligence is made. (cases cited) Indiana has adopted this view.'

However, we do not agree that the appellee failed to aver general negligence in her complaint. The appellants seem to [141 INDAPP 65] say that since the appellee merely averred that the injuries complained of were proximately caused by 'the defendants' failure to provide a safe place' without the use of the word 'negligence', the complaint fails to state a cause of action. Certainly, the appellants were not misled by this phraseology. As in their motion to make more specific the appellants merely stated that they wanted the appellee to aver specific negligence, which was properly overruled by the lower court.

We cannot find any case law to support the appellants' contention that the failure to state the word 'negligence' will render a complaint, as the one in the case at bar, insufficient to state a cause of action, nor do the appellants support their contention by any case law. § 2--1004, Burns' 1946 Replacement states:

'The first pleading on the part of the plaintiff is the complaint. The complaint shall contain: * * *

Second. A statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended. * * *'

We think it can be clearly understood that the appellee was attempting to state a general allegation of negligence, and the appellants' motion and demurrer readily exemplify that they understood the appellee's complaint to allege general negligence.

In addition § 2--1013, Burns' 1946 Replacement states:

'The judgment upon overruling a demurrer shall be that the party shall plead over; and the answer or reply shall not be deemed to overrule the objection taken by demurrer. But no objection taken by demurrer, and overruled, shall be sufficient to reverse the judgment, if it appears from the whole record that the merits of the cause have been fairly determined. If a party fails to plead after the demurrer is overruled, judgment shall be rendered against him as upon a default.'

[141 INDAPP 66] This court feels that the merits were fairly tried in the court below. Consequently, we affirm the lower court's ruling on the demurrer.

II

The appellants also contend that the lower court erred in presenting, modifying, and excluding certain instructions to the jury.

The appellants state the court erred in submitting to the jury over the objections of the appellants its Instruction No. 1. The instruction was:

'Ladies and gentlemen of the Jury, if you find by a preponderance of the evidence that plaintiff was an invited guest of the defendants at the Shrine Temple in Terre Haute, Indiana, on the 15th day of April, 1961, on that event the defendants impliedly held out to plaintiff that except for unknown defects in said building not discoverable by the exercise of reasonable and ordinary care on the part of defendants, that said place of entertainment of said building was a safe place.

You are instructed that if you find by a preponderance of the evidence that plaintiff was an invited guest in the Shrine Temple on April 15, 1961, and during the time plaintiff was in said building as such guest, being without fault, she was injured by a chandelier which fell from the ceiling at said place of entertainment and was injured thereby, and you further find by a preponderance of the evidence that defendant in the exercise of reasonable and ordinary care under the circumstances existing at said time and place, could and should have prevented the falling of said chandelier and avoided injury to plaintiff, and that said failure of defendant to exercise reasonable or ordinary care was the proximate cause of injury of plaintiff, then I instruct you that you should find for plaintiff.'

The appellants assert that this instruction does not require prior knowledge, actual or constructive, or defects or their probability before the duty of inspection was incumbent on the appellants.

[141 INDAPP 67] Although this court does not feel that it is a model instruction, we find that it is a sufficient statement of the law involved. The appellee was attempting to recover on the theory of negligence. The instruction stated that in order for the jury to return a verdict for the plaintiff-appellee, first they must find by a preponderance of the evidence the following: (a) that the appellants had a duty to exercise reasonable care to provide a safe place for the plaintiff-appellee, (b) that the appellants failed to exercise the degree of care which a reasonably prudent person would have under like or similar circumstances thereby breaching said duty, and (c) that such breach of duty was the proximate cause of the injury to the appellee. It is uncontroverted that these are the elements of negligence. In Budkiewicz v. Elgin, Joliet and Eastern Ry. Co. (1958), 238 Ind. 535, 540, 150 N.E.2d 897, 900, our Supreme Court stated:

'Actionable negligence has three essential elements: (1) a duty imposed by law to do or not to do a certain act; (2) a violation of that duty by an act or omission to act which constitutes a breach of that duty; and (3) injury proximately caused by such breach of duty.'

See also Neel, Admr. v. Home Builders, Inc. (1953), 232 Ind. 160, 111 N.E.2d 280; Terre Haute, etc., Traction Co. v. Phillips (1921), 191 Ind. 374, 132 N.E. 740; Indiana, etc., Coal Co. v. Neal (1906), 166 Ind. 458, 77 N.E. 850; Faris v. Hoberg et al. (1893), 134 Ind. 269, 33 N.E. 1028.

Consequently, we believe this mandatory instruction stated all the elements necessary to a recovery on the theory of negligence. The duty to inspect is a further clarification of the standard of reasonable care under special circumstances. We know of no rule that requires a specific statement on the duty to inspect to be included in a mandatory instruction on negligence.

The remaining objections to this instruction and the objections to the appellee's Instructions Nos. 1 and 10, which were given by the lower court have been waived. Supreme Court Rule 2--17 provides:

[141 INDAPP 68] 'Rule 2--17. Appellant's Brief. The brief of appellant shall contain short and clear statements disclosing: * * * (e) After each assignment of error relied upon--except the ruling on a motion for a new trial--and after each cause for a new trial relied upon, there shall...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT