Rust v. Watson

• Decision Date: 27 June 1966
• Docket Number: No. 20149,No. 2,20149,2
• Citation: 217 N.E.2d 859,141 Ind.App. 59
• Parties: Paul RUST, E. E. Buckingham and George Martin, as Trustees of Zorah Temple of the Nobles of Mystic Shrine, and Zorah Temple Realty Company, Appellants, v. Ida May WATSON, Appellee
• Court: Indiana Appellate Court

Page 859

217 N.E.2d 859

141 Ind.App. 59

Paul RUST, E. E. Buckingham and George Martin, as Trustees of Zorah Temple of the Nobles of Mystic Shrine and Zorah Temple Realty Company Appellants, v. Ida May WATSON, Appellee.

No. 20149.

Appellate Court of Indiana, In Banc, Division No. 2.

June 27, 1966.

[141 INDAPP 63]

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

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

[141 INDAPP 87] ON PETITION FOR RE-HEARING

HUNTER, Judge.

On petition for re-hearing, the appellants continue to advance the case of Evansville American Legion etc. v. White (1958), 239 Ind. 138, 154 N.E.2d 109 in support of their contentions relative to errors contained in two instructions given by the court below. As we took a different approach in our previous opinion (see 215 N.E.2d 42), we feel that it might lend some clarity to the previous opinion if these matters are discussed. In said petition, the appellants urge that this court erred in stating that appellants did not need prior knowledge, actual or constructive,[141 INDAPP 88] of defects in the chandelier before the duty to inspect arose. This interpretation is in error. We merely stated that the mandatory instruction on negligence (the court's Instruction No. 1) did not have to cover the duty to inspect, for such is a further clarification of the duty of ordinary care which was adequately covered in said instruction. The duty to inspect was covered by appellants' Instruction No. 26. Evansville supra, is in no way authority for a holding to the contrary. Said case arose on a question of the sufficiency of the evidence and not a question of a mandatory instruction.

The appellants contend in their petition that this court erred in holding that the appellants' argument, as to the error in the lower court's giving of appellee's Instructions Nos. 1 and 10, was insufficient under Supreme Court Rule 2--17(e) and (f). We feel that such contention has some validity in regard to our previous approach to appellee's Instruction No. 1. However, the result is unchanged. Appellee's Instruction No. 1 is as follows:

'It is for you, the jury, to determine from a preponderance of the evidence, how, it at all, the exercise of ordinary care would have required the defendants, or either of them, to inspect the winch and cable attached to the chandelier in question. If you find that there was such a duty to inspect, then I instruct you that such duty to inspect cannot be escaped by turning over the care and maintenance of the winch and cable to a club manager, custodian or maintenance man. The act or omission of an employee, acting within the scope of his employment, is, in the eyes of the law, the act of the employer.'

The appellants contend that the part of the instruction on the duty to inspect is in error for there was no evidence that appellants had actual or constructive knowledge of any defects in the winch or cable citing Evansville, supra. This was further covered in appellants' Instruction No. 26. We would agree with the appellants that in order for the court to so instruct the jury, such evidence would have to be in the record. However, we find that the record does contain evidence that appellants had constructive knowledge of possible defects.

[141 INDAPP 89] The evidence indicated that the chandelier was placed in the building some thirty-four (34) years prior to the accident.

The chandelier weighed approximately one hundred and fifty (150) pounds. It was thirty (30) feet above the floor attached by 1/4 inch cable to the winch which was used to lower the chandelier to the floor. This apparantus had been in continual use since placement. The area immediately below the fixture was continually occupied by the public as invitees. In view of the evidence outlined above, we feel that such a period of use would alone constitute constructive notice to the appellants of possible defects.

Indeed it appears the record contained evidence that such a period of time and use in the normal instance calls for continual maintenance procedures which entail intermittent inspections. This alone would differentiate this case from that in Evansville, supra, where constructive knowledge of defects did not arise merely due to continued use of a chair. However, a cable and winch used over a period of years in and of itself, would constitute constructive knowledge of possible defects giving rise to a duty to inspect under the circumstances presented in the facts at bar.

The remaining case law put forth by the appellants in relation to this instruction in no way relates to or supports the objections given during the trial nor could the objections relate...