Shane v. Fields, 19596

• Decision Date: 15 May 1963
• Docket Number: No. 2,No. 19596,19596,2
• Citation: 135 Ind.App. 353,190 N.E.2d 195
• Parties: Wilma SHANE, Administratrix of the Estate of Lee E. Shane, Appellant, v. Eugene FIELDS, Appellee
• Court: Indiana Appellate Court

Page 195

190 N.E.2d 195

135 Ind.App. 353

Wilma SHANE, Administratrix of the Estate of Lee E. Shane, Appellant, v. Eugene FIELDS, Appellee.

No. 19596.

Appellate Court of Indiana, Division No. 2.

May 15, 1963.

Rehearing Denied June 13, 1963.

Earl C. Townsend, Jr., John F. Townsend (of Townsend & Townsend) Indianapolis, for appellant.

Smith & Jones, John T. Hume, III, Gordon R. Smith, Indianapolis, for appellee.

HUNTER, Judge.

This is an action under Acts of 1937, ch. 259, § 1, p. 1229, being § 47-1021, Burns' 1952 Replacement, known as the 'guest statute', for the alleged wrongful death of one Lee E. Shane who was killed when an automobile driven by the defendant, Eugene Fields, careened off U. S. Highway 52 and struck a tree.

The issues were formed and trial was by jury. Verdict was returned for the defendant-appellee and the plaintiff filed his motion for new trial stating six (6) reasons, therefor, to wit:

'(1) The verdict of the jury is not sustained by sufficient evidence.

'(2) The verdict of the jury is contrary to law.

'(3) The court erred in giving to the jury instructions numbered 5, 9 and 16 tendered by the defendant, to the giving of each of which instructions the plaintiff at the time duly excepted and objected by stating her specific objections thereto before argument.

'(4) The court erred in giving to the jury on his own motion defendant's tendered instruction No. 15 excepting the first sentence thereof as tendered by defendant, to the giving of which said instruction the plaintiff at the time duly excepted and objected by stating her specific objections thereto.

'(5) The court erred in refusing to give to the jury the instructions requested by the plaintiff, numbered 4 and 9.

'(6) The court erred in overruling plaintiff's motion to strike out interrogatories numbered 20, 21 and 22 as tendered by defendant, to which interrogatories plaintiff at the time stated her objections and duly excepted to the court's submission thereof.'

The trial court overruled the motion and the plaintiff then brought this appeal assigning the overruling of the motion for new trial as the sole error.

Through failure to present a cogent argument as to how the verdict of the jury is not sustained by sufficient evidence, or as to how the court erred in giving defendant's instructions #9 or #16, or as to how the court erred in refusing plaintiff's instruction #4, the appellant is deemed to have waived these objections. Wright v. State (1958), 237 Ind. 593, 147 N.E.2d 551.

The uncontradicted evidence brought out that both men had been drinking; the car was going 60-70 mph. in a 65 mph. zone the two right wheels of the car fell off the road and thereafter the car crossed the road diagonally and collided with a tree. There was evidence in conflict as to: whether the defendant was driving; whether the defendant was intoxicated; and whether the defendant made the statement a few days after the accident that 'We were drinking and I was mad at Lee and I didn't give a damn.'

Appellant contends that the court erred in giving defendant's instruction No. 5 reading:

'The Law of this State recognizes the possibility of a mere accident; that is, an occurrence which is in no way due to the conscious act or fault of anyone. The happening of a mere accident resulting in injury or death cannot support a verdict for damages. Therefore, if you find that the death of Lee E. Shane in this case was the result of a mere accident, there can be no recovery for the plaintiff.'

Appellant cites a vast number of cases from other jurisdictions disapproving this instruction especially when there was no direct evidence of the possibility of pure accident. Although this seems to be the rule in the vast majority of the state ¹ it is not the rule in Indiana.

In Bain, Admx. v. Mattmiller (1938), 213 Ind. 549, 13 N.E.2d 712 the Supreme Court stated that the law was correctly recited in the following instruction then in issue:

'If you are unable to determine, from a fair preponderance of the evidence, just what was the proximate or real cause of the collision and resultant injury described in the complaint, then such collision falls within that class denominated as pure accident, and your verdict should be for the defendant, * * *.'

Thus in the case at bar we are bound to follow the Supreme Court and hold that the pure accident instruction was proper as it was quite possible that the jury would be unable to determine the proximate cause of the automobile going out of control.

Appellant then objects to the court's giving of defendant's instruction No. 15 as identical with Court's Instruction No. 1 reading:

'If you find from a fair preponderance of all of the evidence that Lee E. Shane and Eugene Fields were both guilty of acts of wanton and wilful misconduct which proximately contributed to the cause of the collision and the damages complained of, then your verdict should be for Eugene Fields, even though you should also find that the defendant Eugene Fields was guilty of wilful and wanton misconduct.'

and the refusing of plaintiff's tendered instruction No. 9 reading:

'I instruct you that there is not sufficient evidence to permit you to find that the deceased Lee E. Shane, was guilty of contributory wanton or wilful misconduct in this case.'

Appellant's objection is that there 'was simply no evidence from which the jury could legally infer that Lee E. Shane was guilty of either wanton or wilful misconduct'. The appellant is probably correct in this contention. However, the jury found (in answer to interrogatory #19) that the deceased was not driving the automobile at the time of the accident. Therefore, the jury itself eliminated the possibility of contributory wanton or wilful misconduct and the errors, if any, involved in the instructions here complained of were harmless.

Appellant's final alleged error is the court's giving of interrogatories #20, #21 and #22 reading:

'Question 20. Was the trip undertaken for the benefit of Lee Shane?

'Question 21. Was the trip undertaken at the request of Lee Shane?

'Question 22. Was the trip undertaken for social reasons?'

for the reason that they 'do not relate to any issue in the case and are calculated to mislead the jury'.

While there is some question as to the propriety of these interrogatories, we cannot see how they were harmful. The appellant states in her brief at...