Shoemaker v. Bowman
| Decision Date | 23 June 1977 |
| Docket Number | No. 3--875A172,3--875A172 |
| Citation | 173 Ind.App. 392,363 N.E.2d 1278 |
| Parties | Delores L. SHOEMAKER, Administratrix of the Estate of Paul D. Shoemaker, Deceased, Delores L. Shoemaker, Individually, Shannon Shoemaker, and Paul D. Shoemaker, II, b/n/f Delores L. Shoemaker, Appellant (Plaintiff below), v. Clarence BOWMAN, Eugene Schenkel, Glen A. Beery, as Commissioners of Wabash County, Melvin Staggs, Appellee (Defendant below). |
| Court | Indiana Appellate Court |
Parr, Richey, Obremskey & Morton, Lebanon, Peterson & Morton, Rochester, for appellant.
Brown, Brown & Rakestraw, Rochester, Albert J. Schlitt, Browne, Daggett & Schlitt, North Manchester, for Commissioners of Wabash County.
Herbert B. Bent, Rockhill, Kennedy, Pinnick, Sand, Bent & Pequignot, Warsaw, for Melvin Staggs.
Delores L. Shoemaker 1 brought suit against the Commissioners of Wabash County and Melvin Staggs for the wrongful death of her husband, Paul D. Shoemaker. She appeals from a negative judgment which was rendered upon the jury's verdict in favor of the Commissioners and Staggs. She presents three issues for our review:
(1) Were the instructions given by the trial court concerning contributory negligence reversible errors?
(2) Was an instruction which incorporated the contentions of negligence as set forth in the pre-trial pleadings reversible error?
(3) Was the verdict contrary to law?
We find no reversible error, and we affirm.
Paul Shoemaker was driving his car on a Wabash County Road when he saw, according to Delores Shoemaker's testimony, a car driven by Staggs speeding toward them across the one-lane bridge in the center of the road. In an attempt to avoid hitting the car, Shoemaker pulled over into the grass, and the car ultimately came to rest in the water under the narrow bridge. Shoemaker drowned before rescuers could free him from the car. Delores Shoemaker and the two minor Shoemaker children sustained no permanent injuries.
Delores Shoemaker argued at trial that Staggs was liable because he was in the center of the road and caused the accident, and that the Commissioners were liable because the road was not properly posted for speed limits or warnings of the approaching one-lane bridge, and because the bridge had no guard rails.
Staggs testified that he had crossed the bridge and was on the right side of the road (his wheels being about six inches from the edge of the blacktop) and had started up the hill at a speed of 6 or 7 miles per hour when he saw the Shoemaker car coming toward him in the middle of the road. Staggs pulled off the road and nearly stopped. He estimated that as the Shoemaker car passed him it was traveling at about 50 miles per hour. The Shoemaker car missed hitting the Staggs' car by approximately six inches to one foot. Mrs. Staggs, who was a passenger, stated that as she looked back she saw the Shoemaker car cross the road, hit the bridge, and go air-borne into the creek.
Delores Shoemaker argues that the trial court erred in giving to the jury Staggs' instructions numbered 4, 5, and 6. Delores Shoemaker reasons that: (1) the instructions isolated certain Indiana statutes; (2) the instructions informed the jury that if Paul Shoemaker was violating these statutes and if such violation proximately contributed to his injuries and death, such conduct may constitute contributory negligence on the part of Paul Shoemaker; and (3) the instructions omitted any provision that Paul Shoemaker may have violated the statute with justification and excuse. At trial, Delores Shoemaker objected, stating that the three instructions are erroneous because the phrase 'without justification and excuse' is omitted. On appeal, Delores Shoemaker argues that the instructions were diametrically in opposition to certain instructions tendered by her and given by the court which did use the phrase 'without legal justification or excuse' with reference to Staggs' alleged conduct, and Commissioners' alleged negligence.
Indiana Appellate Rule 8.3(A)(7) provides that
'An argument. Each error assigned in the motion to correct errors that appellant intends to raise on appeal shall be set forth specifically and followed by the argument applicable thereto. If substantially the same question is raised by two or more errors alleged in the motion to correct errors, they may be grouped and supported by one argument. The argument shall contain the contentions of the appellant with respect to the issues presented, the reasons in support of the contentions along with citations to the authorities, statutes, and parts of the record relied upon, and a clear showing of how the issues and contentions in support thereof relate to the particular facts of the case under review.
When error is predicated on the giving or refusing of any instruction, the instruction shall be set out verbatim in the argument section of the brief with the verbatim objections, if any, made thereto. Any error alleged in the motion to correct errors not treated as herein directed shall be deemed waived.'
Delores Shoemaker did not base her objection to the trial court's tendering of Staggs' instructions numbered 4, 5, and 6, upon the inconsistencies between them and her tendered instructions. Both at trial and within her motion to correct errors, she limited her argument strictly to the omission of the phrase 'without justification or excuse.' At no point did she enlighten the trial court as to how she was being prejudiced by the omission of the phrase.
On appeal, an appellant is confined to the specific reasons stated in the objections made to the trial court regarding instructions; we will not permit argument on other than those specific reasons. Allman v. Malsbury (1946), 224 Ind. 177, 65 N.E.2d 106. When the grounds for objection to instructions on appeal differ from the grounds stated in the objections made at the trial level, the grounds for objection on appeal are waived. Hendrickson & Sons Motor Co. v. OSHA (1975), Ind.App., 331 N.E.2d 743.
Delores Shoemaker's trial objections to the instructions were based upon the incompleteness of the statements of law. None of the instructions were mandatory. Yet, Delores Shoemaker did not tender substitute instructions to make the statements of law more complete. She had the burden and duty to submit instructions which would cure any omission in the instructions given to the jury. Wendt v. Seiler (1962), 133 Ind.App. 585 at 590, 182 N.E.2d 801. Furthermore, we have reviewed the transcript and do not find the introduction of any evidence pertaining to the theory that Paul Shoemaker did act with legal excuse or justification. Had Delores Shoemaker submitted instructions completing the object-to instructions, and had the trial court refused them, there still would have been no error where such instructions were not supported by the evidence. Bivins v. State (1970), 254 Ind. 184, 258 N.E.2d 644; LaDuron v. State (1973), Ind.App., 299 N.E.2d 227.
We find no error in the giving of Staggs' instructions 4, 5, and 6.
Staggs tendered a voluminous instruction which incorporated all of the theories of negligence which Delores Shoemaker had relied upon in her pre-trial pleadings and the separate theories of defense relied upon by defendants Staggs and Commissioners in their pre-trial pleadings. In essence, this huge instruction attempted to synopsize the trial for the jury. Delores Shoemaker's objection to this instruction in the trial court was as follows:
'. . . (It is) simply a reiteration of the allegations contained in plaintiff's pre-trial order entered herein and did not constitute all of the contentions . . . and all of the evidence submitted in this cause.
Plaintiff further objects to said instruction for the reason that pursuant to Trial Rule 15, the contentions of the plaintiff are not the evidence in the case and that it is pursuant to Trial Rule 15, the evidence as presented to the jury establishes for the jury those things which they must determine to prosecute negligence on the part of the defendant or defendants herein. Also pursuant to the case of, 'Chitwood vs Ayr-Way Store,' it is not necessary for the plaintiff, in fact, it is prejudicial error for the Court to instruct the jury as to the alleged contentions as set forth in the pre-trial entry for the reason that the evidence submitted to the jury may well have included other contentions, they may have and did include other contentions not set forth in said instruction.' (sic)
This Court has held that a party who makes a proper request is entitled to have an instruction based on his own theory of the case submitted to the jury if it is within the issues and there is evidence to...
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