Skorich v. Kochan, 3--474A59

• Docket Nº: No. 3--474A59
• Citation: 363 N.E.2d 1081, 173 Ind.App. 413
• Case Date: June 27, 1977
• Court: Court of Appeals of Indiana

Page 1081

363 N.E.2d 1081 173 Ind.App. 413 Milan SKORICH, Plaintiff-Appellant,
v.
Ronald KOCHAN, Defendant-Appellee. No. 3--474A59. Court of Appeals of Indiana, Third District. June 27, 1977.

Wm. I. Marlatt, Merrillville, for plaintiff-appellant.

Nick Katich, Addison, Stiles & Greenwald, Gary, for defendant-appellee.

HOFFMAN, Judge.

Plaintiff-appellant Milan Skorich brought an action against defendant-appellee Ronald Kochan for personal injuries and property damage sustained in an automobile collision. A trial by jury resulted in a verdict of $1,774, upon which judgment was entered. Thereafter Skorich perfected this appeal alleging as errors the failure of the trial court to give one of his tendered instructions and the jury's verdict awarding what are claimed to be inadequate damages.

The record reveals that on September 9, 1967, Skorich, as a passenger in a car being driven by his son, was proceeding south in the middle lane of Broadway near 55th Street in Gary, Indiana. At the intersection appellee Kochan, driving a pickup truck, made a left turn crossing appellant Skorich's [173 Ind.App. 414] path resulting in the vehicles colliding. As a result the fender of Skorich's vehicle was crushed inward against the wheel and Skorich, himself, suffered personal injuries, having struck his head on the door frame. Appellee Kochan stopped his pickup truck momentarily and then fled the scene. Concerned with his departure and in a dazed state, Skorich began to run in an attempt to get Kochan's license number, but to no avail. Kochan was later apprehended by police.

Thereafter, in order to render the Skorich vehicle mobile, an effort was made to pry

Page 1082

the automobile's fender loose. Conflicting evidence was presented concerning to what extent appellant was involved in this endeavor. However, it was not until having returned home in the damaged car with his son that Skorich noticed that his previously repaired hernia had been damaged and was protruding.

Appellant had had an original hernia operation ten years earlier at Mayo Clinic. Subsequently in 1965 the problem had reoccurred due to a work related accident. This second hernia had just been corrected when Skorich suffered the accident herein.

On September 11, 1967, appellant visited his doctor who diagnosed his injuries from the accident with Kochan as being a cerebral concussion, an abrasion to his forehead and a recurrence of the right inguinal hernia.

On September 23, 1967, Skorich was involved in a second unrelated accident in which, after having stopped because of traffic, another person collided with the rear of his automobile. Appellant sustained further injuries as a result, which were diagnosed as being neck whiplash, stiffness to the back and further aggravation of the hernia. It was subsequent to this second accident that appellant incurred most of his medical expenses including the hernia operation at Mayo Clinic.

At trial Skorich offered evidence of various billings for medical attention and property damage, all of which he [173 Ind.App. 415] attributed to Kochan's negligence in the first accident on September 9, 1967. Appellant also offered an instruction on apportionment of damages which was rejected by the trial court. Thereafter the jury returned a verdict of $1,774 for Skorich.

Appellant's first contention is that the trial court erred in refusing his instruction on apportionment of damages. Such instruction stated:

'If you find that the plaintiff sustained an injury which was caused in part by the negligence of the defendant and in part by some other person or persons and if you cannot determine from the evidence what part of the injury was caused by the defendant, the defendant when sued alone cannot escape liability merely because the damage which resulted from his negligence and that which resulted from the other person or persons cannot be apportioned under the evidence. Under such circumstances the defendant would be liable for the injury if the plaintiff was not guilty of contributory negligence.'

This instruction would require a jury to apportion all damages found upon the defendant regardless of whether his action was the sole cause of all damages claimed. Appellant relies for support on Sherman v. Indianapolis Traction, etc., Co. (1911), 48 Ind.App. 623, 96 N.E. 473, arguing that a defendant cannot escape liability for an injury due to the successive negligence of himself and another simply because the damages which resulted cannot be apportioned under the evidence.

However, Skorich's attempt to apply Sherman to the circumstances of the case at bar misconstrues its holding. Sherman involved an action by a passenger for injuries sustained while alighting from a treetcar wherein an instruction was given that if the pain of colitis suffered from earlier ptomaine poisoning was intermingled with the alleged pain from the interurban accident no...