White v. Evansville American Legion Home Association

• Decision Date: 11 June 1965
• Docket Number: No. 2,No. 19999,19999,2
• Citation: 207 N.E.2d 820
• Parties: Anna Mary WHITE, Appellant, v. EVANSVILLE AMERICAN LEGION HOME ASSOCIATION, Appellee
• Court: Indiana Appellate Court

Page 820

207 N.E.2d 820

Anna Mary WHITE, Appellant, v. EVANSVILLE AMERICAN LEGION HOME ASSOCIATION, Appellee.

No. 19999.

Appellate Court of Indiana, Division No. 2.

June 11, 1965.

Rehearing Denied July 6, 1965.

Opinion Superseded 210 N.E.2d 845.

John H. Jennings, Harold M. Wilson, Jr., Evansiville, for appellant.

Bamberger, Foreman, Oswald & Hahn, Evansville, for appellee.

SMITH, Judge.

This is an action brought by the appellant against the appellee for damages arising from personal injuries alleged to have been sustained as the result of negligence of the appellee in furnishing appellant with a defective chair in appellee's amusement hall.

This action is of long standing--it was originally filed in the Vanderburgh Probate Court in March 1954; and was afterwards venued to Warrick Circuit Court wherein the following proceedings were had.

The original complaint in one paragraph was amended, by interlineation, to supply a prayer for damages which had been inadvertently omitted from the complaint. The amended complaint charged that the appellee was a domestic corporation which owned a parcel of ground and an amusement hall located thereon in the City of Evansville, Indiana, in which the appellee sponsored, among other things, Bingo games. The amended complaint specifically alleged that on February 26, 1953, appellant purchased a ticket from appellee to be used for the purpose of playing Bingo; and that upon entering the amusement hall, she attempted to seat herself upon a chair furnished by appellee, which chair immediately collapsed and fell, thereby causing her personal injuries. The amended complaint further alleged that the building and the collapsed chair were both owned by the appellee and were both under the exclusive control of the appellee; and that said cause of action was one which, in the ordinary course of things, would not have arisen except for the negligence of the appellee.

To this amended complaint, as amended by interlineation, the appellee filed its answer.

Upon appellant's amended complaint, as amended by interlineation, and appellee's answer thereto, this cause was tried the first time by a jury and a verdict was returned in favor of the appellant in the amount of $18,000.00, upon which verdict judgment was rendered and from which an appeal was taken to this Court. The cause was thereafter transferred by the Appellate Court to the Supreme Court of Indiana and the judgment of the lower court was reversed by the Supreme Court with instructions to the court below to grant a new trial.

The trial court thereupon granted a new trial and the cause proceeded a second time to trial on appellant's amended complaint, as amended by interlineation, and appellee's answer thereto. On the second day of said trial the appellant filed an additional paragraph of complaint. Upon the third day of said trial, and, upon appellee's motion to withdraw the submission of the cause from the jury, the court ordered that the jury be discharged, that the submission of the trial be withdrawn from the consideration of the jury, and that the trial of said cause be continued.

Paragraph two of amended complaint, after repeating the allegations of the amended complaint, as amended by interlineation (paragraph one), in substance alleged that the chair in which the appellant attempted to seat herself was and had been in a defective condition in that the curl of the rivet supporting the right legs of the chair had completely chipped and worn away, that the cross-brace supporting the rear legs had become unwelded, and that the rubber tip fitted to the left front leg was missing. It charged appellee with four specific acts of negligence, namely: (1) in furnishing appellant with a defective chair when it knew, or in the exercise of reasonable care should have known, of the condition of the chair; (2) in failing to repair and maintain the chair; (3) in failing to test or inspect the chair; and (4) in failing to warn appellant of the defective condition of the chair.

The appellee filed a motion to strike certain parts of the second paragraph of the complaint which motion the court overruled. Thereafter the appellee filed a demurrer to said second paragraph of the complaint which also was overruled by the court.

The appellee then filed its first and second paragraphs of answer to appellant's paragraph two of the complaint. Paragraph one of the answer denied the material averments contained therein, and the second paragraph of answer specifically charged that the alleged cause of action stated therein was barred by the Statute of Limitations.

The appellant filed a reply to the second paragraph of the appellee's answer denying all of the material allegations therein.

Upon the issues presented by the amended complaint, as amended by interlineation (paragraph one), and paragraph two of the amended complaint and the respective answers thereto, and over the objections of the appellee to the submission of the amended complaint, as amended by interlineation (paragraph one), the cause was submitted a third time for trial.

On the third trial, at the close of appellant's evidence in chief, the trial court sustained a written motion of the appellee to direct a verdict in favor of the appellee on the issues joined in the amended complaint, as amended by interlineation (paragraph one). The court, at the conclusion of all of the evidence, gave to the jury its written peremptory instruction directing the jury to find for the appellee on the amended complaint, as amended by interlineation (paragraph one), and the jury thereafter returned its verdict in favor of the appellee as directed by the peremptory instruction. Thereupon the appellee moved for judgment on the said verdict and the court rendered judgment thereon. No motion for a new trial was filed and no appeal was taken from this judgment.

As to the remaining issues as alleged and set forth in paragraph two of appellant's complaint and the answers of the appellee thereto, at the close of appellant's evidence in chief, the appellee filed its motion for a directed verdict which motion the trial court overruled. Thereafter the cause was submitted to the jury on paragraph two of the complaint, and the jury failing to reach a verdict, was thereupon discharged.

A change of venue from the judge was taken and, after qualification of a special judge, this cause was submitted the fourth time for trial. At this fourth trial, before the commencement of the trial and before the impaneling of the jury, the appellee filed its written objections to the impaneling of the jury, the submission of appellant's paragraph two of the complaint for trial and to any further proceedings being had in the trial of this cause. The court overruled said written objections and the cause was thereupon submitted to trial before a jury on the issues presented by paragraph two of the amended complaint and the answers thereto.

The fourth trial resulted in a verdict and judgment for the appellee; from which judgment this appeal has been taken.

The sole error assigned by appellant, Anna Mary White, is that the trial court erred in overruling the motion for a new trial.

The appellant's motion for a new trial recites thirty-two specifications of error as follows: (1) specification number 1 alleges that the verdict of the jury is contrary to law; (2) in specifications numbered 2 to 29, both inclusive, the plaintiff contends that the trial court erred in giving to the jury certain instructions tendered and requested by the defendant; (3) in specifications numbered 30 and 31 the plaintiff maintains that the trial court erred in refusing to give two instructions tendered and requested by the plaintiff, the same being plaintiff's instruction number 5 and instruction number 6; and (4) in specification number 32 the plaintiff contends that the trial court erred in admitting into evidence defendant's Exhibit #3.

The appellant contends that the court erred in giving instruction number 4, which reads as follows:

'The court instructs you that before the plaintiff can recover in this action she must prove by a preponderance of the evidence that----

1. The chair in question was defective to the extent that it was unsafe for public use, and

2. The defendant knew or in the exercise of reasonable care should have known that the chair was defective and unsafe for public use, and

'3. the injuries sustained by the plaintiff, if any, were the proximate result of such defect.' (Emphasis supplied)

The appellant asserts that instruction number 4 is erroneous because the law does not require the plaintiff as an individual to prove anything. The appellant urges that the use of the phrase 'she must prove by a preponderance of the evidence' misled the jury in so far as it instructed the jury to consider only the testimony of the plaintiff and precluded the consideration of the testimony of other witnesses produced by the plaintiff in support of her cause of action.

It is apparent that the appellant has overlooked the court's preliminary in struction number 2 which defined the phrase 'preponderance of the evidence' and informed the jury as to what evidence they might consider on any issue regardless of which party has the burden of proof as to said issue. Instruction number 2 clearly informed the jury that they must consider all of the evidence on any issue to determine whether it was established by a preponderance of the evidence and not merely the evidence of the party having the burden of proof. It is fundamental that when reviewing an instruction given by the trial court such instruction must be read in the light of all other instructions given by the court. McClure v. Miller (1951), 229 Ind. 422, 435, 98 N.E.2d 498; Reichmann v. Reasner (1943), 221 Ind. 628, 634, 51 N.E.2d 10.

Where an instruction is given directing the jury to consider all the evdience as to any issue, a further instruction informing the jury that the...