Opinion
No. 27,927.
Filed October 25, 1943.
1. JURY — Voir Dire Examination — Struck Jury — Interest or Connection With Named Insurance Carrier — Question Proper. — In an action for damages for injuries sustained in an automobile collision, it was proper for plaintiff's attorney, in the voir dire examination of a struck jury, to ask each member if he had any interest in or connection with a named insurance carrier, where the attorney out of the hearing of the jury, informed the court that such company was the insurer of defendant's automobile and that he had been negotiating with an adjusting company representing it, since if any interest was shown to exist a challenge for cause could be used. p. 630.
2. APPEAL — Briefs — Propositions and Authorities — Instruction Characterized as Correctly Defining Standards of Conduct of Parties — Claimed Error Obviated. — Where appellant, under a proposition in his brief, characterized an instruction as correctly defining the standards of conduct and care governing the rights of the parties to the action which grew out of an automobile collision, he cannot be permitted to question its correctness, and the claimed error therein was obviated. p. 631.
3. TRIAL — Instructions — Tender — Duty of Party Desiring More Complete Instruction. — An instruction that the standards fixed by statutes and court decisions concerning the operation of automobiles is not unyielding under any and all circumstances and that each driver must use reasonable care in the light of the facts and circumstances involved, was not mandatory, and a defendant could not predicate error on the lack of its fullness without offering an instruction which contained the desired elements. p. 632.
4. TRIAL — Instructions — Correct Statement Given — Duty of Party Desiring That Added Elements Be Stated. — An instruction that each driver of an automobile must use reasonable care, and that even though defendant was approaching from the right, that fact would not relieve her from using reasonable care, was not mandatory and was correct so far as it went, and defendant cannot complain because it did not include elements as to the location or position of plaintiff's car, where she did not offer instructions containing the added elements. p. 632.
5. TRIAL — Instructions — General Law Governing Motorist Approaching Street Intersection. — An instruction merely stating the general law relative to a motorist approaching an intersection from the right, and that plaintiff had the right to assume that others who were using the highway would use ordinary care, was not subject to the criticism that the court invaded the province of the jury and assumed that plaintiff reached the intersection first. p. 632.
6. TRIAL — Instructions — Damages — Elements to Be Considered — Instruction Not Mandatory. — An instruction which detailed what was to be taken into consideration in determining damages and applied the words "if any has been shown," to each part of the instruction, was not mandatory or misleading, and in the absence of evidence tending to permit the jury to consider improper elements in computing damages, could not be the basis for reversible error. p. 633.
7. APPEAL — Presentation in Lower Court of Grounds of Review — Instructions — Objection Not Made in Lower Court Not Available on Appeal. — An objection not raised to an instruction in the lower court is not available on appeal. p. 633.
8. APPEAL — Harmless Error — Instructions — Statement of Motor Vehicle Traffic Act — Word Omitted — Prejudice Not Shown. — Where an instruction which omitted the word "business" from what purported to be a copy of a motor vehicle traffic act was as favorable to defendant as he was entitled to have, and no prejudice or harm was or could be shown, it was unnecessary for the Supreme Court to decide whether or not such statute was repealed by implication. p. 633.
9. APPEAL — Presentation in Lower Court of Grounds of Review — Instructions — Contention Not in Conformity With Objections Made Below — Effect. — Where objections in the trial court to an instruction were that it was misleading, did not go far enough, and was in conflict with another instruction, a contention on appeal that it incorrectly defined proximate cause was not available, since such contention was not based on or in conformity with any objection made below. p. 634.
10. APPEAL — Harmless Error — Invited Error — Instructions Concerning Proximate Cause. — Error, if any, in the language used in an instruction defining proximate cause was invited and therefore not available to a party who used the same language in one of her instructions. p. 634.
11. TRIAL — Instructions — Construction — Charge to Be Considered as a Whole. — Instructions must be considered as a whole, and if when so considered, they fairly inform the jury of the rights and duties of the parties to the action, they are sufficient. p. 634.
From the Warrick Circuit Court; J. Harold Hendrickson, Judge.
Action by Earl Reasner against Helen Riechmann for damages for personal injuries sustained in an automobile collision. From a judgment for plaintiff, defendant appealed. (Transferred from the Appellate Court under § 4-215, Burns' 1933, § 1359, Baldwin's 1934.)
Affirmed.
Frederick P. Bamberger and Edmund F. Ortmeyer, both of Evansville ( Leonard Ashley, of Boonville, of counsel), for appellant.
John H. Jennings, of Evansville, for appellee.
This action was brought by the appellee against the appellant to recover damages for personal injuries allegedly sustained by reason of the collision of an automobile owned and operated by the appellee with an automobile operated by the appellant. The collision occurred at a street intersection in the City of Evansville, Indiana.
The only assigned error is the overruling of the motion for a new trial.
In the voir dire examination of the jury the appellee's attorney asked each of them whether or not he had any interest in or connection with the Gulf Insurance Company. Objection to 1. this question having been overruled, the appellant then moved to discharge the panel, which motion was likewise overruled. Error is assigned on these rulings. It is claimed that since this action was tried by a "struck jury" under § 4-3313, Burns' 1933, § 333, Baldwin's 1934, the only challenge available to the parties was for cause; that interest in or connection with the Gulf Insurance Company would not have been a proper ground for removal for cause, and that the propounding of the question was in "bad faith," and for the sole purpose of informing the jury that an insurance company was interested.
The record shows that when the objection to the question was made, the appellee's attorney, out of hearing of the jury, informed the court that he had been negotiating with the Duncan Adjusting Company, that the Duncan Adjusting Company represented the Gulf Insurance Company, that the defendant's car was insured in the Gulf Insurance Company, and that he had a letter in his file from the adjusting company relative to this case. In the absence of a counter-showing, the court must have concluded that the representations thus made by an officer of his court were true, and it was not error for the court to permit the appellee to ascertain whether or not any member of the panel was interested in the Gulf Insurance Company as agent, director or otherwise, to the end that if a proper interest was shown, a challenge for cause could be used.
We now proceed to an examination of the claim of error in the giving of instruction number three, given on the court's own motion. The appellant under proposition "E" characterized 2. this instruction as correctly defining the standards of conduct and care governing the rights of the parties, in the following language:
". . . and instruction No. 3, given by the court of its own motion, which correctly advised the jury as to the standards of care fixed by law, . . . which said instructions . . ., correctly informed the jury as to the standards of conduct governing the rights of the parties, and likewise correctly informed the jury as to what standard should be applied in passing upon the questions before them." Appellant's brief, p. 222.
Having thus measured and evaluated this instruction, appellant cannot be permitted to question its correctness, and this claimed error is thus obviated.
Appellant also claims error in the giving of instructions number one, three, five, six, seven and eight tendered by appellee.
Instruction number one told the jury that the standards fixed by statutes and court decisions are not unyielding under any and all circumstances, and that each driver must use reasonable 3. care in the light of the facts and circumstances involved.
This instruction is not subject to the objections raised. It was not mandatory, and appellant cannot predicate error on the lack of fullness without offering an instruction which contains the desired elements.
Instruction number three charges that each driver of an automobile must use reasonable care, and even though appellant was approaching from the right, that fact would not relieve 4. her from using reasonable care. The objection here is that the instruction does not include elements as to the location or position of appellee's car. The instruction was not mandatory and was proper as far as it went. Appellant should have offered instructions containing the added elements. This she did not do and she is not in position to complain because the instruction did not go far enough. Marmon Motor Car Co. v. Schafer (1931), 93 Ind. App. 588, 591, and cases cited, 178 N.E. 863, 864.
Instruction number five is not subject to the criticism that the court invaded the province of the jury and assumed that appellee reached the intersection first. It merely stated 5. the general law relative to the one approaching an intersection from the right, and that appellee had the right to assume others who were using the highway would use ordinary care.
The objection to instruction number six is that it permitted consideration of evidence not related to the subject of damages. Appellant does not point out any evidence that would or 6. could be improperly considered. The instruction details what is to be taken into consideration in determining damages and includes the words "if any has been shown" applied to each part of the instruction, and no jury of average intelligence could have been misled. The instruction was not mandatory in form, and in the absence of evidence tending to permit the jury to consider improper elements in computing damages, could not be the basis for reversible error. Thomas Madden, Son Co. v. Wilcox (1910), 174 Ind. 657, 91 N.E. 933; Marmon Motor Car Co. v. Schafer (1931), 93 Ind. App. 588, 591, 178 N.E. 863, 864.
The claim, that instruction number six offered by appellee and number seven given by the court on its own motion, were confusing to the jury, is not well founded. The former detailed the elements to be considered in computing damages, the latter sets out forms of verdicts and an admonition that the amount found must be based on the evidence "on that subject."
The authorities cited by the appellant on the above and foregoing proposition are cases where a mandatory instruction was given or where the facts and conditions detailed were so different that they shed no light on the precise question involved.
The appellant complains of instruction number seven because the word "business" is omitted from what purports to be a copy of § 47-516, Burns' 1933, § 11169, Baldwin's 1934. This 7, 8. objection was not raised in the lower court and is not available here. Rule 1-7. Appellant also claims that this statute was repealed by implication by Acts 1939, ch. 48, p. 289, § 47-1801, Burns' 1940 Replacement, § 11189-11, Baldwin's Supp. 1939. However, the instruction given was as favorable to the appellant as she was entitled to have, and no prejudice or harm has been or could be pointed out in appellant's brief. We need not decide whether or not the statute was repealed by implication.
By proposition, instruction number eight is challenged on the ground that "proximate cause" is incorrectly defined in the instruction. The objections below were: 1. That the 9. instruction was misleading. 2. That it did not go far enough. 3. That it is in conflict with instruction number six tendered by the defendant. The proposition made here is therefore not based on or in conformity with any objection made below and is not available. Rule 1-7.
Moreover, the appellant used the same language in its instruction number seven, and if the language used to define proximate cause was erroneous, it was invited. Coca Cola 10. Bot. Wks. of Evansville v. Williams (1942), 111 Ind. App. 502, 37 N.E.2d 702.
We must consider the instructions as a whole, and since, when so considered, they fairly informed the jury of the rights and duties of the parties to this action, they are sufficient. 11. Southern Ind. Gas Electric Co. v. Storment (1934), 206 Ind. 25, 188 N.E. 313.
In Mishler v. Chicago, etc., R. Co. (1919), 188 Ind. 189, 195, 122 N.E. 657, 659, this court said:
"The verbal niceties and fine distinctions which analytical minds are capable of making in the use of words are not to be invoked to hamper trial courts, and to work reversals in this court, when it is plain that a man of ordinary understanding would not be misled."
Finding no reversible error, the judgment is affirmed.
NOTE. — Reported in 51 N.E.2d 10.