L.S. Ayres Company v. Hicks

On Petition for Rehearing.

Shake, C. J.

The appellee’s petition for rehearing challenges only that part of the foregoing opinion which holds that reversible error was committed in the giving of the appellee’s instruction No. 6. It is urged that: (1) Any error in the giving of this instruction was waived if it was presented; (2) standing alone, the instruction is not erroneous; and (3) it is not erroneous when considered with instructions Nos. 7 and 8 tendered by the appellant and given to the jury.

. As to the first point it may be observed that it affirmatively appears from the record and from the appellant’s original brief that the giving of in-struction No. 6 was one of the grounds of the motion for a new trial and that, the overruling of this motion was duly assigned as error on appeal. The proposition supporting this assigned error was stated in the appellant’s original brief as follows: “There was error in the sixth instruction requested by plaintiff and given, which instruction improperly included ■ humiliation as an element of plaintiff’s damages.” This was followed by the citations of many authorities. The question arises then whether we went outside the briefs in concluding that instruction No. 6

*99

was bad because it embraced improper elements of . damages other than humiliation. While alleged errors not presented and discussed in the appellant’s brief will be treated as waived, this court does not regard itself as required to accept or reject the specific reasons advanced by a litigant to sustain his contentions.

Keeshin Motor Express Co.

v.

Glassman

(1942), 219 Ind. 538 , 38 N. E. (2d) 847. The practice rule to the effect that alleged errors, not specifically pointed out in the appellant’s brief, will be treated as waived was not intended to circumscribe the reviewing tribunal. The purpose of the rule is to relieve the court of the burden of searching the record and briefing the case and to place that responsibility on the party asserting error. It will not be carried so far as to require the court to close its eyes to that which is apparent. To do so would not infrequently place us in the unhappy situation of lending tacit approval to an instruction palpably bad on its face, and this could only result in confusing the law and misleading the profession. In

Big Creek Stone Co. et al.

v.

Seward et al.

(1895), 144 Ind. 205, 210 , 42 N. E. 464 , 43 N. E. 5 , it was observed in this connection that “If the court were limited to the arguments and reasoning of counsel in its decisions of cases, to the exclusion of its own observations, many cases would lead us far from what we understand to be the true object of the court.” In the instant case we have done nothing more than to state cogent reasons, not advanced by counsel, to sustain an assignment-, properly made and presented, to the effect that reversible error was committed in the giving of the appellee’s sixth instruction. It should be noted that the practice in this regard has been changed by Rule 1-7, not in effect at the time the case at bar was tried, which provides that no error with respect to the giving of instructions

*100

shall be available as cause for a new trial or on appeal except upon the specific objections made before argument.

The appellee’s instruction No. 6 was as follows:

“If,

under the law and the evidence in this case, you find that the plaintiff is entitled to recover, it will then become your duty to fix or determine the amount of his damages. In determining the amount-of damages which you will award plaintiff, it is proper to consider every phase of his injuries, as charged in the complaint, and which you find have been established by a preponderance of the evidence. You may consider the kind and character of his injuries, whether the same are temporary or permanent, any physical pain or mental suffering or humiliation which the plaintiff has suffered or will suffer in the future, if the same be shown by the evidence. It is also proper for you to consider, if shown by the evidence, the effect of the injuries which plaintiff has sustained upon his ability to earn money after he becomes 21 years of age from any proper business, calling, or profession, and the kind and character of work which plaintiff will be prevented from doing after becoming 21 years of age, as a result of his injuries, if shown by the evidence, and from a consideration of all -the facts shown in evidence bearing upon said subject, it will then be your duty to award the plaintiff such sum as will fairly and fully compensate him for all his said injuries which you find from a preponderance of the evidence he has sustained, as charged in the complaint, as the direct and proximate result of any negligence of the defendant, which you find charged in the complaint and established by a preponderance of all the evidence in this case, not exceeding the sum demanded -—$80,000.00.”

In the second sentence of the above instruction the court advised the jury that, “In determining the amount of damages which you will award plaintiff, it is proper to consider every phase

of his

injuries, as charged in the complaint, and which you find have been established

*101

by a preponderance of the evidence.” All of the appellee’s injuries, including those received before as well as after the alleged omissions of negligence upon which the appellee must rely as a basis of recovery, were described in the complaint and evidence. The part of the instruction quoted did not undertake to limit the appellee’s damages to those proximately resulting from a violation of the duty resting on the appellant to exercise reasonable care to avoid an aggravation of the appellee’s injuries. “The rule deducible from (the) cases is that where facts are allowed to go in evidence which furnish an incorrect basis for the assessment of damages, an instruction which directs the jury to determine from all the facts, or all the evidence, the amount of recovery, is erroneous.”

Stewart

v.

Swartz

(1914), 57 Ind. App. 249, 253 , 106 N. E. 719, 721 . If the quoted sentence had been separately numbered and given as a complete instruction, it would clearly be erroneous.

The appellee contends, however, that the instruction is saved by the concluding part thereof wherein the jury was told that “. . . from a consideration of all the facts shown in evidence bearing upon said subject, it will then be your duty to award the plaintiff such sum as will fairly and fully compensate him for all his said injuries which you find from a preponderance of the evidence he has sustained, as charged in the complaint, as the direct and proximate result of any negligence of the defendant, which you find charged in the complaint and established by a preponderance of all the evidence in the case, not exceeding the sum demanded. . . .” The first quoted part of the instruction, though a misstatement of the law, is short, clear, and unambiguous, while the part last quoted is lengthy, involved, and dependent upon punctuation for its meaning. While a skilled grammarian

*102

or a lawyer, experienced in determining the meaning of written instruments, might, perhaps, conclude after careful study that the latter part of the instruction sufficiently modified or amplified the former, this cannot be the test for determining whether a jury usually composed of

laymen was

correctly instructed as to the law. Bearing in mind the theory upon which the case was apparently tried, we cannot escape the conviction that if instruction No. 6 standing alone was not positively erroneous it was, nevertheless, so confusing and misleading that it ought not to have been, given.

Relying upon the rule that instructions should be considered as a whole and that if as a whole they state the law correctly there is no reversible error even though a part of the instructions considered alone might be erroneous, the appellee urges that any error in instruction No. 6 was cured by the following instructions tendered by the appellant and given to the jury:

No. 7.

“Another charge of negligence in the complaint is failure to stop the escalator with reasonable promptness after the plaintiff’s position of peril should have been known. The Court instructs you that before any verdict could be based on this charge it would have to appear that such delay in stopping the escalator was the proximate cause of the plaintiff’s injury, and if you should believe from the evidence that the plaintiff was injured practically at the instant he fell down, and that his injuries were not materially increased by delay in stopping the escalator, then you would not be justified in basing any verdict against the defendant on this charge of negligence.”

No. 8.

“If you should believe from the evidence that the defendant was guilty of some delay in stopping the escalator after the plaintiff fell, and that such delay somewhat increased the plaintiff’s injuries, you could not base a verdict for the plaintiff on that

*103

ground as to anything except the extent to which the injuries were thereby increased, and if the evidence does not establish that the delay did increase the injuries, you could not award anything to the plaintiff on account of such delay, even if you find that such delay existed.”

An examination of the appellant’s instructions Nos. 7 and 8 discloses that they relate to the subject of negligence rather than the measure of damages. Both deal with the appellant’s duty to the appellee. Neither informs the jury as to the elements to be taken into consideration in assessing damages if it finds there was a violation of that duty. While these instructions go further than they should have gone with respect to the appellant’s liability and authorize a recovery on grounds not recognized in the principal opinion, we cannot regard them as curing the error in the appellee’s instruction No. 6.

The petition for rehearing is denied.

Roll, J., dissents.

Note.—Reported in 41 N. E. (2d) 195.