Deckard v. Adams

203 N.E.2d 303, 246 Ind. 123, 1965 Ind. LEXIS 331

• Court: Indiana Supreme Court
• Decided: January 11, 1965
• Docket: 30,711
• Status: Published

Opinions

Achor, J.

The above matter is before us on petition to transfer, under Supreme Court Rule 2-23. [For Appellate Court opinion, see: Deckard v. Adams (1964), 197 N. E. 2d 317.]

Appellee has filed a motion to dismiss the petition, on the grounds that it does not conform to requirements of Rule 2-23, in that the brief in support of the petition is not separate therefrom.

The applicable part of Rule 2-23 is as follows:

“A petition to transfer a cause from the Appellate Court to the Supreme Court shall be separate from the briefs in support thereof...

Briefs may be filed with and in support of the petition but they shall not be necessary to invoke the jurisdiction of the court. . . .” [Emphasis added.]

No cases have been cited in which this court has construed the above rule. A similar separation requirement is found, however, in Rule 2-22 regarding petitions for rehearing, which provides:

“Application for a rehearing of any cause shall be made by petition, separate from the briefs, . . . stating concisely the reasons why the decision is thought to be erroneous. . . .” [Emphasis added.]

This court noted that it is the declared policy of the legislature [Acts 1881 (Spec. Sess.), ch. 38, §137, p. 240, being §2-1071, Burns’ 1946 Repl.] and of this court that cases be decided upon their merits insofar as possible. Miller, etc. v. Ortman, etc. et al. (1956), 235 Ind. 641, 136 N. E. 2d 17; Flanagan, Wiltrout & Hamilton Indiana Trial and Appellate Practice, §2115, ch. 40, p. 4.

In the above cited case this court held that, although the Rule 2-22 contemplates that a petition for rehearing and the argument in support thereof be filed under separate cover, a petition for rehearing would be accepted even though it set forth in a single document reasons for such rehearing and the argument in support thereof, since said reasons and argument were in separate rhetorical paragraphs, with the grounds or reasons set forth in one paragraph and the argument in support thereof set forth immmediately thereafter.

We have considered the case of Dorweiler v. Sinks (1958), 238 Ind. 368, 151 N. E. 2d 142. In that case this court held that a petition for rehearing violated the separation requirement of Rule 2-22. However, in that case the various allegations of error asserted as reasons for rehearing were commingled seriatim with the arguments in support thereof. Consequently it was held that the commingled arguments must be ignored and stricken as surplusage and that the remainder of the petition for rehearing being inseparably commingled with the argument relative thereto in a manner not capable of rhetorical separation must be stricken also, since, in its depleted form, it was not sufficient to present an issue as contemplated by Rule 2-22.

In the case at bar the petition for transfer asserted that the Appellate Court opinion contravened numerous ruling precedents of this court, each of which related to an erroneous instruction given by the court. In her petition to transfer, appellant, after setting forth the several ruling precedents which the Appellate Court is alleged to have contravened, sets forth the instruction given, appellant’s objection thereto, the ruling precedent as stated by this court, citing authority, and the statement in the Appellate Court opinion which allegedly contravened the ruling precedent of this court as previously stated.

The petition to transfer further employs only such introductory remarks as are necessary to explain the facts and the effect of the legal principles involved. It therefore conforms with the requirement of Rule 2-23, supra.

Next we consider the merits of the case. This was an action involving personal injuries growing out of the operation of an automobile. The verdict was for the defendant-appellee. The court, over the objection of the plaintiff-appellant gave the following mandatory instruction which erroneously cast upon the plaintiff the burden of proving not only that the negligence of the defendant was the proximate cause of the injury but also that the plaintiff was free from contributory negligence. Harper v. James (1965), 246 Ind. 131, 203 N. E. 2d 531. The instruction reads as follows:

“You are instructed that defendant, Ralph Johnson Adams, is not required to disprove the acts of negligence contained in the amended complaint of Carmen Deckard, but the burden is upon Carmen Deckard to prove by a preponderance of the evidence that defendant, Ralph Johnson Adams, was negligent in one or more acts as charged in plaintiff’s amended complaint, and that one or more of such negligent acts was the sole proximate and direct cause of injuries to plaintiff, Carmen Deckard, and failing so to do, your verdict should be against plaintiff, Carmen Deckard, on her amended complaint herein.” [Our Emphasis.]

Appellee contends that the error was not reversible for the reason that the court in other instructions specifically stated that the burden of proving contributory negligence was upon the defendant-appellee. Appellee’s argument is not tenable.

The rule is well settled that:

“ ... If by an instruction the burden of proof is placed on the wrong party the judgment will be reversed. . . .” Johnson v. Samuels (1916), 186Ind. 56, 62, 114 N. E. 977.

Also, this court has repeatedly ennunciated the rule that the error of a bad instruction is not cured by the giving of correct instructions on the same sub-ject. Such instructions are not to be viewed as a whole, with this court on appeal left to determine which of the contradictory instructions the jury should reasonably have believed. Gallivan v. Stickler (1918), 187 Ind. 201, 118 N. E. 679; Indianapolis Traction, etc. Co. v. Henby (1912), 178 Ind. 239, 97 N. E. 313; Fowler v. Wallace (1892), 131 Ind. 347, 31 N. E. 53; Gary Railways, Inc. v. Chumcoff (1952), 122 Ind. App. 139, 96 N. E. 2d 685. See also: Snow v. Sutton (1961), 241 Ind. 364,170 N. E. 2d 816.

As stated in Fowler v. Wallace, supra, at pp, 355-356:

“ ... It is an elementary principle of procedure that the court can not by contradictory instructions leave to the jury the duty of determining which of the two lines of instructions shall be followed, or what rule of law shall control the case. The law must come from the court, and be so declared that the jury can follow it without confusion.”

Appellant also assigns as error and argues that defendant-appellee’s Instruction No. 18 given by the court was erroneous. It is not necessary to a decision in this case that we make an exhaustive analysis of this instruction. It is grossly ambiguous and could only confuse the jury. Therefore, without deciding whether it is patently prejudicial, we concur in appellant’s contention that it should have been refused.

Judgment reversed.

Arterburn, C. J., and Landis, J., concur.

Myers, J., concurs in result.

Jackson, J., dissents with opinion.