Knoefel v. Atkins ( 1907 )

Dissenting Opinion.

Roby, J.

I do not agree to the reversal of this judgment. The instruction which is held to be erroneous is in terms as follows: “If you find for the plaintiff, it will be your duty to assess the damages which, in your judgment, she ought to recover. The damages cannot exceed the sum of $15,000 demanded in the complaint. In fixing the amount of damages you will consider all the circumstances of this case as shown ly the evidence, the pain and suffering endured by the plaintiff, the injury to her health, loss of strength, the anxiety and privation, if any, which the plaintiff has already suffered, or may hereafter suffer, occasioned by the use of the drug, and, upon all the evidence, you are to award her such sum as, in your judgment, will- fairly compensate her for the injuries she has sustained.” There is no substantial difference between that portion of this instruction which is italicized in the quotation just given, and that portion of the instruction which is also set out and italicized in the opinion of the Supreme. Court in the ease of Monongahela River, etc., Coke Co. v. Hardsaw (1907), 169 Ind.—, which was reversed because of the giving of such instruction, and the decision in that case, as announced,, leads to the reversal of this one. The language used in the opinion in that case is in part as follows: “That the portion of the instruction embraced in italics is erroneous is beyond controversy. City of Delphi v. Lowery [1881], 74 Ind. 520, 39 Am. Rep. 98, and authorities cited; Broadstreet v. Hall [1904], 32 Ind. App. 122. By the charge in question the court gave the jury complete liberty in the estimation of damages to consider all the facts and circumstances in evidence in the case, without any regard to their relevancy to] or bearing upon, the issue of damages. Had the court added the words ‘relevant thereto’ or ‘which have any bearing thereon’ a different question would be presented.”

If the statement that the question is “beyond controversy” is to be taken as meaning that the Supreme Court will not consider it, that the conclusion announced “is so whether it is so or not,” then it might as well be accepted without comment; but I choose to believe, for- the present, that the positiveness of the assertion is due to lack of information upon the subject, and that, being inadvertently made, it will not operate to prevent the application of correct legal principles to the facts presented. City of Delphi v. Lowery, supra, and Broadstreet v. Hall, supra, are the only Indiana cases cited to this point in Monongahela River, etc., Coke Co. v. Hardsaw, supra. The latter of these cases (Broadstreet v. Hall, supra) is based upon the former, and therefore it, as well as the case of Monongahela River, etc., Coke Co. v. Hardsaw, supra, rests, so far as authority is concerned, solely upon City of Delphi v. Lowery, supra. In that case the trial court admitted incompetent evidence directly addressed to the question of damages. It permitted proof to be' made, over objection, that the intestate left his family in a destitute condition. The court declared this evidence incompetent, but held that the ground of its incompetency not having been stated in the trial court no question was presented upon appeal. The evidence was not addressed to any issue in the case except to the amount of recovery, and was calculated to prejudice defendant. ' An instruction was given in terms as follows: “If you find for the plaintiff, in assessing her damages, you may take into consideration the age of the deceased, his habits and occupation, and from all the facts determine what amount the plaintiff should recover, not exceeding $5,000.” The court said: “This instruction, as applied to the facts which the court permitted the appellee to prove, was'erroneous. Where, as here, 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’ the amount of the recovery is erroneous. ’ ’ It further said: ‘ ‘ The evidence of this fact was unquestionably emphasized by its going to the jury over the objection of the appellant. In directing the jury to consider ‘all the facts,’ they were required to consider the fact that the appellee’s intestate left his family in poverty and want, and this was an element which ought not to have entered into the consideration of the jury.” The foregoing quotations state the ground of reversal and bring the case within the doctrine that “if evidence not admissible under the pleadings is admitted over objections made at the proper time, it will be erroneous to give instruction's based on such evidence.” 1 Blashfield, Instructions to Juries, §84, and authorities cited. And see 11 Ency. Pl. and Pr., 165, and authorities cited in note 2. There is language used in City of Delphi v. Lowery, supra, on page 528, which was copied in Broadstreet v. Hall, supra, on page 129, and upon which the latter case was based, which, together with the authorities cited — the same ones in both cases — is the sole support of Monongahela River, etc., Coke Co. v. Hardsaw, supra. That language is as follows: “Where there are facts given in evidence which ought not to be considered in estimating damages, the instructions of the couit should inform the jury what facts should be considered by them in making their estimate, and not leave it to them to take into account facts which have no legitimate bearing upon that branch of the case. Chicago, etc., R. Co. v. Becker [1875], 76 Ill. 25; Steel v. Kurtz [1876], 28 Ohio St. 191; Blake v. Midland R. Co. [1852], 10 Eng. L. & Eq. 437; Telfer v. Northern R. Co. [1862], 30 N. J. L. 188.”

A review of these cases is interesting. Chicago, etc., R. Co. v. Becker, supra, was a case in which a parent sought to recover damages on account of the death of his infant son, an instruction, by which the jury were directed to “assess such damages as they believe to be right,”-was held to be erroneous in permitting a recovery on account of the mental anguish of the parent. In Steel v. Kurtz, supra, the action was for damages on account of the death of a married woman, who left a husband, brothers, and sisters. The court treated the brothers and sisters as the “next of kin” for whose benefit the action was brought, and instructed that, no damages to them having been shown, the verdict should be for nominal damages only. The husband was ignored, and the court on appeal declared him to be the next of kin and reversed the judgment. Blake v. Midland R. Co., supra, decided by Lord Coleridge, “turns entirely upon the construction of the recent statute. 9 and 10 Vict., c. 93.” Telfer v. Northern R. Co., supra, holds that in a case under the statute to recover damages for death caused by negligence only pecuniary loss can be allowed. The question is decided upon the evidence. Blake v. Midland R. Co., supra, is cited. No question relating to the giving of instructions was in either case, and neither of the four cases, first cited in City of Delphi v. Lowery, supra, and a second time cited in Broadstreet v. Hall, supra, has even a remote connection with the proposition which it is supposed to support.

It thus appears that the doctrine said to be “beyond controversy” originated in a dictum, and is not supported by a single case ever cited to it by either the Supreme or Appellate Court. This condition leads to a search for some established legal principle upon which it can rest, and to this search nothing which has been written upon the subject offers any assistance. “The fact that a charge may be too general cannot be assigned for error unless the complaining party makes request for more specific instructions.” Hughes, Instructions to Juries, §7. See, also, 11 Ency. Pl. and Pr., 217, and note 5, citing seventy Indiana cases. ‘1 Evidence competent only for some specific purpose should be limited to that particular purpose by proper instructions, and a refusal so to instruct is error.” Hughes, Instructions to Juries, §109. “An instruction for one party containing terms or expressions which perhaps ought to be explained, cannot be complained of as error if the party complaining fails to request instructions explaining such terms or expressions.” Hughes, Instructions to Juries, §6. And see Treschman v. Treschman (1902), 28 Ind. App. 206; Baltimore, etc., R. Co. v. Conoyer (1898), 149 Ind. 524; Summit Coal Co. v. Shaw (1896), 16 Ind. App. 9; Hughes v. Parker (1897), 148 Ind. 692. In the somewhat noted criminal case of Hinshaw v. State (1897), 147 Ind. 334, 381, the rule was stated, in connection with facts analogous in principle to those here involved, as follows: “But they say the instruction is bad for another reason, namely: because the court did not tell the jury what were ‘subsidiary facts,’ ‘evidentiary facts’ and ‘essential elements of the crime charged.’ That objection is a concession that the instruction was correct as far as it went, but that it did not go far enough to define what was meant by those terms. It is thoroughly settled that an instruction objected to because it does not go far enough, is not an available error unless the complaining party tenders an instruction to the court covering the omitted ground and the court refuses to give it, to which refusal there is an exception.” Powers v. State (1882), 87 Ind. 144; Behymer v. State (1884), 95 Ind. 140; 11 Ency. Pl. and Pr., 224. The rule is necessary to the orderly administration of justice and the fair trial of causes.

Lawsuits frequently involve more than one issue of fact. In the case at bar, one' matter to be determined was whether the defendant was liable, involving various matters of fact, and another was the amount of recovery, if any. Evidence relevant to any one part of the ease was admissible, and it was the duty of the jurors to find all facts from the evidence. They were told to determine the amount of plaintiff’s recovery, if any, from a consideration of all the evidence. There may have been cases in which judgments have heretofore been reversed because of a direction to the jury to find from the evidence and from all the evidence, but I have not been able to discover them. Instructions have been frequently questioned upon the ground that the jury were not restricted by.them to assessment of damages from the evidence. The case of Chicago, etc., R. Co. v. Thrasher (1905), 35 Ind. App. 58, was reversed upon this ground, and is to some extent in harmony with Chicago, etc., R. Co. v. Becker, supra, but was subsequently overruled. Indianapolis, etc., Traction Co. v. Henderson (1906), 39 Ind. App. 324. Such instructions are approved upon the ground that “it will not be presumed that a jury will find anything except from the evidence, or that they will even consider any matters not shown by the evidence.” Ohio, etc., R. Co. v. Stein (1894), 140 Ind. 61, 70, So that the jurors in the case at bar were told to do the exact thing which they otherwise would be presumed to do.

The complaint is required to contain “a statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended. ” §341 Burns 1901, §338 R. S. 1881. An instruction in plain and concise language, enabling a person of common understanding to know what is intended, meets the reason of the law. “Jurors are presumed to be men of conscience and intelligence, honestly striving to do impartial justice.” McDonel v. State (1883), 90 Ind. 320, 327. See, also, Kennedy v. State (1886), 107 Ind. 144, 150, 57 Am. Rep. 99; Boyle v. State (1886), 105 Ind. 469, 481, 55 Am. Rep. 218. The presumption is añ applicable one. To hold that in an instruction, the subject-matter of which is the measure of damages to be assessed, a direction to consider all the evidence requires the consideration of evidence not connected with such subject-matter, is to reverse the presumption.

In Louisville, etc., R. Co. v. Falvey (1886), 104 Ind. 409, 429, an instruction, after enumerating certain elements of damage, concluded as follows: “And the amount assessed should be such a sum as, in your judgment, will fully compensate her for the injuries, or any of them, thus sustained.” Of this the court said: ‘ ‘ One of the objections urged to this instruction is, that it does not require the jury to assess the damages from the evidence in the case. There is no force in this objection.- No juror of average intelligence could fail to understand that the court directed him to be guided by the evidence.” "What evidence? The evidence relevant to the subject of damages, of course. In the case of City of Indianapolis v. Scott (1880), 72 Ind. 196, 203, where the same objection was made to a similar instruction, the Supreme Court said: “But no jury of reasonable intelligence could have been misled by the charge into the supposition that such matters could be considered unless shown by the evidence. As to the latter part of the charge, the jury could not suppose they were authorized to find anything except from the evidence. If the nature and character of the plaintiff’s injuries were shown, the amount of her damages must have been determined by the judgment of the jury.” And see Pittsburgh, etc., R. Co. v. Carlson (1900), 24 Ind. App. 559; Citizens St. R. Co. v. Hoffbauer (1900), 23 Ind. App. 614. The greater includes the less, and the three cases last cited carry with them a holding that the jury were presumed to know enough to consider upon the subject of damages only that part of the evidence which had a bearing upon it. To say that the jury will find the proper amount of damages from the evidence relevant to the subject, without any direction to find from the evidence, and that, when the same enumeration of elements is made, accompanied with the statement that such facts must be found from a consideration of all the evidence in the case, it will base its finding upon that part of the evidence not relevant to the subject, involves a contradiction and creates unreasonable confusion. In the one case the presumption is indulged that the jurors will find the fact from a consideration of the evidence in the case, and the instruction is thereby justified, and an explicit direction, on the other hand, to do that which they are presumed to do is declared to be reversible error. No matter how the instruction is framed, the whole matter is left to the jurors. If they, possessing ordinary intelligence, are told to find from the consideration of all the evidence, they will understand the phrase as meaning all the evidence relevant to the subject-matter of the charge, while, if the instruction is to consider all the relevant evidence in the case, they must determine for themselves what is and what is not relevant, exactly as in the other instance. The phrase “all the circumstances of this ease, ’ ’ is immediately followed by an enumeration of the elements from which damages are to be assessed, and specific statements control general ones. City of Wabash v. Carver (1891), 129 Ind. 552, 13 L. R. A. 851; Louisville, etc., R. Co. v. Kemper (1897), 147 Ind. 561; Citizens St. R. Co. v. Sutton (1897), 148 Ind. 169. Instructions must be considered and construed as a whole. Whinery v. Brown (1905), 36 Ind. App. 276; Town of Sellersburg v. Ford (1906), 39 Ind. App. 94. Taken as a whole, it affirmatively appears that the intention of the court was that the various issues of fact involved in the case should be found from the evidence relevant to each of them, and there is no more reason in holding that, when the court told the jury to fix the amount of damages from a consideration of all the evidence, it meant or was understood as meaning that such damages should be determined from evidence properly admitted upon the question of whether defendant sold the drug in question, than there is in holding that a direction to find the fact as to such sale from all the evidence in the case required its determination from the evidence which related solely to the physical effect of such drug upon the plaintiff. Whát the judge meant by the charge is perfectly plain, and the presumption is that the jury were capable of and did understand him. 1 Blashfield, Instructions to Juries, §376; Union Mut. Life Ins. Co. v. Buchanan (1885), 100 Ind. 63, 69; Indianapolis St. R. Co. v. Robinson (1901), 157 Ind. 414; Browning v. Hight (1881), 78 Ind. 257. “Certain portions of the charge are separated from the context and objected to as conveying a wrong view of the character and measure of the evidence requisite to establish the fraud. The argument is that the instructions called for a degree of proof which was unreasonably rigid. No doubt this criticism would be warranted if the parts of the charge referred to were not qualified by other expressions. But they are so qualified, and the whole must be taken together, and the jury must be deemed to have had sufficient intelligence to understand the significance and application of the several propositions. * * * We must assume that all the instructions were respected by the jury, these as well as others, and if such were the case the defendants have no valid ground of complaint, and the judgment should be affirmed with costs.” Hart v. Newton (1882), 48 Mich. 401. And see Backus v. Gallentine (1881), 76 Ind. 367. The law presents different aspects according to the viewpoint of the observer and the manner of its application. It is a maze in which the unwary are entrapped through subtlety, quibble, and quip, and where the victim is overcome by sophistry and delusion, or it is a sane expression of truth and justice based upon the facts as they appear to the ordinary right-minded man. Monongahela River, etc., Coke Co. v. Hardsaw (1907), 169 Ind.—, and this ease can both be easily classified by those who care to do so. The judgment appealed from is right upon the evidence, and should be affirmed for that reason, irrespective of the propositions heretofore discussed.

I hereby dissent.