L.S. Ayres Company v. Hicks ( 1942 )

DISSENTING OPINION I am unable to agree with the majority opinion. Because of the far reaching results of the rules laid down in the majority opinion, I feel impelled to state my views on the subject.

It will be noted that in the original opinion, the court discussed the question raised by appellant's motion for judgment on the answers to the interrogatories. In discussing that question, the court set out the four separate acts of negligence charged in the complaint. It was there pointed out that no actionable negligence was proved as charged in the first and second charges, which charges had to do with the choice, construction, or manner of operating the escalator. The third charge of negligence had reference to the delay of appellant in stopping the escalator after it knew of appellee's position. The majority opinion pointed out that, "the facts found by the jury conclusively establish that the appellant was not negligent with respect to the choice, construction, or manner of operating the escalator."

It is clearly made to appear that by the interrogatories submitted by the court and answered by the jury, that the jury appreciated the fact that appellant was not guilty of any acts of negligence which caused appellee's initial injury, as charged in the first and second specifications of negligence; and on the other hand the jury was of the opinion that appellee suffered injuries which were the result of appellant's negligence in failing to use due diligence to stop the escalator, after it had knowledge of appellee's condition, as charged in the third specification of negligence. This is all very definitely pointed out in the first opinion in this case.

It will also be noted that appellee, in his complaint, very definitely separated the initial injury from the subsequent injuries by the four separate charges of negligence. The evidence introduced at the trial also emphasized this separation of injuries, and this evidence was effective as disclosed by the answers to the interrogatories. But this is not all. Again this distinction between the initial injuries and the injuries sustained as a result of appellant's negligence in failing to stop the escalator after appellee's position of peril was known to it, was very clearly presented to the jury by instructions Nos. 7 and 8, tendered by appellant.

This brings us to the consideration of instruction No. 6, as discussed by the majority opinion on rehearing. Before discussing the merit of instruction No. 6, it should be observed that appellant made one and only one objection to this instruction, namely: that said instruction, "improperly included humiliation as an element of damage."

The only points and authorities urged in appellant's original brief were directed to this single objection. The majority found that the instruction was not subject to the criticism made against it. Notwithstanding this fact, the majority of the court felt at liberty to reverse the judgment of the trial court upon grounds never urged either in its original brief or reply brief. The court cited only one authority for so doing, and that was the recent case of Keeshin Motor Express Co. v. Glassman (1942),219 Ind. 538, 38 N.E.2d 847, in which opinion I did not concur. Neither did the court in the last cited case find any case to support it. Attorneys in that case as in this case were unable to find authority to support the proposition, and I have made diligent search on my own initiative and have been unable to find such a case. I do not think this practice should be followed, because, if this court is going to examine every instruction objected to by appellant for errors other than those pointed out in appellant's brief, then appellee must necessarily be put to the task of suggesting in his answer brief every possible objection that could be urged to the instruction, and to meet such possible objection. Otherwise he runs the risk of the court's reversing the case on a point never urged by appellant to the trial court or this court, and to which objection appellee has never had an opportunity to answer.

The general rule, as I understand it, is that all objections not specifically pointed out by appellant in his brief under points and authorities or discussed in his argument, are considered waived, and that appellee in his answer brief has a right to assume that the court will so consider them. The only possible exception to this general rule is, that where there is a general assignment of error, and the error is so apparent and so palpably wrong, that there could be no serious disagreement about the matter, then, in my judgment, the court would be justified in taking notice of such error and reverse the case, even though appellant had not pointed out specifically the real error. For instance, if an instruction, unquestionably erroneous, is given and was objected to by appellant, and he properly saves the question in his motion for a new trial, but in his brief he relies upon some untenable objection, the court might very properly refuse to shut its eyes to the obviously erroneous instruction, and reverse the case. Appellee could not very well complain of such action by the court because he could not have sustained the instruction, had the proper error been pointed out by appellant in his brief. Consequently, he was not harmed by the action of the court. This court has even refused to go this far in some cases. In the case of P., C., C. St. L.R.W. Co. v. O'Brien (1895),142 Ind. 218, 219, 41 N.E. 528, the court said:

"The second paragraph of the complaint is fatally defective in its failure to state that the plaintiff was entitled to possession of the lots. The statute provides that: `The plaintiff in his complaint shall state that he is entitled to possession of the premises, particularly describing them, the interest he claims therein, and that the defendant unlawfully keeps him out of possession.' Burns R.S. 1894, section 1066; R.S. 1881, section 1054; Leary v. Langsdale, 35 Ind. 74; McCarnan v. Cochran, 57 Ind. 166; Vance v. Schroyer, 77 Ind. 501; Levi v. Engle, Admr., 91 Ind. 330; Mansur v. Streight, 103 Ind. 358; Simmons v. Lindley, 108 Ind. 297; Miller v. Shriner, 87 Ind. 141.

"Strong as these authorities are in support of the error assigned on the ruling, overruling the demurrer to the second paragraph of the complaint for want of sufficient facts, the appellant has waived it by the failure to discuss the same in its brief."

But quite a different situation arises, where the question involved is doubtful and questionable. Under such circumstances, I am not persuaded that this court should depart from the general rule and reverse the case on a point not raised by appellant in his brief, and on a point which appellee had no opportunity to be heard. But even had appellant properly questioned the sixth instruction in his brief, the question still remains, is the instruction erroneous, in the light of the facts presented in this case and as hereinbefore pointed out, and in the light of appellant's instructions Nos. 7 and 8.

The majority opinion says that instructions 7 and 8 relate to the subject of negligence rather than the measure of damages. I doubt if this assertion is accurate. Both the subject of negligence and damages are mentioned, but not the measure of damages. The measure of damages is set out in No. 6. It is obvious, however, that the court was attempting to get clearly in the minds of the jury that one of the acts of negligence alleged in the complaint was the failure to stop the escalator with reasonable promptness after the plaintiff's position of peril should have been known. The court then told the jury that if the plaintiff was injured when he fell, and that his injuries were not materially increased by delay in stopping the escalator, then it should not find a verdict for plaintiff on this charge of negligence.

By instruction No. 8, the court in effect told the jury that if it found that the defendant did delay in stopping the escalator after plaintiff fell, and that the delay increased plaintiff's injuries, then it should award plaintiff damages for the increase only. It is difficult for me to conceive how a jury could have been more clearly instructed as to just what injuries the plaintiff was entitled to recover. If the jury was not confused as to what injuries it was measuring in damages, then instruction No. 6 was not erroneous. It is admitted by the majority opinion that the correct measure of damages was stated in instruction No. 6 but concluded that instruction No. 6 confused the jury as to the injury for which it was assessing damages. As heretofore pointed out, the initial injury suffered by the fall, was not the result of any fault of appellant, and the jury so found by its answers to the interrogatories. Evidence as to the initial injury was introduced. Also evidence of the increased injury was offered. Plaintiff offered evidence as to how much of his fingers was cut off by the initial injury, and then showed how much additional injury resulted by not stopping the escalator.

When instruction No. 6 is taken in connection with appellant's own instructions Nos. 7 and 8, and as applied to the facts of this case as they appear from the record, in my judgment instruction No. 6 is not erroneous.

For the reasons above set out, I am unable to concur in the majority opinion.

NOTE. — Reported in 41 N.E.2d 356.