Birdsong v. ITT Continental Baking Company , 160 Ind. App. 411 ( 1974 )

Staton, J.

— Joel Birdsong’s automobile was stopped as he prepared to make a left turn from Sixteenth Street into an alley. His automobile was struck in the rear by an ITT Continental Baking Company truck. Birdsong suffered personal injuries and property damage to his automobile. His action for negligence against ITT Continental Baking Company was tried before a jury. The ITT Continental Baking Company contended that Birdsong was contributorily negligent in his failure to have his seatbelt buckled at the time of the rear end collision. Its seatbelt instruction 14 was given to the jury by the trial court. The jury returned a verdict for ITT Continental Baking Company. Birdsong brings this appeal which contends that the giving of Instruction 14 was error. We agree and reverse.

Instruction 14 reads as follows:

“There has been evidence that the automobile plaintiff was driving was equipped with seat belts, and the defendants have raised the issue that the plaintiff failed to use ordinary care to avoid injury to himself. The defendants do not contend that plaintiff’s failure to use seat belts caused the collision between the vehicles, but the defendants do contend that such conduct contributed to cause plaintiff’s injuries and damages.

“You will weigh all the evidence to determine whether or not a reasonable prudent person, under all the facts and circumstances as shown by the evidence, would have been using a seat belt and determine in accordance with all the Court’s instructions luhether or not plaintiff’s failure to %ise the seat belt was negligence. If you find that the plaintiff was guilty of contributory negligence in that respect, and that such conduct was a proximate cause of or contributed to cause his injuries and damages, you shall not award any amount for those injuries or damages which you find was caused by such negligence of the plaintiff, if any.” (Our emphasis)

Other instructions tendered to the jury by the trial court, Instructions 12 and 13, defined contributory negligence in Indiana and detailed its effect upon Birdsong’s claim, if proven. Both instructions were correct statements of the Indiana law. Nevertheless, we find several infirmities in the dictates of Instruction 14, both in its own mandate and in combination with the enumerated instructions concerning the effect of contributory negligence. The combination of these infirmities may not be labelled harmless error.

The dictates of Instruction 14 allow a reasonable juror to conclude that the law of Indiana sanctions a reduction in the damages claimed by Birdsong in proportion to the degree of negligence the jury assigns to Birdsong’s failure to have his seatbelt fastened at the time of the collision. Indiana law does not recognize degrees of negligence. Pawlisch v. Atkins (1932), 96 Ind. App. 132, 182 N.E. 636. The doctrine of comparative negligence has been specifically refuted by the appellate courts of this State. Hoesel v. Cain (1944), 222 Ind. 330, 53 N.E.2d 165; Pennsylvania Co. v. Roney (1883), 89 Ind. 453 and Lewis v. Mackley (1951), 122 Ind. App. 247, 99 N.E.2d 442.¹ The law of this State governing instructions requires that those tendered to the jury comply with the substantive law of Indiana. Summers v. Weyer (1967), 141 Ind. App. 176, 226 N.E.2d 904; New York Central Railroad Co. v. Knoll (1965), 140 Ind. App. 264, 204 N.E.2d 220. Where that rule has been violated, this Court must assume that the instruction given influenced the result in the trial court unless it appears from the evidence or the record that the verdict under proper instruction could not have been different. Summers v. Weyer and New York Central Railroad Co. v. Knoll, supra. Our careful examination of the evidence does not warrant such a conclusion in the present case; Instruction 14 clearly concerned the issue of ITT Continental Baking Company’s liability.

A non-mandatory instruction must be read with all of the other instructions given to the jury. Rondinelli v. Bowden (1973), 155 Ind. App. 582, 293 N.E.2d 812; Lamb v. York (1969), 252 Ind. 252, 247 N.E.2d 197. Where the combined effect of those instructions is to mislead the jury, we must reverse. Rondinelli v. Bowden, supra and Paxton v. Ferrell (1969), 144 Ind. App. 124, 244 N.E.2d 439. Here, in Instructions 12 and 13, the jury was informed of the definition and effect of contributory negligence in Indiana. Instruction 14 contradicted the noted effect of contributory negligence by allowing the jury to apportion the damages resulting from the collision rather than mandating denial of recovery as required by Indiana law. We presume that this confusion affected the jury’s conclusion. Summers v. Weyer and New York Central Railroad Co. v. Knoll, supra.

We must also note that the evidence presented in the case before us failed to support the giving of Instruction 14. ITT Continental Baking Company failed to present any evidence which connected Birdsong’s injuries to his failure to have his seatbelt fastened at the time of the collision. An instruction must be within the issues and supported by evidence. Moore v. Funk (1973), 155 Ind. App. 545, 293 N.E.2d 534; Lawson v. Webster (1962), 133 Ind. App. 296, 181 N.E.2d 870. It is reversible error to give an instruction that is not supported by the evidence. Baker v. Mason (1968), 253 Ind. 348, 242 N.E.2d 513.

Therefore, the judgment of the trial court should be and the same hereby is reversed with instructions to grant Joel Birdsong a new trial.

Lybrook, J., concurs with opinion; Hoffman, C.J., dissents with opinion.

1 . The common law doctrine of contributory negligence has been successfully attacked in a number of American jurisdictions. The doctrine of comparative negligence has most often been its replacement. See generally, Haugh, Comparative Negligence: A Reform Long Overdue, 49 ORE. L. REV. 38 (1969); Maloney, From Contributory to Comparative Negligence: A Needed Law Reform, 11 U. FLA. L. REV. 135 (1958); Prosser, Comparative Negligence, 51 MICH. L. REV. 464 (1953); PROSSER, TORTS §65, et seq. (1971); and 32 ALR 2d 463. Three variations of comparative negligence exist in the United States:

a. Pure Comparative Negligence: when damages are apportioned pursuant to degrees of fault regardless of which party is guilty of the greater fault. Only Mississippi, which passed comparative negligence by statute in 1910 and widened its scope to all personal injury cases in 1920, and the Canal Zone abide by this form. See MISS. STAT. ANN. § 1452.

b. :Modified Comparative Negligence: follows the same basic principle of apportioning damages, but denies recovery to any claimant whose negligence exceeds that of the defendant, i.e. greater than 50% of the total negligence. This form of comparative negligence has the widest acceptance and was first adopted in Wisconsin in 1931. Most recently, the States of Massachusetts, Minnesota, Hawaii, New Hampshire, Maine and Oregon have adopted statutes of this type with the States of Connecticut and Wyoming giving it consideration. Additionally, the doctrine has been adopted by judicial fiat in Florida, where legislative attempts failed. See Hoffman v. Jones (1973), Fla., 280 So.2d 431. In 1967, the Illinois Appellate Court attempted to accomplish a similar result in that jurisdiction, but was overruled by the Supreme Court of Illinois. Maki v. Frelk (1967), 85 Ill. App. 2d 439, 229 N.E.2d 284, rev’d. 40 Ill. 2d 193, 239 N.E.2d 445. See Comments on Maki v. Frelk, 21 VAND. L. REV. 897 (1968). It should be noted that both Florida and Illinois have since adopted a statutory form of no fault insurance. The modified form of comparative negligence adopted by Wisconsin was approved by the American Bar Association in 1969 after being recommended by the A.B.A. Special Committee on Automobile Reparations. See Report of the American Bar Assoc. Special Committee on Automobile Accident Reparations (1971).

c. Slight v. Gross Comparative Negligence: Nebraska in 1913 and South Dakota in 1941 enacted legislation embodying this form of comparative negligence. Here, a plaintiff is not denied a recovery for claimed damages if his negligence is found to be slight in comparison with the gross negligence of the defendant. South Dakota has since deleted the gross requirement for defendant’s negligence. See NEB. REV. STAT. § 25-1151 (1956) and S.D. CODE § 47.0301. No apportionment of damages is accomplished under this form of comparative negligence.

Other forms of comparative negligence exist by court adoption or expansion of limited statutes. The Georgia courts, through the years, have succeeded in expanding a statute originally meant to apply apportionment theory to cases against the railroad where the plaintiff was con-tributorily negligent to all cases involving personal injuries. The Tennessee courts have evolved a rule concerning the comparison of fault delineated as “remote contributory negligence.” Neither concept is a candidate for general adoption. See 32 ALR 2d 463.