Chrysler Corporation v. Alumbaugh

348 N.E.2d 654 (1976)

CHRYSLER CORPORATION, Defendant-Appellant, v. Frederick L. ALUMBAUGH, Plaintiff-Appellee, and Edward E. York, Defendant-Appellee.

No. 3-1173A152.

Court of Appeals of Indiana, Third District.

June 10, 1976.

*655 Joel C. Levy, Steven R. Crist, Highland, Tinkham, Beckman, Kelly & Singleton, Hammond, for defendant-appellant.

Michael C. Harris, Robert A. Welsh, Harris & Welsh, Chesterton, for Frederick L. Alumbaugh.

William S. Spangler, Spangler, Jennings, Spangler & Dougherty, Gary, for Edward E. York.

ON PETITION FOR REHEARING

GARRARD, Judge.

Chrysler's petition for rehearing questions, inter alia, whether the proper standard of appellate review was applied in determining that error in giving a "missing witness" instruction was harmless.

In support of its argument, Chrysler quotes from American Employers Ins. Co. v. Cornell (1948), 225 Ind. 559, 569, 76 N.E.2d 562, 566:

"It is true that prejudice from an erroneous instruction is presumed unless the contrary affirmatively appears and in considering the effect of an erroneous instruction this court assumes that the error influenced the result unless it appears from the interrogatories, the evidence, or some other part of the record that the verdict under proper instructions could not have been different."

The quotation also appears in Probst, Receiver v. Spitznagle (1939), 215 Ind. 402, 19 N.E.2d 263; City of Decatur v. Eady (1917), 186 Ind. 205, 115 N.E. 577; N.Y.C.R.R. v. Knoll (1965), 140 Ind. App. 264, 204 N.E.2d 220; Perkins v. Sullivan (1957), 127 Ind. App. 426, 143 N.E.2d 105; and Public Svc. Co. v. DeArk (1950), 120 Ind. App. 353, 92 N.E.2d 723.[1]

Other cases have pointed out that the focus is upon whether the jury may have been misled. See, Christian v. Gates Rubber Co. (1969), 145 Ind. App. 229, 250 N.E.2d 486; Paxton v. Ferrell (1969), 144 Ind. App. 124, 244 N.E.2d 439; Summers v. Weyer (1967), 141 Ind. App. 176, 226 N.E.2d 904.

As we pointed out in our opinion, the damage to Chrysler, if any, occurred from the unrebutted testimony of York rather than from any inference to be drawn from the failure of Davis to appear as a witness. It does not appear that the verdict might have been different had the instruction not been given and we reiterate that the error was harmless.

Nevertheless, we recognize that our statement regarding "determining whether the error is likely to have influenced the verdict" supports a broader connotation. Accordingly, *656 we modify our opinion to conform to the views expressed herein, and deny appellant's petition for rehearing.

STATON, P.J., and HOFFMAN, J., concur.

NOTES

[1] All these cases found the error harmless except N.Y.C.R.R. v. Knoll, supra.