DISSENTING OPINION I am unable to agree with the majority opinion in its conclusion that the giving of appellee's instruction No. 9 constituted reversible error.
It is well settled that instructions must be considered and construed as an entirety and with reference to each other and not separately or in dissected parts and, if the instructions as a whole fairly, fully, and correctly state the law applicable to the issues and the evidence, there is no reversible error, even though some one particular instruction standing alone, and apart *Page 286 from the other instructions, may be inaccurate, or erroneous, the cause will not be reversed because of error in the giving of such instruction. Eacock v. State (1907), 169 Ind. 488, 502, 82 N.E. 1039; Indianapolis Railways v. Williams (1944),115 Ind. App. 383, 405, 59 N.E.2d 586; Carter v. Aetna Life Ins. Co. (1940), 217 Ind. 282, 288, 27 N.E.2d 75.
Even though appellee's instruction No. 9 may be inaccurate, I am convinced that the error, if any, in said instruction was rendered harmless by instruction No. 10, given at appellants' request, and also by instruction No. 6, given by the court upon its own motion.
Appellants' instruction No. 10 reads as follows:
"If you find from all the evidence that the plaintiff was the owner of the automobile in which he was riding at the time of the collision described in his complaint; that he was riding on the front seat thereof; that the automobile was being driven at the time by James Sevedge; that James Sevedge was seventeen (17) years of age at the time; that he was the grandson of the plaintiff; that he was a visitor in the home of the plaintiff; that neither his father nor his mother was in the car; that neither his father nor his mother was a visitor in the home of the plaintiff; that James Sevedge was driving this automobile with the permission and consent of the plaintiff; that they were returning from a trip which they had made for the purpose of permitting the grandson and his friends to go swimming and to enable the plaintiff to visit friends; then the Court instructs you that the plaintiff is chargeable with the acts and conduct of James Sevedge in driving said automobile, unless you further find that other facts existed showing that plaintiff at the time of and immediately before the accident was completely divested of the right to control the operation of said automobile; and if you further find that James Sevedge was negligent in the operation of plaintiff's automobile at that time and place, and that such negligence either caused or proximately contributed to the accident *Page 287 of which the plaintiff complains, then unless you further find that the plaintiff at the time of and immediately before the accident was completely divested of the right to control the operation of said automobile, the plaintiff cannot recover in this action."
Instruction No. 6, given by the court upon its own motion, reads:
"You are instructed that the plaintiff, in his complaint, alleges that he was a passenger in the car when it crashed into the rear of defendants' truck and, on the witness stand, he said that he is the owner of the car and was the owner at the time of the accident. An owner cannot be a passenger in his own car, unless by some act or transaction he has transferred the right to use and control the car to some one else. The plaintiff's allegation in his complaint that he was riding as a passenger is a material allegation that requires proof. To make out plaintiff's case the burden of proof is on him to show by a fair preponderance of the evidence that he had transferred to his grandson, the driver of the car at the time of the accident, the absolute right to use and the absolute right to control, his car and that at the time of the accident he was riding in the car only with the consent and permission of his grandson; and, that at the time of the accident, he, the plaintiff, had no right to direct or control the driver or the operation of the car. It is of importance that you determine whether the plaintiff, at the time of the accident, was riding as the owner of the car, or as a passenger only. If he was riding as the owner then any negligence on the part of the driver, if any, would be imputed to the plaintiff and if such negligence on the part of the driver, if any, proximately contributed to the accident, the injuries and the damages resulting therefrom, if any, this would be considered as the negligence of the plaintiff and would prevent his recovery of damages in this case. On the other hand, if you should find from a fair preponderance of the evidence that the plaintiff was a passenger in the car at the time of the accident, with no right *Page 288 to control said car, as alleged in the complaint, then, if you should further find that the driver of the car was guilty of negligence which proximately contributed to the accident, injuries and the damages resulting therefrom, if any, such negligence on the part of the driver would not be imputed to the plaintiff, would not be chargeable against him and would not interfere with a recovery by the plaintiff in this case."
Appellants admit that both of the above instructions are correct and accurate statements of the law applicable to the issues in the cause and the subject matter covered in each instruction.
The jury is composed of men and women of ordinary and reasonable intelligence, capable of fully understanding the English language, and it must be presumed that they understand the law as stated to them in the entire charge of instructions and apply the same to the evidence before them.
Therefore, in view of the clear, explicit language used and the admittedly full and accurate statement of the law as contained in appellants' instruction No. 10 and the court's instruction No. 6,supra, concerning the same subject matter as mentioned in appellee's instruction No. 9, I am unable to conceive how the jury could have been misled or confused by appellee's instruction No. 9, when all of the instructions are considered and construed as a part of a single charge of instructions.
In conclusion, I wish to call attention to the fact that in the case of American Employers Insurance Co. v. Cornell, cited in the majority opinion, the Supreme Court held that the giving of an admittedly erroneous instruction did not constitute reversible error in that case notwithstanding the general rule to the effect that *Page 289 the giving of an erroneous instruction is presumed to be prejudicial and reversible error.
I think the same rule applied in the Cornell case, supra, applies in the instant case. See also: Allman v. Malsbury (1946), 224 Ind. 177, 65 N.E.2d 106, 113.
Therefore, I am of the opinion that the judgment should be affirmed.
NOTE. — Reported in 76 N.E.2d 687.