*1
held that evidence of
This court has
conduct,
past
criminal
for which defendant
Gladys
F.
BRINEGAR
Harold
discharged
has been
under Crim.R. while
Hodges, Appellants,
precluding
subsequent
prosecution,
does
v.
preclude
underlying
not
admission
ROBERTSON
proceedings
facts
in unrelated
to reflect
CORPORATION, Appellee.
criminal
Hickman
conduct.
State
(1989), Ind.App.,
fense has some collateral
for
defendant.
See Oliver
State
Ind.,
We are likewise convinced that charges misdemeanor dismissed support
could Justice's continued revoca Although
tion. the statute of limitations prosecution
would have barred on these
charges hearing place, when the 1989 took merely pros statute of limitations bars
ecution of a misdemeanor offense unless it years
is commenced within two the com
mission of the offense. As we held in
Culley, supra, violation of a condition of
probation does constitute offense purposes jeopardy.
for of double legal impediment using
There was no underlying
evidence of the conduct
charges support Justice's continued rev- presented
ocation based on the evidence hearing. Except
the 1985 revocation burglary charge, Justice does not chal-
lenge sufficiency support the evidence Accordingly,
the revocation. the decision
of the trial court is affirmed.
Affirmed.
RATLIFF, C.J., SHIELDS, P.J.,
concur. *2 McCrea, McCrea, F.
Edward McCrea & appellants. Bloomington, for Whitlatch, Bunder, Robertson, L. James Bloomington, appellee. Kelley Steger, for & MILLER, Judge. Plaintiffs-appellаnts Gladys Brinegar and Hodges appeal trial court's Harold defendant-appellee judgment favor (Robertson) in Corporation property for action based origi- a fire damages which occurred when property spread and nated on Robertson's property by Brinegar owned adjacent Hodges. Brinegar Hodges, and claim- and $45,652.66 $9,000.00 ing damages of and negli- for respectively, sued Robertson trial, rejected the court gence. At the Brinegar Hodges' theory ipsa and res proceeded the case on a theo- loquitur and against ry jury The found Hodges. Brinegar Hodg- and Brinegar and following appeal claiming the issues:: es in fail- 1. the trial court erred Whether give an instruction on the doe- ing to ipso loquitur trine res judgment on granting of a motion for on this issue where the evidence undetermined; of the fire was cause the trial 2. it was error Whether permit two witnesses to tes- court to conduct was tify that defendant's reasonable; that fires can start with fault; other lawsuits out and that no Robertson, imply- against were filed could not have been ing defendant negligent; error for the trial it was Whether givе further instruc- court to fail to upon receipt of a jury tions to jury after deliberations note from begun. had affirm. We
FACTS
in Bed-
August, 1986 a fire occurred
ford,
in a mill owned
originating
Indiana
The fire be-
operated by Robertson.
mill closed and
after the
gan a few hours
by Brinegar
owned
spread to real estate
Hodges.
building primarily
Brinegar
Hodges argue
that the trial
large
mill
a
by preventing
from
court erred
portion
wood that had a
constructed of
year
during
its structure built
considering
whether
the doctrine
apply
should
to this case.
processed
The mill
wheat
into
biscuit
*3
evidence,
plaintiffs'
At
the
of
conclusion
as an
flour-like substance
that was sold
judgment
Robertson made a motion for
on
extender,
purpose
similar in
adhesive
requesting
the evidence
that the doctrine
manufacturing
plywood
glue,
in the
of
used
jury.
withdrawn from the
After hear-
be
manufacturing process
and veneers. The
counsel,
ing argument
judge
the trial
rollers,
large
included the use of six
which
from the case
removed the doctrine
be-
in-
because of friction
needed lubrication
had not
ruled out. The
cause arson
been
volved,
grind the wheat. A dust control
it
not "fair to
judge reasoned that
was
explo-
system
prevent
installed to
dust
was
charge
duty
prevent
someone with a
sion.
arson."
regularly inspected by
building
The
was
Because the refusal
of the in
always passed in-
department
the fire
judgment on
evidence are
struction and
the
the fire
spection. There was no evidence
related,
togeth
will discuss these issues
we
by
explosion. Although
a
was caused
dust
ipsa loquitur
er. The doctrine of res
is a
did not have a central alarm
Robertson
whereby an inference of
rule of evidence
night
system, sprinkling system, or a
negligence
certain fac
can be drawn under
premises,
took
watchman on its
Robertson
Corp. v.
tual circumstances.
SCM
Letterer
required
suggested
precautions
all
of it or
(
686,
1983), Ind.App., 448 N.E.2d
by
department.
to it
the local fire
The
prerequisites
appli
There are three
building
regularly inspected and com-
was
cation of the doctrine. As stated in SCM
plied
sprin-
all relevant
codes. No
with
(1)
Corporation,
they are:
the event must
kling systems
required
alarms were
ordinarily
be of a kind which
does not occur
testimony indicating
they
there was
that
(2)
negligence;
in the absence of someone's
probably
prevented
not have
the
would
by
agency
it must be caused
an
or instru
fire.
mentality within the exclusive control of
defendant;
(8)
the
it
not due to
was
origin
not
deter-
of the fire could
be
any voluntary action or contribution on the
by any expert.
mined
in the
Machines used
Prosser,
part
plaintiff.
W.
See also
mill were checked after the machines were
39,
(4th
Torts,
1971);
page
Law
ed.
§
day.
turned off for the
The motors were
Friedman,
LL. Friemer and M.
Products
inspected after the fire and it was not
Liability
12.08.
§
they
аnything
determined that
had
to do
only
that
the
Robertson contends
with the cause of the fire. There was
prerequisite
met in the
case is that
testimony
experienced firefighting
from
of-
any voluntary
action
event was
due
indicating
ficials
that a fire can start with-
part
plaintiffs,
on the
or contribution
out fault. There was also
that
and,
prerequisites
the other
were not
since
starting
had admitted
the fire
individual
met,
granting
of the directed verdict
at
mill. Arson was not
plaintiff's
and the refusal of
final instruc
ruled out as a cause.
agree.
proper.
tion
one was
We
number
givеn
Additional facts will be
when nec-
A review of the Indiana cases which have
essary to the decision.
considered the res
that
there are no cases which ad
reveals
ISSUE ONE
whether
the doctrine can
dress
issue of
ipsa
Removal
the doctrine
lo- be considered
by
the cause
when
quitur
jury consideration.
of the fire has not been established.1 How
from
They rely
Brinegar
Hodges
support
cause
the fire was known.
on
cite cases in
instruction;
giving
Company
North America
however the cases cited
Smith v. Insurance
638,
(1980), Ind.App.,
damages
where a trash
all
involved actions
where the
unknown,
generally
The cause of a fire is
ever,
from other
review of the cases
arguments
commonly
where due care has
persuasive
reveal
fires
occur
jurisdictions
where due care
been exercisedas well as
apply under
should not
the doctrine
wanting.
originates
a fire
Where
these cireumstances.
premises,
that alone is not
a defendant's
instance,
Corpo
For
Menth v. Breeze
by
that it was started
the defen
evidence
73 A.2d
4 N.J.
ration
dant,
by any
nor that the fire was caused
dam
plaintiffs
suffered
A.L.R.2d
part.
Lynn
on its
Little
&
furnishings and
age
their household
when
Co.,
Marblehead Real Estate
301 Mass.
(located
apart
in their
personal effects
(Mass.Sup.Jud.Ct.
A.L.R. 292 application of also essential It is that those ipsa loquitur v. Atlantic & Tea doctrine Noonan Great the res Pacific 183, 9, Co., 136, A. 56 139 pre 104 N.J.L. seeking the benefit of its to obtain must show that all sumptive effect (E. A.1927) 22 Am.Jur. A.L.R. 590 & injury the direct cause probability 95, Explosives) p (Explosions and § surrounding cireum- so much of the perceive. The reasons are not difficult Supply Company McKinney v. by employ cites left unattended defendant's fire was Fla., 209, They (1957), property. cite where a fire also Shull 96 So.2d еe on defendant's Orovitz (1985), Ind.App., Company 477 liquified petroleum v. B.F. Goodrich spread the defendant's from an action for dam N.E.2d 924. - Shull involved adjoining property. plant The court held (a dock-plate ages injuries suffered when a rely the doc- plaintiffs not entitled to were malfunctioned, device) throwing mechanical thereof-the an essential element trine because They plaintiff trailer. also to the floor of his damage one which does was not cause of case, Levy-Zentner Co. v. cite a California negligence-had in the absence of not occur (1977), Transportation Co. 74 Cal. Southern Pac. proved. cites Tedrow v. Des He also been 762, 1, Cal.Rptr. App.3d where the fire was 142 766, (1958), Housing Corp. 249 Iowa 87 Moines by party. Because be caused a third found to found where the court 463, 467, N.W.2d previously, the court had occurred similar fires conjecture. The fire was mere cause of the held the defen forseeable, fire was held the conclusive, but need not be held evidence court responsible. In the warehouse owner dant speculation. above must rise had no reasоn to fore case, Robertson arson. see 816 involving Plaintiff cites several cases to its occurrence were stances essential fires where res was held to defendant,
in the exclusive control of the
applicable.
(Collgood,
be
Inc. v. Sands
agents or servants. Hamrah
or his
Ill.App.3d
910,
Drug
5
284
Co.
(1949);
Clements,
285,
3
The mere occurrence of a fire is not
cordingly
trial
correct
sufficient
to invoke the doctrine of
the
court was
res
holding
ipso
that the doctrine of res
lo-
ipsa loquitur.
applicable.
quitur was not
See Welch v.
(Edmonds
(1948),
Ill.App.
333
v. Heil
Ill.
Harper
New
Hotel
196
Co.
8630.)
only
It is
when the
App.
presented
94. Plaintiff
no evidence
plus
surrounding
fact
the fire
the
cir
say
from
could
that it is
which
give
cumstances
rise to an inference of
likely
negligence
than
that
more
was
negligence
ipso loquitur
ap
that res
the cause of the fire. When no such
plicable.
Ipsa Loquitur-Fires,"
"Res
8
probabilities
negli
in favor of
balance of
974, 984,
A. L.R.3d
doctrine
found,
reasonably
ipso
gence can
be
res
plaintiff
proving
does not relieve the
Prosser, Torts,
loquitur
apply.
does not
negligence
was the cause of the
Ed.1971).
added)
(4th
(Emphasis
218
(Mabee
Co.,
injury
and Case
Sutliff
jury. 1098; (1983), Ind. N.E.2d Gerrick v. State
App., 451 N.E.2d TWO ISSUE fire chief of Bedford and Tyree, as witness testimo- Improper admission of Depart the Bedford Fire associated with ny. (86) clearly thirty-six years, is ment for expert witness. He would qualified as Hodges alsо cite as error Brinegar and qualify expert as an witness based also testimony by several wit inclusion of knowledge of the personal his trial They complain first that the nesses. *6 degree If exhibits a property. a witness allowing to two witnesses court erred opinion is knowledge appear make it his to of Robert
testify to the reasonableness
value,
may testify as
care,
the witness
of some
They
ordinary
claim
conduct.
son's
Ind.App.,
expert.
Pollard
v. State
reasonableness,
an
are all
lack
They
A
decision
jury
that a
must determine.
N.E.2d 177.
court's
terms
4
granted
regarding
expert
is
Company v.
Indianapolis
R.
Seer
cite
St.
Ind.App.
only
72 N.E.
will
be reviewed
ley
discretion and
broad
of that discretion. Lawhorn
for an abuse
App.
72 N.E.
35 Ind.
rehearing
denied
(1983), Ind.,
A: sir. any fault in the absence fires start fact, was Q. very reasonable In he was acting unreasonably. anybody [Objection he not? overruled] A: Yes. opin- I if his Q. ... asked Court] [to fact, in that Q: do most fires start in the mainte- reasonable ion he was manner. your Honor property of the nance objection Your Same MR. MC CREA: being the Chief I think Court: [the Honor. years with 86 department fire of the objection is over- THE COURT: qualifica- has the experience he ruled. I will opinion so give an tions to Well, yes, Finally, Brinegar Hodges
A:
a lot of fires do start with
and
con
you
speed
fault
have the
that,
no
because
objection,
Robertson,
tend
over
Joe
instance,
jury
to tell the
you
was allowed
that Robertson
his feed belts for
have
any
belts,
had not been involved in
оther lawsuits
throughout
numerous
motors
They
as a result of the fire.
claim that
building....
allowing the introduction of this irrelevant
points out
also
Robertson
Robbins
prejudicial
plaintiff-
evidence was
qualifies
expert
under
as
Indiana law as
suggesting
implied
the evidence
Robbins had been with
Bedford Fire
negligent
could
been
because no
Department
twenty-six
for
and a half
implying
one
filed a
Brine-
else
lawsuit and
He
years.
had been Assistant Chief for
gar
Hodges
filed a meritless suit.
department
many years.
for
He had
trial, Brinegar
Hodges' only
At
ob
training
also
a
officer with the fire
been
jection
relevancy.
agree
We
with Rob
department and had
to numerous fire
been
only
ertson that since the
basis for the
training
inspect-
schools. Robbins had also
objection
relevancy, nothing
properly
is
is
ed the Robertson mill several
times.
preserved
appeal.
Dean
v. State
following ques-
Robbins was asked the
(1982), Ind.,
fires? admitting We find no error all of the foregoing testimony. Well, yes types all A. there can be situations that causes fires. THREE ISSUE
Q. There are a lot of causes. respond Failure You, situations, of- got you A. electrical begun. ter deliberation had know, got lightning, you got, you *7 (indiscerna- always course there is Finally Brinegar Hodges and con ble) well, goes, as far as that there that, jurors tеnd after the had retired for just instances. are numerous deliberations, they delivered a handwritten note to the trial court which stated: "The question to whether or not fires as tips scales are balanced if it the least anyone being negligent can start without Brinegar amount because of evidence?" clearly or at fault was within the witness's responded: states that the trial court "I fact, knowledge That un- and admissible. question. you can't answer the Do want case, der of this the circumstances where food?" unknown, the cause of the fire is was not jury's prerоgative an invasion of the to Brinegar Hodges jurors and assert the merely determine It was response should have been told in to this expert's recognition the same fact or message justice that if the scales are courts circumstances of which our favor, tipped party's in a party then that notice, is, regularly taken has met his burden. Robertson does not that "the cause unknown, generally fires com- a fire is dispute jury presented that the question its monly occur due care has been exer- where However, to the court.2 even if jury the questiоn Brinegar Hodges was as cised due care was want- as well as when presented, persuaded we are not that the Breeze, mg." supra. Menth v. court, jury presented plaintiffs Although parties agree did to the how the 2. the the found question, judge's out about this or what the is noth- court, this to the there question record, ing response question. pursuant Appellate was to such in the to Rule was indeed 7.2, to indicate that such a question
819 expert the and whether the ex- in not re skill of discretion abused its trial court helpful pert's opinion will be to the trier handwritten note. jury's sponding question than on the of the knowl- of fact jury's Failure to answer edge jury. Cleary, the EW. See is during deliberations regarding the law Evidence, (8d at 38 ed. McCormick on se, court must per and the trial not error 1984). determining in whether discretion exercise jury the should be questions of certain Fire and Marine Bituminous answered. away The modern trend is from strict Culligan Fyrpro Company v.
Insurance
excluding expert
application of the rule
1360, 1364;
(1982),
texion,
437 N.E.2d
Inc.
the common
testimony
subjects
within
579,
(1979), 270 Ind.
388
v. State
Smith
v. Hud
knowledge
jurors.
Carlson
(1982),
484;
State
N.E.2d
Crowdus
(1974),
576,
Ill.App.3d
312 N.E.2d
son
19
supreme court has
N.E.2d 796. Our
481
19;
Education
Stanley v. Board of
single instrue
giving
any
disapproved of
963,
(1973),
Ill.App.3d
293 N.E.2d
delibera
jury
has commenced
tion after
"Traditionally, expert
testimony has
except
circumstances.
Jen
tion
limited
permitted
subject
when its
mat-
not been
Ind.,
1002,
N.E.2d
kins v. State
knowledge
ex-
beyond
ter is
Here,
duty
no
the court was under
juror
perience
average
[citation
question nor under
jury's
answer the
omitted],
recently,
the trend is
but more
all of the instruc
any duty
again
read
permit
expert
special
it if the
has some
con
Brinegar
Hodges
do not
tions.
knowledge
testimony
and his
is of aid to
ambigu
original
instruction wаs
tend
though
average juror
even
Thus,
error.
ous.
we find no
knowledge of the
would also have some
subject matter.
omitted.]
[Citations
RATLIFF, C.J., concurring with
separate opinion.
Borders
Co.
Binge v. J.J.
Construction
788,
238,
App.3d
50 Ill.Dec.
95 Ill.
CONOVER, J., dissenting with
1240. The modern
opinion.
admissibility
expert
testi
standard for
RATLIFF,
concurring.
Judge,
Chief
aid
mony whether that
will
Judge Miller's
completely
I concur
with
understanding the facts.
jurors in
I
and Three.
opinion on the Issues One
Edison Co.
Johnson
Commonwealth
Ill.Dec.
Two for the
App.3d
133 Ill.
concur
result as to Issue
In order to be admit
hereinafter
stated.
to the old rule. Henson v. State inspector, of the fire local Jack Butterfield. (1989), Ind., the court 535 N.E.2d during He testified cross-examination: However, in reiterated the traditional rule. Q. regard possible With to other (1989), Ind., N.E.2d v. State Wissman causes, you ruled out arson[?] 1209, 1218, supreme stated: our court A. I never rule out arson. "Expert inappropriate is Q. regard Were there several fires with may mat be excluded when it concerns couple year to businesses in a knowledge and ters within the common period in the mid-1980's. [sic] experience ordinary persons and which A. We've had оur share. jury may the determine as well as the fact, Q. person In did one claim that he (1983), Ind., expert. Grimes State torched the Robertson Mill. However, N.E.2d if 512. even evidence beyond knowledge exper is not Yes, A. he did. average juror, expert may tise of the (R. 220) Indiana, necessary it is not testify concerning spe his nevertheless before the doctrine is invoked that knowledge subject. cial Summers plaintiff possible exclude all other causes. (1986), Ind.App., v. State supreme clearly Our court has said: 799." appellant's position . It that since Therefore, my I remain steadfast in belief the evidence tended to establish that that the rule in announced Summers is the accident could have resulted from more proper admissibility expert test for the ie., cause, appel- than one testimony. My opinion is buttressed fur- lant and/or a defective tire manufac- by recognition holding ther Firestone, by tured and sold the doctrine opinion in Justice Summers Givan's apply. of res does not Wissman. appellant's With contention we cannot The standards embodied in the modern agree. ipso To assert the doctrine of res espoused rule as in Summers were met loquitur necessary prove it is not Further, I quite agree quali here. that a the only cause of the accident was defen- expert may give opinion fied an witness as contrary dant's To the it is
to an ultimate fact issue. Breese said: (1983), Ind.App., 449 N.E.2d State physical injury '... cause of the and the attendant circumstances indi- CONOVER, Judge, dissenting. cate such unusual occurrence that light ordinary experience in the if respectfully I judge dissent. The trial probably happened would not have by removing erred ipso the doctrine of res if management those who had the loquitur from the case. control the causative instrument majority While the makes a distinction proper [Supreme had exercised care' involving between fire cases and those oth- emphasis] Court's ... types injury, er I see no reason for such Negligence, p. LLE. § Further, if distinction. such distinction is necessary It is therefore for a proper, sufficient evidence under plaintiff every possibili- to exclude other presented by Indiana rule was Plaintiffs *9 ty than the other defendant's ipsa below to invoke the doctrine of res principle as a cause. This has been rec- loquitur. ognized in Indiana. Initially, judge the trial concluded at the A '... number of different causes or close of the ipsa Plaintiffs' case chief res may inferences be thus left to the final loquitur apply did not because "Arson has determination of the triers of facts' ruled I been out. don't think it would be charge duty fair to someone with a
prevent (R. 381) only arson." mention Merriman 253 Ind. Kraft during arson came the cross-examination N.E.2d 487. ev- substantial presented Plaintiffs below CULLEN, D.O., the result fire could have been Stephen
idence thе L. Glenn O. Ross, M.D., County inspector Daviess Fire of Robertson's factory Defendants-Appellants, Hospital, Robertson's testified Butterfield old, highly flammable wood build- was with dust were volatile ing whose contents WILDMAN, Phyllis A. explosive. that could have been Plaintiff-Appellee. Further, evidence (R. 197) there was some No. 14A01-8909-CV-386. have inferred could from which Indiana, bearings and Appeals Court of fire was the result of First District. mill of the in the basement motors situated there becoming overheated because March started in the basement. testimony the fire mo- inspected two testified he Butterfield were the motors in the basement but
tors deter- severely it could not be so
burned the cause. the motors were
mined whether experi- could further testified motors
He bearings be- problems if the
ence electrical evidence, From this
came overheated. reasonably infer Robertson's
jury could caused the result-
negligence proximately there was some evidence
ing fire albeit building. person "torched" the
third met the it clear Plaintiffs below
I believe Corp. v. Let
requirements listed SCM (1983), App., 448 N.E.2d Ind.
terer (1) the event was not of a
Without in the ordinarily does not occur
kind which (2) negligence; Rob of someone's
absence premises were within building and
ertson's control; possession and
its exelusive voluntary
(8) any the fire was not due to by plaintiffs.
action or contribution per a third was some evidence
That there premises" merely con
son "torched weighed along to be with
flicting evidence negli- presumption of ipsa loquitur's at the conclusion by the fact finder
genee
Merriman,
For those I vote to reverse.
court erred. Hatfield, Born, Fred Fine & Timothy
D. Foreman, White, & Bamberger, Oswald S. *10 Evansville, defendants-appe- Hahn, lants.