Manning v. Allgood

taken injustice has cure whatever dy to relief whatever other give and should

place Consol, Jefferson equitable.” just III), supra. (Worthington-Jefferson

etc. supported is fully order reinstatement award findings IEERB. An rests a factual interest pre-judgment only con- this Court

determination most favorable

sider the evidence Tp. Corp. Clow v. Ross School

appellee. An 384 N.E.2d 1077. (1979),Ind.App.,

Corp. payment in the delay

unreasonable justify will such an amount

ascertainable was computed Here the amount

award. salary own sched- appellant’s

reference to was, therefore, easily ascertaina-

ules and right abridged, the The nature of the

ble. knowledge obtaining relief and the

delay in liability are all Baugo as its maximum have could

factual matters which considered the trial court. has been illustrated.

abuse discretion reasons, judgment of the

For these

trial court affirmed.

Affirmed. J.,

GARRARD, J., STATON, con- P.

cur. B. and Peter Eckrich

Willie MANNING Sons, Inc., Appellants

&

(Defendants Below) ALLGOOD,

Betty Representative Personal Roy Eugene Allgood;

of the Estate of

Morris, Morris, Appellees Jr. Mavis

(Plaintiffs Below). 3-1078A250.

No. Indiana, Appeals

Court of District.

Third

Nov. 1980. Wilks, Bonahoom, Chapman

John R. & McNellis, Wayne, appellants. Fort for Montross, Townsend, W. Scott Hovde & Townsend, Indianapolis, appellee Betty Allgood.

HOFFMAN, Judge. 5, 1972, multiple

On December vehicu- High- lar accident occurred on Interstate pute. Young Harris v. Women’s resulting in the death of Christian way Eugene (1968), by jury, 250 Ind. Allgood. Following a Assn. of Terre Haute 242; plaintiff, Betty Equitable All- Life court ordered that 237 N.E.2d Assur. Soci estate good, personal representative ety Ind.App., U. S. Crowe case, from the de- Eugene Allgood, recover the motions for N.E.2d 772. In this fendants, Manning Willie B. and Peter Eck- partial summary judgment were denied and Sons, $300,000. The therefore, rich Inc. the sum of may reasonably & parties the as Eckrieh, defendants, Manning ap- now dispute. in sume that all issues remained decision, ten raising that for review peal position prejudice rights This does not the assignments of error. li- of the defendants. For the motion in mine and the motion for on the allege The defendants first the trial court evidence, findings necessary. no are procedure ruling in its in on certain erred preserved by no error has for review to, trial during motions and after the this Court and no defect is found in the Specifically, of this cause. issue is taken trial court. procedures employed by the hearing any the of a regarding lack of fact on four de- findings motions: the assignment The second of error partial summary fendants’ first motion for charges pre occurred in the irregularity judgment, partial the motion for second by plaintiff por the of selected sentation summary judgment, judg- the motion for Rules depositions jury. tions of Ind. evidence, ment on the and the motion in Procedure, 32(A)(4) Rule states: Trial the by limine. No cases have been cited part deposition is offered in only “If of a argument in of this as party Procedure, party, an adverse required Appel- Ind. Rules of require him to all of it Prejudice created introduce allegedly late Rule 8.3. introduced, part in the of the trial court relevant to the that failure party may any other inform the defendants of the reasons introduce the precluded parts.” the denials of their motions filing

defendants from additional motions presentation of her During plaintiff’s the and pleadings. case-in-chief, depositions portions of two counsel into evidence. Defense were read Initially, it is noted that the two proceeding and objected to this method of partial summary judgment motions for required to plaintiff requested that legal arguments. in virtually identical The court depositions in full. cause shows that a read the The docket sheet objection permitted but overruled the hearing was held on the first motion and depositions defendants to read the entire argument of counsel was heard. case. during presentation of the One hearing necessary was second motion their length depositions pages no new issues to the court was 131 presented since it of the remaining pages. for review. As to the two mo and the other was tions, requested never that contend that Defendants They will not now be hearings oral be held. way “in was made such presentation opportunity this lost complain heard to nearly fabricated.” testimony when no was ever request responded “counsel took two Plaintiff addition, Ind. Rules of Pro trial court. voluminous, disjointed deposi- unwieldy and cedure, 73(A) the court permits Trial Rule fairly, honorably carefully, tions hearings in an dispense with oral effort clear, deponents made the expedite its business. A re- close concise and understandable.” record, depo- including the full findings, the lack of view of the

Regarding sitions, findings presentation general special rule is that are discloses for the summary judg fair. necessary when a the evidence was Counsel deponents’ attempted place court on granted plaintiff ment is so that the order so chronological which issues remain in dis- can understand statements jury could better understand sequence purpose mentioned for the sole rebutting of events. strong Defense counsel’s accusa- allegation the defendants’ that the deceased against tions plaintiff’s presentation are plaintiff Allgood contributorily negli- unwarranted. It should be noted that gent. Upon objection, TR. the defendants’ requires only portions that relevant inquired as to the the depositions be introduced. It argument, decided it was within issues document, require the entire case, the defend- objection. and overruled ants contend. The Westinghouse case of No error has been demonstrated Corp. Equipment Electric v. Wray Corp. defendants. (1st 1961) Cir. 286 F.2d at 494 states: appellants object next provides “The rule averting, method for procedure giving used in the selection and possible, so far as any misimpressions of final instructions to the Prior to deposition from selective use of testimo- evidence, lengthy the close of the a ny. opposing party The is entitled under detailed conference was held to discuss the the rule to any have the context of state- time, At that jury. instructions to the both ment, or any qualifications made as a parties given opportunity the part deponent’s of the testimony put also instructions, object tender to instructions into evidence. We spirit believe that the argue parties fully the issues. Both rule dictates that the opposing the participated in For this conference. the party should be able require the intro- expedite convenience of the court and to duction of the relevant parts depo- of the case, previously- the of the actual dictation sition at least at conclusion lodged objections place did not take until reading of the deposition.” [Em- jury after the had commenced deliberations. phasis added] Procedure, 51(C) Ind. Rules of Rule Trial The proceedings present in the case are states: entirely Westinghouse consistent with the “. . party may . No claim as error the guidelines. misimpression was created giving object of an instruction unless he fact, by plaintiff’s presentation. jury thereto before the retires to consider more orderly logical statement of the verdict, its stating distinctly the matter plaintiff’s resulted from the or- objects to which grounds he and the Furthermore, ganization. the defendants objection....” his present in the requested case the admission Defendants now submit that reversible er- deposition, just the entire not rele- objections ror occurred because were not portions vant thereof. trial The court cor- prior made on the record to the retirement rectly concluded that this would be unneces- jury. The situation same occurred sarily disruptive case. No Washington the case of Piwowar v. Lumber

error occurred. (1980), Ind.App., & Coal Co. 405 N.E.2d 576 assignment third of error that, although in which this Court ruled charges plaintiff’s attorney made a employed preferred method was not prejudicial argument. Again, the ap procedure, it did not create reversible error. pellants have any authority failed to cite purpose of TR. guarantee 51 is to coun- support of their contention. objec- sel the opportunity timely to make disputed portion substance of the tions and to advise both the trial court and the argument refers to certain facts from party objec- the adverse of the basis for the which one could infer negligence by opportunity tion so as to afford the cor- Manning defendant in the first collision any rect error at the court Mur- level. which disabled his vehicle. The phy, issue of Admx. v. Ind. Harbour Belt Railroad negligence 103, as related to that incident had Ind.App. at 289 N.E.2d been withdrawn from jury’s considera- long at 177. this So tion aby prior ruling. fulfilled, court Plaintiff’s formally the technical failure to attorney responds that these facts were objections prior record to the retire- those Therefore, possible concerning create error of error ment of the not magnitude require preliminary a reversal. instructions has been waived. hand, rights In the at no of the defend- case alleged Error next in the final instruc- compromised by pro- this ants were lost jury. tions to The defendants tendered defendants in the acquiesced cedure. The instructions, by all were refused of which request procedure use of this did action challenging the court. In this on in- reporter during court conference court, brief, the defendants in their recite structions, objec- they nor did offer their and then 26 tendered instructions make all charge to open tions in court argument which reads: a one-sentence have failed each of them are “Those Instructions and reversible error.1 demonstrate true and correct statement law must now turn to the This discussion it it is contended herein allegation of error which defendants’ fifth permit for the Court not to these error fail states trial court in its that the erred Instructions.” ten preliminary ure to instructions give opinion, in this previously As discussed this After defendants-appellants. dered appellate procedure is insuffi- method of in preliminary of the tendered relating all review preserve error for cient to structions and all of instructions Thus, any is waived concern- issue Court. present gave, ing defendants’ tendered instructions. argu barely page more than a of actual fourteen The defendants also attack any ment devoid of citations to which is given by the instructions which presentation This is insufficient authority. general argument A contends court. brief preserve to error for review this Court. in favor of the instructions were slanted Supreme As in Abrams stated Court emphasized negligence plaintiff, Ind., 345, (1980), v. 403 at 347: State N.E.2d deprived and the defendants of defendants argu “... We have often held that impartial a fair trial. No right their to and in briefs discern appellate ments must be attempt is made ex- ible demonstrate cogent must exist. plain problems how or where these alleged how error defendant. harmed individually Only three ad- instructions are State, Ind., (1978) N.E.2d Guardiola v. 375 only will be discussed dressed and those 1105; State, (1973) Williams v. 260 Ind. here. 543, arguments 297 N.E.2d 805. These is, allegedly, 21 am Instruction No. supported by appropriate must also error or due typographical due to a biguous legal appellate authority according to our law. That instruc to a misstatement rules, noncompliance with rules verbatim, is, as follows: tion can in the of errors result waiver wrongful is act of Ind.R.App.P. 8.3(A)(7); original “Where there review. Guardio State, act of a State, intervening third supra; la Hendrix v. defendant and v. 309, determining in (1974) party, 701. fundamental test 262 Ind. 315 N.E.2d wrongful act for his argument legal liability is no or au defendant’s Since there issue, foreseeability.” in the issue is test of thority support this properly presented is not to us and “intervening act” and “forseea- The terms therefore not before us for decision.” by the and defined bility” were discussed Although the A that a instruc in other instructions. requested mere statement court articles, an, the, a, could be adjective tion states the law and that cer correctly make it read are to this instruction tain other instructions insufficient added does not create easily, v. the lack thereof preserve error. Gilmore more adequately have failed 359, 677. (1951), ambiguity. 229 Ind. 98 N.E.2d an State contrary, v. it is 1. To that the Downham erroneous. the extent case of Wagner (1980), Ind.App., N.E.2d holds argue legal allege employment defect which She also testified as to his they his- tory is contained in this instruction. spending and his habits. Sufficient evidence was The defendants also contest these matters. In a jury’s consideration of 37A, Court’s Instruction No. which states: order, excluded pretrial properly the court “There has been introduced in evidence as criminal con- evidence about an unrelated agreement exhibit an entitled ‘Cove- Therefore, jury viction of the deceased. plaintiff, nant signed by Not to Sue’ Bet- correctly instructed on factors to ty Allgood, as Administratrix of the Es- determining damages. consider in Eugene Allgood. may tate You con- agreement determining sider assignment next of error paid by whether the sums the terms of raised in this declares that the trial agreement were in full or incorrectly denied defendants’ mo Betty Allgood settlement of the claims of granted tion in limine and be taken into consideration in motion limine. The defendants’ motion award, making if be made.” your sought concerning to exclude all Manning’s first accident which disabled his The case of Lows Warfield accident was the initial vehicle. This first Ind.App. 274 N.E.2d 553 is cited for the incident a chain of events which culmi proposition that “it is the law of the State Eugene Allgood. nated in the death of of Indiana that it is a question for the denied, granting it motion was determine whether or not the considera- tion would have excluded relevant evidence. given under a Covenant Not to Sue compensation full alleged injuries for the It is incorrect to contend that the evi- sustained.” The clearly court’s instruction leading up dence to the crash could not be and, contains the concept the Lows case material relevant raised in to the issues therefore, grounds objection no for this ex- the case. A multitude of facts relevant ist. The jury specifically instructed gleaned the issues were from it must determine whether or not the which related to matters to the Man- covenant not to sue was a full or ning coming vehicle to rest. The condition plaintiff. settlement of the claims of the highway, of the as to whether it was wet or obviously The instruction fulfills the Lows dry, upon issue which counsel was an was requirements. The defendants do not ex- Manning question entitled to Mr. since it pand explain argument their on the inad- The pertained icy to the entire occurrence. equacy of the instruction. No error exists. bridge ability conditions of the and the of

The final instruction Manning stay contested the truck to under control the damages speed defendants concerned which were case. The relevant issues this properly wrongful could be awarded for the Manning of the truck as it entered the death Eugene Allgood. bridge pertained directly ability of The was of permitted negotiate to consider the love particular loss of his that vehicle to the and affection disposition bridge and the and habits in its condition fifteen minutes be- sober, of the deceased as to whether he was fore the The arrival of other vehicles. fact frugal. Manning arguably industrious and The defendants al that the vehicle was lege that speculation the instruction allows down a result of contact with 180 slowed guardrail ability consideration of matters which the feet of relevant court had excluded from the trial. An ex to control themselves on of other vehicles amination of the record refutes asser that upon arriving bridge. these surface at the tions. An expert Manning’s credibility economic witness testified The issue of Mr. at length projected earning about the ca raised as to the route that took and the he pacity of stops the deceased. The wife of the he The of the that made. nature deceased, plaintiff Betty Allgood, crash, impact, described the force of the and the the Manning habits and home life of her husband and were effect it had on Willie all relationship discussed his with his two of sons. relevant to the critical issues this case. crash, the cab after reconsider of to The condition the court cause would inside warning possibly devices accessibility of the limine the motion ruling on crash, existence and evi- after the excluded the cab previously admit decide as a re- safety devices offer of various of an locations requirement dence. these impact-all of of the the force The defend- necessary. sult of trial is during The relevant. which were matters of the admission request failure ants’ these facts to have entitled jury was the course during evidence excluded it, various only as to the issue. this waives it could have also so involved but issues of error dis eighth assignment The awareness of chronological admissibility rulings on the putes numerous morning. The trial court occurrences parts Various of the of evidence. denying exercised its discretion objectionable of ten witnesses were found in limine. motion defendant-appellants’ brief, ar defendants. their the court’s alleged in Error is also major pages, gument consumes over in limine. motion granting objection ity of which is a recitation have they should urge that The defendants presen During this entire testimony. able evidence show to introduce permitted tation, single not cite a the defendants do of the de felony conviction ing authority their case or other plaintiff remarriage of ceased and the compliance with lack of positions. This The de death. following her husband’s procedure creates a required appellate fail. contention must fendants’ any arguments waiver exclusion of object to this right The evidentiary rulings. pertaining to these because the de waived has been on the next contest the denials any error preserve failed to fendants partial summary Supreme Court of their two motions As the Indiana record. Ind., judgment. plaintiff responds in Crosson State stated appellate not entitled re- at 1140: defendants are N.E.2d view be- of a denial of “However, must be recommended it cause a trial on the has occurred. merits in limine to of a motion it is not the office Com- Study Civil Code Commission the ultimate ruling upon a final obtain Procedure, Trial Rule Rather, ments Ind.Rules evidence. admissibility of Harvey, 56(E), found at 3 W. protect is to motion (1970)state: mat- Indiana Practice at 550 prejudicial potentially proponent making jury, it to the displaying ter from denial “Generally speaking jury, it to statements about judgment cannot be considered or re- in manner jury it to the presenting judgment viewed on from a ren- upon its has ruled until the trial court merits of the case.” dered on a trial of the of the trial context admissibility in the Nevertheless, specific language of TR. itself.” 56(E) clearly reads: offer this evidence failed to The defendants and, trial itself context of the within the may be summary judgment “Denial of opportu- thus, given no the trial court was errors challenged by a motion to correct ruling on its admissibil- nity to make a final is en- a or order after final in limine is a motion ity. The of tered.” remarks from prevent prejudical merely to appears the trial rule to language The of of being presence made follow review in this situation appellate Ind.App. (1973), 155 Silhavy Burrus v. de- Study apparently while the Commission ap- error for preserve 293 N.E.2d 794. To improper. be termined review would on the evi- court must rule peal, the trial Indiana cases have been found in which the Many events could during the trial. dence trial occurred and the denial of the had trial which during the course occur mo- judgment was raised in the of causation. order break the chain in- Nonetheless, arguments tion to correct errors. both of these are disputes which volve factual substantial Therefore, meaning of the the clear summary judg- the realm of a within precedence super rule take and trial must ment Study sede the decision. comments of the Commis sion. The summary judgment denial of a judg- guidelines for Excellent appealed this Court Judge ment motions set forth a following trial on the merits and the Bridges of Young in the recent case a entry judgment. of Co., (1980), Ind.App., Inc. Kentucky Stone at 576: N.E.2d The substance motion for “Questions negligence proximate of and summary judgment asserted that the first ordinarily questions of fact cause are collision, which disabled defendants’ ve Questions a to decide. which are hicle and left obstructing roadway, it composed qualities of such proximate was not the cause of the accident men arrive at differ- cause reasonable fatally which injured Eugene Allgood. De ent results should never be determined fendants contend first accident quality of of law. The debatable matters merely created a condition and a subse negligence proximate issues such as quent intervening injury. act caused the cause, men the fact fair-minded contention, support of this the case of Slin conclusions, empha- might reach different Babb, kard v. 125 Ind.App. Wilson necessity of appropriateness size 76, 112 N.E.2d is cited. fact-finding questions leaving such “ ‘If the negligence nothing more body.” than furnish a condition which factual issues this case necessitat- injury possible, made that condi- jury’s ed determination. tion causes injury subsequent mo- court properly denied the defendants’ independent person, act of a third summary judgment. tions for concurrent, two are not existence of the condition is not the numer- cause of the appeal presents final issue injury. challenge ... An basically essential element of arguments ous proximate has requirement As sufficiency cause is the of the evidence. cases, this the result a multitude of might must be such as reason- decided or de- reweigh the evidence ably have been Court will not anticipated in the ordi- ” Liabil- credibility witnesses. nary experience termine the men.’ based on Manning was ity of the defendant 112 N.E.2d at 880. on-coming vehicles warn his failure to clearly at trial showed that blocking one which was his truck disabled Manning did merely more than create second lane part of the completely lane condition; he to warn on-coming failed ve- Liability bridge. on a two-lane northbound hicles of the dangerous existence of a situa- Sons, Eckrich and Peter defendant tion when he knew that a entering vehicle employ- as the position its Inc. was based on bridge, speed, even at a reduced would acting within who was Manning, er have no chance stop on the ice and would the time of scope employment his at become in an accident. involved This fail- in this presented The evidence incident. by ure Manning proximate was a of cause 3,000 more is than page record plaintiff’s injuries. Eyewitness accounts the verdict. The defendants make reference to a sub- accident at the Manning’s actions described sequent, act, intervening yet they fail to for of concern apparent scene his lack specify exactly what this act is. They may of con- safety of others. The defense referring the actions driver of a deceased negligence by the tributory third vehicle or the actions of Manning fol- This by simply accepted not lowing the They first crash. do not state. juror as the thirteenth will not sit Court noted, however, It is intervening credi- is most which evidence and determine performed act must be third by person a conflicting evidence vast amount ble. A subject appeal specifi- is the of this is presented and the verdict cally 56(C), covered TR. 56(E). not TR. properly supported. rendered was Any rationale which suggest would that the have failed to demon- The defendants partial denial of summary judgment could and, therefore, error strate reversible be reviewed on appeal after the trial court court is affirmed. judgment of the trial had heard of all the witnesses Affirmed. weighed all the evidence on specious. merits is only It creates er- J., GARRARD, concurs. P. rors for review which already have opin- with J., in result STATON, concurs decided on the merits and must be tested ion. entirely different standards of review. Therefore, I concur in only upon result in result. concurring STATON, Judge, Majority’s treatment of summary agree result, I can not since I concur judgment. As to the remainder of the Ma- Majori- employed by rationale with the jority Opinion, I concur. Ma- 56(E). The TR. regarding ty Opinion con- when it incorrect Opinion jority summary judg- of a denial

cludes: “The appealed may be

ment merits and trial on following a

Court The ration- judgment.” final of a entry there is a is that Opinion Majority

ale of Study Com- Code The Civil between conflict ANDERSON, Jr., Gilbert Appellant, meaning clear and the mission Comments meaning clear “(t)herefore, 56(E): TR. precedence must take trial rule REVIEW BOARD OF the INDIANA EM- Study Com- comments supersede PLOYMENT DIVISION, SECURITY of a denial contrary, the theOn mission.” Skinner, William H. Adams, David L. when on is moot summary judgment Hutson, and Paul M. as Members of and the merits on tried have been the issues as constituting the Review Board of the rendered has been judgment final a Employment Indiana Security Division, TR. from quoted language trial court. Chrysler Corporation, Appellees. summary “Denial Majority: 56(E) by the No. 2-680A189. by a motion challenged bemay judgment Court of judgment Appeals Indiana, final a after errors correct portion Third District. refers entered.” order is court the trial 56(C) permits TR. Nov. 1980. all less than “as to judgment enter 22, 1981. words, Rehearing Denied Jan. other issues, parties.” claims or interlocutory appeal. to'an it refers of TR. portion in that judgment”

“final mean Majority does by the

56(E) quoted the merits a trial after judgment

final by the judgment entry of

but summary for moves party where

court summary judgment

judgment and where party or non-moving

granted judgment and move parties all grants

the trial judgment as denies some and judgment entry of

to others. Fur- merits. on the any trial before made

thermore,

Case Details

Case Name: Manning v. Allgood

Court Name: Indiana Court of Appeals

Date Published: Nov 24, 1980

Citation: 412 N.E.2d 811

Docket Number: 3-1078A250

Court Abbreviation: Ind. Ct. App.