Ryser v. Gatchel, 1270A261

• Citation: 278 N.E.2d 320,151 Ind.App. 62
• Decision Date: 08 February 1972
• Docket Number: No. 1270A261,1270A261
• Court: Court of Appeals of Indiana
• Parties: Nellie RYSER, Appellant, v. James GATCHEL, Appellee.

Page 320

278 N.E.2d 320

151 Ind.App. 62

Nellie RYSER, Appellant, v. James GATCHEL, Appellee.

No. 1270A261.

Court of Appeals of Indiana, Third District.

Feb. 8, 1972.

Lewellyn H. Pratt, Bloomington, for appellant.

Byron C. Kennedy, Herbert H. Bent, Warsaw, for appellee.

HOFFMAN, Chief Judge.

The primary issue presented by this appeal is whether the summary judgment entered by the trial court in favor of defendant-James Gatchel was proper.

The facts as disclosed by the record before us are as follows:

On December 21, 1967, appellant-Ryser was involved in an automobile accident with appellee-Gatchel. Ryser alleges that at the scene of the accident Gatchel gave her the name of 'Charles Leeka' which she understood at the time to be his (Gatchel's) name. She further alleges that 'Charles Leeka' was actually Gatchel's insurance agent.

On December 15, 1968, Ryser filed her complaint alleging that the defendant was negligent in striking her auto. The defendant named was Charles Leeka.

It must be noted that personal injury actions must be commenced within two years after the cause of action has accrued. See: IC 1971, 34--1--2--2, Ind.Ann.Stat. § 2--602 (Burns' 1967). Therefore, the statutory time for the commencement of the action would have expired on December 22, 1969, unless tolled.

On December 23, 1969, Leeka entered an appearance by counsel, and on January 19, 1970, filed his verified answer denying the allegations of the complaint.

On January 24, 1970, Ryser filed her amended complaint omitting the name 'Charles Leeka' and substituting the name 'James Gatchel' as defendant.

Subsequently, on February 9, 1970, Charles Leeka filed separate motion for judgment on the pleadings which was granted by the trial court. On the same day Gatchel appeared, filed his verified answer to the amended complaint, and his motion for summary judgment.

The burden of proof is on the moving party to establish the nonexistence of a genuine issue of fact. Newcomb v. Cassidy (1969), 144 Ind.App. 315, 245 N.E.2d 846, 17 Ind.Dec. 115 (transfer denied).

In the instant case defendant-appellee, the moving party, filed an affidavit in support of his motion for summary judgment stating 'that he (Gatchel) never communicated in any fashion with her (Ryser) and that no summons or suit was ever filed against him by this plaintiff (Ryser) or any other person prior to January 24th, 1970.'

In response to the motion for summary judgment Ryser filed an answer to such motion and subsequently filed an affidavit containing certain sworn statements.

Appellant contends that her answer filed in opposition to the motion for summary judgment sets forth genuine issues of fact sufficient to curtail the granting of summary judgment. Appellant's answer was phrased in the langauge of Rule TR. 15(C), Indiana Rules of Procedure, which provides as follows:

'(C) Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment

'(1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and

'(2) knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against him.'

On June 8, 1970, the trial court entered its finding 'that the cause of action against the defendant James Gatchell (Gatchel) was filed more than two years after December 21, 1967, and after the statute of limitations had run * * *', and granted appellee-Gatchel's motion for summary judgment.

Ryser then filed her motion to correct errors which, omitting caption and formal parts, read as follows:

'1. That there is an uncorrocted error of law occurring and properly raised in the proceedings relative to defendant, James Gatchel's, motion for a summary judgment.

'That the Court erred in granting summary judgment against the plaintiff in favor of James Gatchel for the reason that the amendment by plaintiff of her complaint substituting the defendant, Charles Leeka, for the defendant, James Gatchel, relates back to the original filing of the complaint on December 15, 1969, and would, therefore, not be barred by the Statute of Limitations.

'That Trial Rule 15(C) specifically relates back in the situation presented to the Court in this matter by affidavit of the plaintiff.

'Wherefore, the plaintiff prays that the Court take such action as will correct the error above alleged and for all other appropriate relief.'

Ryser's primary contention is that the answer filed in opposition to the motion for summary judgment sets forth certain issues incorporating the language of Rule TR. 15(C) supra. Such answer reads, in pertinent part, as follows:

'3. That the defendant, James Gatchel, has received notice of the institution of the action and will not be prejudiced in maintaining his defense on the merits.

'4. That he knew or should have known, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

'5. That Charles Leeka is the insurance agent representing Mr. James Gatchel and that Mr. Leeka knew immediately that there had been a mistake made in the proper identity of the party, but concealed the same.'

The question is whether, under the summary judgment statutes, such answer presents a genuine issue of material fact.

Rule TR. 56(E), Indiana Rules of Procedure, provides, in pertinent part, as follows:

'When a motion for summary judgment is made and supported as provided in this rule, as adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must be forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.' (Emphasis supplied.)

In assessing Ryser's answer in light of Rule TR. 56(E), supra, we conclude that the answer filed in opposition to the motion for summary judgment contains no more than mere allegations that certain facts exist. Such answer is insufficient to show the existence of an issue of material facts as required by Rule TR. 56(E), supra. We must then turn our attention to 'the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits and testimony, if any,' to determine if a genuine issue of material fact exists. See: Rule TR. 56(C), Indiana Rules of Procedure.

The affidavit filed by Ryser, omitting caption and formal parts, reads as follows:

'1. That on the 21st day of December, 1967, at approximately 3:30 p.m., in the (afternoon) plaintiff was involved in a collision in the City of Indianapolis, Marion County, Indiana.

'2. That at the scene of the accident the defendant gave to the plaintiff the name of Charles Leeka and that she assumed it was his name he was giving her.

'3. That the plaintiff understood the defendant to represent himself as Charles Leeka and represent that the owner of the car was a James Gatchell (Gatchel).

'4. That the plaintiff could have been confused by the names as to who was the operator or owner of the vehicle and did not realize that the driver of the car was giving her the name of his insurance agent to contact.

'5. That subsequent contacts with the insurance company were handled through a mr. David L. Edmondson, who was contacted by plaintiff's attorney, Lewellyn H. Pratt, on the 26th day of June, 1969, relative to the accident.

'6. That the defendant knew that an action would be brought against him for the reason that his agent, Mr. Edmondson, was notified in June of 1969, that suit would be commenced for damages on behalf of plaintiff.'

It has been generally held taht the facts contained in such affidavit and all reasonable inferences therefrom must be viewed most favorably to the party opposing the summary judgment. Any doubt as to the existence of a genuine issue of material fact must be resolved in favor of the opposing party. See: Newcomb v. Cassidy, supra, and cases cited therein; Wozniczka v. McKean et al., (1969), 144 Ind.App. 471, 247 N.E.2d 215, 17 Ind.Dec. 401 (transfer denied), and cases cited therein.

The most reasonable inference to be drawn from this affidavit is that a genuine issue of material fact does exist. Plaintiff-Ryser, as above set forth, has stated, under oath, that at the scene of the accident defendant-Gatchel gave her the name of Charles Leeka and that she assumed it was his name, that plaintiff understood the defendant to represent himself as Charles Leeka, and that the plaintiff may not have realized who the actual driver was. This information, if introduced as testimony, would be admissible in attempting to show sufficient proof that plaintiff was intentionally misled in such a manner that defendant is estopped from asserting the running of the statute. See: Talley v. Piersen (E.D.Pa.1963), 33...