Palace Bar, Inc. v. Fearnot

• Citation: 381 N.E.2d 858,269 Ind. 405
• Decision Date: 12 October 1978
• Docket Number: No. 1078S222,1078S222
• Parties: PALACE BAR, INC., an Indiana Corporation, Herman Walters and Ruth Walters, d/b/a the Palace Bar and Nell Lynn, Appellants, v. Rosetta FEARNOT, as Surviving Spouse and Administratrix of the Estate of Garlen Fearnot, Deceased, Appellee.
• Court: Supreme Court of Indiana

Page 858

381 N.E.2d 858

269 Ind. 405

PALACE BAR, INC., an Indiana Corporation, Herman Walters and Ruth Walters, d/b/a the Palace Bar and Nell Lynn, Appellants, v. Rosetta FEARNOT, as Surviving Spouse and Administratrix of the Estate of Garlen Fearnot, Deceased, Appellee.

No. 1078S222.

Supreme Court of Indiana.

Oct. 12, 1978.

Eric A. Frey, Rosenfeld, Wolfe, Frey & Lowery, Terre Haute, Harold A. Harrell, Bloomington, Gus Sacopulos, Terre Haute, for appellants

Walter E. Bravard, Jr., Dean E. Richards, Richards, Bennett & Bravard, Indianapolis, for appellee.

ON PETITION TO TRANSFER

PIVARNIK, Justice.

This cause comes to us on petition to transfer from the Court of Appeals, First District. Action was brought in the Circuit Court of Monroe County by Rosetta Fearnot, the surviving spouse and administratrix of the estate of her late husband, Garlen Fearnot, against the corporation which owned and operated the Palace Bar, the shareholders of the corporation and others to recover for the wrongful death of her husband. The trial court entered judgment on a verdict awarding $93,000 to the plaintiff. The Court of Appeals reversed the judgment insofar as it was adverse to one of the individual shareholders and further found the award of damages to be excessive. The judgment of the trial court was in all other respects affirmed. Palace Bar, Inc. v. Fearnot, (1978) Ind.App., 376 N.E.2d 1159.

On January 3, 1974, Garlen Fearnot entered the Palace Bar for the purpose of purchasing and being served alcoholic beverages. According to testimony, Fearnot had consumed two shots of whiskey but did not appear intoxicated when, without saying anything, he abruptly left the bar and started toward the rear of the premises. Witnesses stated that Fearnot staggered as he walked, bumped against a booth and stumbled against a pinball machine as he left the front room of the bar and continued toward the rear door, which was the door he customarily used. Subsequently, the staggering Garlen Fearnot, according to conflicting testimony, either fell down the stairs or, while clutching for the handrail, slid to the landing below.

Walters, the bartender and owner-manager of the Palace Bar, watched Fearnot as he left the bar and, thinking something might be amiss because of Fearnot's past history of heart problems, followed him. According to Walter's testimony, he discovered Fearnot on the stair landing and attempted to be of assistance to Fearnot, who was slumped against the rail, by laying him down on the landing. Walters testified that he asked Fearnot if he could help to which Fearnot replied that he would be all right and to just leave him alone. Walters went back to the front of the bar where he discussed the situation with other patrons. Walters and others apparently checked repeatedly on Fearnot's condition although no one called for medical assistance at that time. Thereafter, about an hour later, Walters apparently discovered that Fearnot had lost consciousness whereupon Walters called for the fire department's emergency medical unit, which was located across the alley from the bar. The responding unit was unable to revive Fearnot who was later pronounced dead at the scene by the Greene County Coroner.

The Coroner ruled that upon observing the body it was his opinion that Fearnot died as a result of a natural cause which appeared to him to be a cerebral hemorrhage. He further stated that it was his opinion that the injuries from the fall could not and did not cause Fearnot's death.

Dr. James Benz, an Indianapolis pathologist who performed the autopsy, attributed Fearnot's death to heart disease. He also stated that although there were bruises found on the body, these bruises were superficial and that Fearnot did not die as a result of a fall or injury. Dr. Benz testified that it was possible that Fearnot was having a heart attack when he left the bar stool and started walking to the back of the room. This, he said, would explain Fearnot's staggering manner, however, he cautioned that there was no way of knowing whether this was true or not. He further testified that it is possible for a fall to bring about a heart attack, but again said that there is no way of knowing whether or not this actually happened. Dr. Benz also testified that it was possible that Fearnot's life would have been saved with more prompt treatment, however, he warned, this was very speculative.

Evidence further showed that Fearnot experienced a variety of health problems and was, at the time of his death, on total non-service connected disability from the Veteran's Administration. According to testimony, he was known to have had other experiences which required him to lie down for several minutes before being able to continue and he had also confided to others that he had a "bad ticker" or heart problems.

Mrs. Fearnot's complaint consisted of four counts including negligence, nuisance, breach of warranty, and wilful and wanton misconduct. At the close of the plaintiff's evidence, the defendants filed a motion for Judgment on the Evidence under Ind.R.Tr.P. 50 on the ground that the plaintiff had not maintained her burden of proof. We note that the parties have referred to this as a Motion for Directed Verdict throughout this cause which reference is a carryover from our practice under the old procedural rules, wherein the trial judge actually furnished the jury with a verdict of judgment for the defendant and directed that they return such verdict. It is not properly called a directed verdict today since a court no longer directs a verdict, but withdraws the issues from the jury and enters judgment as a matter of law. In this case, the substance of the motion had the same effect, however, and the trial court denied the motion and left the issues before the jury. The defendants refiled their motion at the close of all the evidence and the court again denied the motion. The issues were again raised on the Motion to Correct Errors which was denied by the court and we face those issues here.

Defendants-Appellants' first assignment of error is based on the contention that Mrs. Fearnot did not prove any proximate relationship between the appellants' acts or omissions and Fearnot's death. We agree with this position and therefore find it unnecessary to consider any of the other issues in this cause. This conclusion also leads us to find the Court of Appeals in error and we therefore vacate their opinion.

It is basic, of course, that the plaintiff had the burden of proving by a preponderance of the evidence that the defendants had a duty to the plaintiff, that the defendant's conduct failed to fulfill or conform to the requisite standard of care required to fulfill that duty and that the plaintiff sustained an injury as a result of that failure. Miller v. Griesel, (1974) 261 Ind. 604, 308 N.E.2d 701; Elliott v. State, (1976) Ind.App., 342 N.E.2d 674. In order for the plaintiff to carry her burden her evidence must establish that the alleged wrongful act was a proximate cause of the occurrence and that the occurrence was a proximate cause of the injury. Haney v. Meyer, (1966) 139 Ind.App. 663, 215 N.E.2d 886; Mitchell v. Smith, (1965) 138 Ind.App. 93, 211 N.E.2d 809. Thus, in a jury trial, a court should withdraw the issues from the jury and enter judgment on the evidence in favor of the defendants when, at the close of the plaintiff's evidence, there is a total absence of evidence or reasonable inferences on at least one essential element of the plaintiff's case. Such a judgment is proper when the evidence is without conflict and is susceptible to but one inference and that inference is in favor of the defendants. Allied Fidelity Ins. Co. v. Lamb, (1977) Ind.App., 361 N.E.2d 174; Mamula v. Ford Motor Co., (1971) 150 Ind.App. 179, 275 N.E.2d 849. Furthermore, plaintiff's burden requires that she present evidence of probative value based on facts, or inferences to be drawn from facts. Her burden may not be carried with evidence based merely upon supposition or speculation. An inference cannot arise or stand by itself. There must first be a fact established from which an inference arises. Prudential Insurance Co. v. VanWey, (1945) 223 Ind. 198, 204, 59 N.E.2d 721, 725. With these well-established rules in mind, we will examine the evidence presented by the plaintiff.

Coroner Maurice Haag, who was described as a medical technician, examined the body at the scene and came to the conclusion that the decedent died of natural causes and not from trauma. He stated that his examination consisted of looking at and feeling the body, and he believed that the cause of death was cerebral hemorrhage. He said that the trauma he observed on and about the body of the decedent could not have caused his death. His testimony in this regard is set out as follows:

Direct Examination

Q. Okay. Did you do any physical other than looking . . . .

A. No, sir.

Q. . . . . did you do any physical examination of the body whatsoever?

A. Uh, well . . . . .

Q. Other than looking with your hand, I mean such as . . . . .

A. Feeling and looking, you know. No. That was it.

Q. You didn't take any tests?

A. No.

Q. Okay. And you made your verdict based upon . . . . .

A. Observation.

Q. Observation.

A. Right.

Cross Examination

Q. In it as I understood your testimony you indicated at the end that death was due to natural causes. Is that correct?

A. That's correct, sir.

Q. Was that your opinion, sir?

A. Yes, sir.

Q. You simply thought it was death by natural causes, there was no reason to have any further testing or work done?

A. That's right.

Q. You ruled out completely any question about this being an accidental death, didn't you Mr. Haag?

A. Yes, sir.

Q. In other words, you did not feel that the fall or any alleged fall down the stairs caused Mr. Fearnot's death?

A. No, sir.

Q. She did tell you that he had a history of heart trouble?

A. Right.

Q. Did she ask for you to have an autopsy done at that...