Riesbeck Drug Co. v. Wray

• Decision Date: 04 March 1942
• Docket Number: 16645.
• Citation: 39 N.E.2d 776,111 Ind.App. 467
• Parties: RIESBECK DRUG CO. v. WRAY.
• Court: Indiana Appellate Court

39 N.E.2d 776

111 Ind.App. 467

RIESBECK DRUG CO. v. WRAY.

No. 16645.

Appellate Court of Indiana, in Banc.

March 4, 1942

[Copyrighted Material Omitted]

White Wright & Boleman, of Indianapolis, and Herbert C. Jones of Shelbyville, for appellant.

Seth S. Ward, of Indianapolis, and Wilbur Pell and Michael Sullivan, both of Shelbyville, for appellee.

BEDWELL Presiding Judge.

This is the second appeal of this cause in which the appellee, Mary G. Wray, as administratrix of the estate of Norman E. Wray, seeks to recover damages alleged to have been sustained by the widow and children of decedent because of his wrongful death. Upon the prior appeal (Riesbeck Drug Co., Appellant, v. Mary G. Wray, as Adm'x of Estate of Norman E. Wray, Appellee, 1930, 94 Ind.App. 615, 170 N.E. 862, 863), this court reversed a judgment in favor of the appellee. The assigned error at the former appeal was the overruling of appellant's motion for a new trial and the grounds of such motion relied upon by this court as a reason for the reversal were that (a) the verdict of the jury was not sustained by sufficient evidence, and (b) the verdict of the jury was contrary to law.

In such former opinion this court recited portions of the evidence which showed, among other things, that upon May 7, 1928, Russell Wray, an eight year old son of decedent, at the request of the decedent, purchased of an employee of appellant a small bottle of carbolic acid. This acid was delivered by the employee to the son, who returned with it to the home of his father, which was about four squares from the drug store. The father was in bed when the son gave him the carbolic acid. The father then drank it and died. From the evidence at the former trial this court reached the following conclusions:

"The boy was the agent of the father in the procurement of the acid. If the father had sent a man of full age to procure the acid, it would not have changed the legal aspect of this case. The sale of the acid was not the proximate cause of the decedent's death. There is no evidence to show sanity or unsoundness of mind. The drinking of the acid was the proximate cause of death, and it does not matter how the poison was procured. * * *

"The verdict of the jury is not sustained by sufficient evidence, and is contrary to law.

"Judgment reversed."

After cause was remanded to the court below a third paragraph of complaint was filed by appellee. This was amended and the cause was tried upon a second amended third paragraph of complaint. Upon retrial the jury returned a verdict for the appellee in the amount of $2,500.

One question duly presented by appellant is whether the verdict of the jury at the second trial was sustained by sufficient evidence or was contrary to law. This requires us to consider the effect of our former determination concerning the sufficiency of the evidence and whether such determination, as the law of the case, affects this second verdict.

The principles of law established on a former appeal of a case, so far as applicable, remain the law of the case throughout all of its subsequent stages and must be adhered to, whether right or wrong, not only in the trial court, but in the appellate tribunal. Currier v. Elliott, 1895, 141 Ind. 394, 39 N.E. 554; Elkhart & Western Railroad Co. v. Waldorf, 1897, 17 Ind.App. 29, 46 N.E. 88; Cleveland, C., C. & St. L. R. Co. v. Blind, 1917, 186 Ind. 628, 117 N.E. 641; Stickler v. Live Stock Ins. Ass'n, 1920, 73 Ind.App. 508, 127 N.E. 831.

The decision of this court, upon the former appeal, that the evidence was insufficient to show that the negligence alleged was the proximate cause of the death of appellee's decedent, is the law of the case upon those facts; and if the evidence, as shown, by this record, bearing upon the question of proximate cause, is substantially the same, then we must hold that the question of proximate cause has been adjudicated in the former appeal and that we are bound by the determination there reached as the law of the case. Westfall v. Wait, 1905, 165 Ind. 353, 359, 73 N.E. 1089, 6 Ann.Cas. 788; Fifer v. Rachels, 1905, 37 Ind.App. 275, 76 N.E. 186; Ohio Valley Trust Co. v. Wernke, 1912, 179 Ind. 49, 55, 99 N.E. 734; Philbin v. Carr, 1928, 90 Ind.App. 445, 162 N.E. 247; Souders v. Jeffries, 1886, 107 Ind. 552, 555, 8 N.E. 288.

It is not enough, upon the present appeal, that there be additional evidence bearing upon the question of proximate cause. If there is additional evidence that is merely cumulative, the doctrine of the law of the case is applicable. Fifer v. Rachels, supra. The new and additional evidence upon the second trial must be substantially different and warrant a different conclusion. Ohio & Mississippi Railway Co. v. Hill, Adm'x, 1893, 7 Ind.App. 255, 34 N.E. 646; City of Bluffton v. McAfee, 1899, 23 Ind.App. 112, 117, 53 N.E. 1058; Westfall v. Wait, 1905, 165 Ind. 353, 359, 73 N.E. 1089, 6 Ann.Cas. 788.

The application of the doctrine of "the law of the case" is well expressed by the Supreme Court in the case of Alerding v. Allison, 1908, 170 Ind. 252, 260, 83 N.E. 1006, 1009, 127 Am.St.Rep. 363, in the following language: "When the sufficiency of a pleading or of the evidence is challenged, the court tests the question by the rule of law applicable to the set of facts pleaded or in evidence. On appeal, if the judgment of the trial court is affirmed, then the law as declared by the court on that particular state of facts remains 'the law of the case' as affecting the points adjudged, throughout all subsequent stages of the case. But if it is found on appeal that the trial court has erred in the application of the correct rule of law, and the cause is reversed and remanded with the right of amendment and new trial, and the pleading, or the body of the evidence, is amended by the addition of new and material facts that make another and different case, and which call for the application of an entirely different rule of law, in such instance the law as declared in the first appeal on the old facts is not 'the law of the case' on the second appeal, because the subject-matter adjudged is not the same. We do not, however, mean by this that the mere addition of new matter to a pleading, or to the body of the evidence, is sufficient to avoid 'the law of the case' rule. Amendments to a pleading that only amplify, explain, or limit the facts already pleaded, or additional evidence which is merely cumulative to evidence of the same class given on the first appeal, will not carry the question outside the operation of the rule"; and by this court in City of Bluffton v. McAfee, supra [23 Ind.App. 112, 53 N.E. 1059], as follows: "Where it is held that a party cannot recover on the facts disclosed, such conclusion is binding on a subsequent appeal if the facts remain the same; but if the facts are different, and warrant a different conclusion, the former decision is not conclusive on the subsequent appeal. Dodge v. Gaylord, 53 Ind. 365; Eckert v. Binkley, 134 Ind. 614, 33 N.E. 619, 34 N.E. 441; Ohio, etc., R. Co. v. Hill, 7 Ind.App. 255, 34 N.E. 646."

The only new or additional evidence introduced at the second trial was evidence concerning the mental condition of appellee's decedent when he sent his son after, and when he drank the acid. As stated by the appellee in her brief: "The evidence shows without contradiction that the plaintiff's decedent was temporarily insane and deranged because of illness and unemployment, and was deranged because his family was in dire need of food, and he was without money and means to provide for his family because of the depression." Is such evidence sufficient to warrant a different conclusion as to the proximate cause of the decedent's death? While it is true that this court in its former opinion discussed the absence of evidence concerning the sanity or unsoundness of mind of appellee's decedent, it nowhere indicates that such evidence was material upon the question of proximate cause. Under the issues made by the pleadings, such evidence would have been material upon the question of contributory negligence. The complaint alleged that Norman E. Wray drank the acid and died shortly thereafter from the effects.

Although in the case of adults it has been deemed impracticable and unwise to determine contributory negligence on the basis of whether the party was mentally acute or inclined to be dull or slow-witted, although not mentally deficient, a person who is so absolutely devoid of intelligence as to be unable to apprehend apparent danger and to avoid...