Poxon v. General Motors Acceptance Corp.

• Citation: 407 N.E.2d 1181
• Decision Date: 28 July 1980
• Docket Number: No. 3-679A182,3-679A182
• Parties: John POXON and Delores Poxon, Plaintiffs, v. GENERAL MOTORS ACCEPTANCE CORPORATION, and Bruno Blash.
• Court: Indiana Appellate Court

Page 1181

407 N.E.2d 1181

John POXON and Delores Poxon, Plaintiffs, v. GENERAL MOTORS ACCEPTANCE CORPORATION, and Bruno Blash.

No. 3-679A182.

Court of Appeals of Indiana, Third District.

July 28, 1980.

Frank J. Galvin, Jr., Galvin & Galvin, Hammond, for General Motors Acceptance Corp.

Roy Dakich, Merrillville, for Bruno Blash.

Thomas R. Bullard, Cohen, Cohen & Bullard, East Chicago, for plaintiffs.

STATON, Judge.

John Poxon and his wife, Delores, filed a negligence action against General Motors Acceptance Corporation (GMAC) and Bruno Blash (Blash) for injuries sustained as the result of an automobile collision. The Poxons alleged that Blash, as an employee and agent of GMAC, negligently operated his vehicle so as to cause property damage to their automobile and personal injury to Poxon. The jury found for the Poxons and against GMAC and Blash and assessed the damages at $4,000. The court entered judgment accordingly.

On appeal, GMAC, as the sole appellant, raises four issues for our consideration:

(1) Was the court's denial of a line of questioning concerning an independent contractor defense during the voir dire, a reversible error?

(2) Did the trial court err in its denial of GMAC's motion for summary judgment?

(3) Did the court commit error by denying GMAC's motion for judgment on the evidence at the close of all the evidence?

(4) Was it error for the court to modify GMAC's tendered instruction # 5?

We affirm.

The facts relevant to our disposition of the case indicate that Blash, under the business name of the Gary Motor Club, operated an automobile repossession lot for the reconditioning of cars for resale to the public. He worked exclusively with GMAC under the terms of an agreement executed on May 14, 1958. The Agreement on Sale of Repossessions, signed by the GMAC office manager, is as follows:

"Agreement on Sale of Repossessions

"Arrangements have been completed with Bruno Blash whereby he will handle the sale of Non-Recourse repossessions for us on the following basis:

"On cars which are assigned to him to retail, he will be paid a commission of 8% on the cash difference drawn with a maximum of $100 per car. Trades will be accepted with valuation prior approved by us established before completion of any transactions. GMAC will pay any reconditioning expense in connection with any Non-Recourse repossessions which we decide to retail, with all reconditioning to be prior approved by GMAC.

"Blash will also handle wholesaling of used cars which are assigned to him for disposal. On junkers with a resale value up to $250, he will receive $10 per car for the sale. On other Non-Recourse repossessions assigned to him to be wholesaled, he will be paid at the rate of $20 per car.

"It was agreed that Mr. Blash will sit in on our Monday morning meetings which are held every Monday in connection with Non-Recourse repossessions, at which time cars will be assigned to him to be either wholesaled or retailed. Prices will be established by us for each car individually on either a wholesale or retail basis, depending upon whether the car is to be wholesaled or retailed."

I. Voir Dire

GMAC contends that it was prejudiced by the court's denial, during the voir dire, of "the opportunity to inquire as to any prejudices the jury may have concerning any specific defenses such as contributory negligence with relation to the independent contractor defense." The Poxons, in their appellees' brief, explain that prior to the voir dire, both parties had been admonished not to elicit promises from the jury with respect to hypothetical factual questions concerning respondeat superior. The Poxons claim that the court was forced to give the admonition about which GMAC complains only after the company had repeatedly attempted "to try its case during voir dire."

We are unable to make a determination as to this claim of error. Despite GMAC's assertions, it has not presented to us a sufficient record which would permit appellate review. There is nothing in the record, beyond a statement that "Voir dire conducted" to indicate that anything occurred. Since it is the duty of the appellant to make a proper record, this failure bars our consideration of this claim of error. Mendez v. State (1977), 267 Ind. 309, 370 N.E.2d 323. We cannot consider matters outside the record. An error alleged, but not revealed by the record is not a proper subject for our review. Hall v. State (1980), Ind., 405 N.E.2d 530; Mendez v. State, supra.

II. Summary Judgment

A summary judgment is a procedure for applying the law to the facts, when there is no factual controversy. It is not a procedure for trying the facts and for determining the preponderance of the evidence. Krueger et al. v. Bailey et al. (1980), Ind.App., 406 N.E.2d 665. (See Ind.Rules of Procedure, Trial Rule 56(C)). The party seeking a summary judgment has the burden of establishing that there are no genuine issues as to any material fact. Any doubt must be resolved against the movant. Ang v. Hospital Corp. of America (1979), Ind.App., 395 N.E.2d 441. Even if the facts are not in dispute, a summary judgment is not appropriate when the information before the court discloses a good faith dispute as to the inferences to be drawn from these facts. Krueger et al. v. Bailey et al., supra; Hale v. Peabody Coal Company (1976), Ind.App., 343 N.E.2d 316.

In determining whether to grant a motion for summary judgment, the court considers the facts set forth in the non-moving party's affidavits as true and construes the products of discovery liberally in his favor. Ang v. Hospital Corp. of America, supra. Pleadings, evidence, and inferences are to be viewed in a light most favorable to the party against whom the summary judgment is sought. Randolph v. Wolff (1978), Ind.App., 374 N.E.2d 533. Only if no issue as to a material fact is raised, may the court grant a summary judgment. To defeat such a motion, the opposing party only needs to show that a material fact is genuinely in issue. Brandon v. State (1976), 264 Ind. 177, 340 N.E.2d 756.

On June 3, 1977, GMAC filed a motion for summary judgment alleging that Blash was not its representative, employee or agent. Rather, it argued, Blash was operating as an independent contractor with reference to GMAC. The company attached to its motion an affidavit of its assistant control manager who stated, among other things, that Blash was not employed by GMAC. On August 22, 1977, the Poxons filed a motion in opposition to GMAC's motion for summary judgment. This motion included information obtained from a deposition of Blash taken on June 3, 1977, a memorandum of law and the Agreement on Sale of Repossessions. On August 25, 1977, the court denied GMAC's motion for summary judgment.

Urging that the court should have granted its motion for summary judgment, GMAC explains that "when a party supports a motion for summary judgment with affidavits, the adverse party may not rest upon mere allegations or denials but the response must set forth specific facts showing there is a genuine issue for trial." Citing Augustine v. First Fed. Sav. & L. Ass'n of Gary (1979), Ind., 384 N.E.2d 1018, it argues that Blash's deposition could not properly be considered by the court in ruling upon the motion for summary judgment because the deposition had not been published.

In considering, on appeal, the granting of three summary judgments by the trial court, the Court of Appeals in Augustine v. First Fed. Sav. & Loan Ass'n of Gary (1978), Ind.App., 373 N.E.2d 181, had broken the seals on depositions which had not been published. After reading them, it had determined that contained therein was testimony which raised a genuine issue of material fact between the parties. Accordingly, the Court of Appeals had reversed the trial court's granting of the summary judgments. Only one party petitioned the Indiana Supreme Court for transfer.

On appeal of this question, our Supreme Court in Augustine vacated a portion of the Court of Appeals' opinion by holding that in order to place a deposition before the court, publication is required. A deposition, it said, cannot be taken into account by the court in ruling on any motions of the parties until it is published by order of the court upon a motion of either party. Augustine v. First Fed. Sav. & L. Ass'n of Gary, supra, at 1020.

There is no question that the holding in Augustine limits a court's consideration to published, rather than unpublished, depositions in ruling upon a motion. It is, however, unclear as to whether a court may consider information extracted from an unpublished deposition which is incorporated into a motion. In the case at bar, there is no showing that the court relied upon Blash's unpublished deposition in its denial of GMAC's motion for summary judgment. Rather, it appears that the court relied upon the informations set forth in the Poxons' motion in opposition to GMAC's motion for summary judgment. This information had been obtained from the unpublished Blash deposition.

This Court need not ponder whether the time is at hand to extend the rule announced in Augustine to information extracted from...