Bowling v. Holdeman

• Decision Date: 30 December 1980
• Docket Number: No. 1-380A61,1-380A61
• Citation: 413 N.E.2d 1010
• Parties: William BOWLING, Plaintiff-Appellant, v. Roger HOLDEMAN, Jr. d/b/a Winchester Speedway, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 1010

413 N.E.2d 1010

William BOWLING, Plaintiff-Appellant, v. Roger HOLDEMAN, Jr. d/b/a Winchester Speedway, Defendant-Appellee.

No. 1-380A61.

Court of Appeals of Indiana, First District.

Dec. 30, 1980.

Charles R. Sheeks, Hilgedag, Johnson, Secrest & Murphy, Indianapolis, for plaintiff-appellant.

Bruce W. McLaren, Warner, Peckinpaugh, Wallace & McLaren, Muncie, for defendant-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

This is an appeal from the Randolph Circuit Court by plaintiff-appellant William Bowling (Bowling), from an adverse judgment on the evidence, entered by the court at the close of Bowling's evidence, in favor of defendant-appellee Roger Holdeman, Jr. d/b/a Winchester Speedway (Holdeman).

We affirm.

STATEMENT OF THE EVIDENCE AND RECORD

On October 2, 1976, Bowling attended automobile races at the Winchester Speedway in Randolph County, Indiana, as a paying spectator. At the conclusion of the races, as he was leaving the Speedway grounds on his motorcycle, a child darted in front of him. His unsuccessful attempt to avoid the child caused Bowling to fall and he was injured.

Bowling filed this action on December 10, 1976, for damages for personal injuries against Holdeman, who was styled in the complaint as "Roger Holdeman, Jr. d/b/a Winchester Speedway." He proceeded upon a claim that the "defendant negligently and wilfully failed and refused to provide adequate parking, safety precautions, traffic control and spectator control" in and around the site of the racing event. Trial was held on October 22, 1979. At the close of Bowling's evidence, the trial court, upon Holdeman's motion, entered a judgment on the evidence for Holdeman for the stated reason that the evidence did not disclose that Winchester Speedway was operated by Holdeman as an individual, but did show it was operated by a corporation of the name "Hero Promotions, Incorporated," and therefore, Holdeman was not the proper party defendant.

Insomuch as the appeal comes to us upon a judgment on the evidence rendered at the close of plaintiff's evidence, it is necessary to examine all the pleadings, procedures, and evidence relative to the question of ownership and control of Winchester Speedway.

Examination of the complaint discloses that in paragraph three thereof, Bowling alleged that "on or about October 2, 1976, plaintiff attended an automobile racing event sponsored, organized and given by defendant at Winchester Speedway." This is the only reference to ownership and control of the Speedway stated in the complaint. In his first defense in his answer to Bowling's complaint, Holdeman stated "1. This defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in rhetorical paragraphs 1 and 3 of plaintiff's complaint." This answer, under Ind.Rules of Procedure, Trial Rule 8(B)(2), is treated as a denial.

The record of the pretrial conference conducted on September 11, 1979, contains only the following reference to the issues:

"The Court finds that the parties agree that the defendant's legal duty was to exercise reasonable care to provide and maintain premises that were reasonably safe for the business invitee, such as plaintiff, and the question in the case is whether or not the defendant did or did not exercise the care and prudence which a reasonable person would have exercised under the same or similar circumstance. Defendant relies upon the defense of contributory negligence and plaintiff's alleged incurred or voluntary assumption of risk."

The evidence reveals the following as the total evidence concerning Holdeman's activities in regard to the accident, or his ownership of the Winchester Speedway: After the accident Holdeman was called to the scene, whereupon a conversation ensued between Bowling and Holdeman. Holdeman told Bowling to go home and he would take care of it. Bowling was reluctant to do so until he had a witness to the conversation because he did not want to leave the scene of an accident. Holdeman told Bowling he would take full responsibility. Holdeman testified at trial that Hero Promotions, Incorporated, was the owner of the Winchester Speedway on October 2, 1976, that he owned 75 percent of the stock, and he was president.

Prior to trial, interrogatories were filed by Bowling and answered by Holdeman on February 10, 1977. In those answers to interrogatories Holdeman stated, under oath, that his position and relationship to Winchester Speedway was that of "owner/promoter." These interrogatories and answers thereto, pursuant to the trial court's order and practice in the Randolph Circuit Court, were kept in filing cabinets used for storing deposition and discovery papers, but were not kept in the case file. Further, the filing of such discovery documents was not noted on the court's Bench Docket. The interrogatories and answers thereto were neither offered into evidence by Bowling, nor ever admitted at trial. They were later referred to in the unverified motion to correct errors, unsupported by affidavits. For the first time, after the overruling of the motion to correct errors, they were made part of the record by a special bill of exceptions on March 4, 1980, certified by the court at Bowling's request.

ISSUES

The sole issue on appeal is the propriety of the trial court's action in entering a judgment on the evidence. Bowling assigns five reasons which he contends demonstrate that the trial court's ruling was erroneous. Because of the overlapping substances of the assignments, and manner in which arguments were presented in the briefs, we have reorganized and restated the arguments as follows:

I. Holdeman committed a fraud upon Bowling by his false answers to the interrogatories in which he represented that he was owner of Winchester Speedway, and Holdeman should be estopped from asserting at the trial that Hero Promotions, Incorporated was the owner. Further, he was surprised by such actions.

II. Regardless of whether or not Hero Promotions, Incorporated owned Winchester Speedway, Holdeman is personally liable for the injury because he was president, was the owner of 75 percent of the stock, and had made a commitment to assume liability.

III. The trial court should have added Hero Promotions, Incorporated, as a party defendant, or substituted it as a party defendant.

IV. That the naming of Holdeman d/b/a Winchester Speedway as defendant was merely a misnomer, as he is one and the same party as Hero Productions, Incorporated, and Holdeman had appeared and defended.

V. Holdeman had an obligation to come forward and correct the matter of the suit against the wrong party.

STANDARD OF REVIEW

A judgment on the evidence is proper only if the plaintiff fails to present evidence of probative value on one or more of the elements necessary to a recovery on the claim made. A review of a ruling on a motion for judgment on the evidence is limited to a consideration of the evidence, and all reasonable inferences drawn therefrom, most favorable to the party against whom the motion is made. Ind.Rules of Procedure, Trial Rule 50; Koroniotis v. LaPorte Transit, Inc., (1979) Ind.App., 397 N.E.2d 656.

DISCUSSION AND DECISION

Issue I. Interrogatories

Ind.Rules of Procedure, Trial Rule 33(B) permits answers to interrogatories to be used at the trial to the extent permitted by the rules of evidence. However, discovery material, including interrogatories, does not automatically become evidence. Before answers to the interrogatories can be considered by the trier, they first must be introduced into evidence. Heilig v. Studebaker Corporation, (10th Cir. 1965) 347 F.2d 686. Had this been done, the admission by Holdeman in the answers to interrogatories that he was owner/promoter of Winchester Speedway would have been sufficient evidence for Bowling to avoid a judgment on the evidence. Instead, Bowling called Holdeman as a witness and interrogated him as to the ownership of Winchester Speedway, and Holdeman answered that Hero Promotions, Incorporated was the owner. At this point Bowling made no attempt to interrogate Holdeman as to the contradiction between his testimony at trial and his answers to interrogatories. Bowling did not offer the interrogatories into evidence, but rested with the record disclosing only that Hero Promotions, Incorporated was the owner of Winchester Speedway; that Holdeman was president and owned 75 percent of the stock. Therefore the interrogatories may not be considered for the purpose of determining whether there was sufficient evidence to avoid a judgment on the evidence. Johnson v. Taylor Building Corporation, (1978) Ind.App., 371 N.E.2d 404.

While Bowling does not so label his argument in regard to the interrogatories, he essentially argues that the false answers to the interrogatories amount to misconduct by the prevailing party, causing surprise and preventing a fair trial under Ind.Rules of Procedure, Trial Rule 59(A)(1). It is again noted that the interrogatories were not introduced into evidence and were therefore outside the record. T.R. 59(G)(1) provides as follows:

"When a motion to correct error is based upon evidence outside the record, the motion shall be supported by affidavits showing the truth of the grounds set out in the motion and the affidavits shall be served with the motion."

Though referring to the interrogatories, Bowling's motion to correct errors filed December 6, 1979, was neither verified, nor supported by affidavits. Further, the interrogatories and answers thereto were not attached to the motion. The motion to correct errors was overruled on December 19, 1979. The...