Belcher v. Buesking

• Decision Date: 19 January 1978
• Docket Number: No. 3-1275A276,3-1275A276
• Citation: 371 N.E.2d 417,175 Ind.App. 322
• Parties: Charles R. BELCHER and Marjorie Belcher, Individually, and Charles R. Belcher, next of friend of Paul Belcher, a minor, Plaintiffs-Appellants, v. Thomas Michael BUESKING and Walter H. Buesking, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 417

371 N.E.2d 417

175 Ind.App. 322

Charles R. BELCHER and Marjorie Belcher, Individually, and Charles R. Belcher, next of friend of Paul Belcher, a minor, Plaintiffs-Appellants, v. Thomas Michael BUESKING and Walter H. Buesking, Defendants-Appellees.

No. 3-1275A276.

Court of Appeals of Indiana, Third District.

Jan. 19, 1978.

Richard J. Thonert, Fort Wayne, for plaintiffs-appellants.

William F. McNagny, John F. Lyons, Fort Wayne, for defendants-appellees.

HOFFMAN, Judge.

Charles R. Belcher and Marjorie Belcher, individually, and Charles Belcher as next of friend of Paul Belcher, a minor, brought an action against Thomas Michael Buesking and Walter H. Buesking for injuries sustained as the result of an automobile accident north of Fort Wayne in Allen County, Indiana. The allegations of the complaint were generally that the plaintiffs suffered personal injury and property damage because of the negligent operation of an automobile owned by Walter Buesking and driven by his son Thomas Buesking. The defendants responded with a denial and counterclaim for property damage to their vehicle.

After trial to the court judgment was entered with neither party recovering from the other. Appellants subsequently perfected this appeal contending that the trial court erred by considering alleged evidence of a physics experiment not in the record and as a result incorrectly imputed the contributory negligence surmised of Charles Belcher to his eleven-year-old son, Paul Belcher.

The record reveals the following facts most favorable to the appellees. On November 13, 1970, Charles Belcher was taking his son to a wooded area north of Fort Wayne, Indiana, to run their dogs in preparation for the hunting of raccoons. While traveling eastbound on the south side of the Dupont Road at approximately 25 to 30 miles an hour, two cars came up from the rear at a fast rate of speed. As Belcher approached some railroad tracks, the first automobile driven by Thomas Buesking's girlfriend passed him in the left lane going approximately 50 miles per hour. The second automobile driven by the defendant failed in its attempt to overtake the Belcher vehicle, instead striking the left rear wheel area and pushing it into the left side road ditch. Testimony from Thomas Buesking charged that the Belcher automobile was attempting to turn left onto a backroad; however, the plaintiff stated that he was struck from the left rear and thrown to the passing lane where he was struck a second time.

Upon these facts appellants first ascribe as error the trial court's alleged consideration of evidence not in the record. This is said to be revealed by the judge's comments based on a judicial knowledge of physics and in particular the remembrance of an old high school experiment upon which he concluded the impossibility of the events as described in Charles Belcher's testimony. Appellants assert this to be a violation of their due process rights to a hearing in which the evidence before the court is subject to investigation, cross-examination and rebuttal.

The Bueskings respond primarily that the issue so raised has been waived. Relying on Ind.Rules of Procedure, Trial Rule 59(D), appellees contend that the affidavit submitted concerning the trial judge's comments on the evidence at the end of trial had to have been filed contemporaneously with the motion to correct errors in order to preserve any allegation of error on appeal.

Trial Rule 59(D), supra, concerns itself with evidence outside the record of trial. The comments of the trial judge upon which appellants base their appeal were made to the parties at the close of final arguments on the evidence. They were within the proceedings but unrecorded. Ind.Rules of Procedure, Appellate Rule 7.2(A)(3)(c), provides the proper method for preserving allegations of error in this context wherein it states:

"If no report of all or part of the evidence or proceedings at the hearing or trial was or is being made, or if a transcript is unavailable, a party may prepare a statement of the evidence or proceedings from the best available means, including his recollection. If submitted contemporaneously with the matter complained of, the statement may be settled and approved by the trial court. If submitted thereafter, the statement shall be served on other parties who may serve objections or prepare amendments thereto within ten (10) days after service. The statement and any objections or prepared amendments shall be submitted to the trial court for settlement and approval and as settled and approved shall become a part of the record and be included by the clerk of the trial court in the record.

"If statements or conduct of the trial judge are in controversy, the statement shall be supported by sworn affidavit which shall be submitted to the trial judge for his certification. If he refuses to certify the statement he shall file opposing affidavits. All such affidavits shall be included in the record by the clerk of the trial court."

Appellants are in substantial compliance with this rule in that they filed a sworn affidavit describing the comments made, served a copy upon opposing counsel and received certification from the trial court. The affidavit was included within the record of proceedings and certified to by the clerk. See, Dunbar v. State (1974), 160 Ind.App. 191, 311 N.E.2d 447 (transfer denied).

However, in considering the issue so raised upon its merits, it must still be concluded that reversible error is not demonstrated by charging the trial judge with the consideration of evidence not in the record merely because he recalled his understanding of physics in commenting at the close of final arguments. Trial courts often make comments upon the evidence before pronouncing judgment. Furthermore they usually draw inferences which are in fact dependent upon known facts, sometimes considering them under the rubric of judicial notice.

In this regard appellants correctly argue that the actual private knowledge of the judge is not sufficient grounds for the taking of judicial notice of a fact as the basis for a finding; Darnell v. Barker (1942), 179 Va. 86, 18 S.E.2d 271; 31 C.J.S. Evidence § 11, at 832; McCormick et al. on Evid., § 329, at 761 (2d Ed. 1972); nor should judicial notice be taken without disclosure at trial and provision for an opportunity to object. Ohio Bell Telephone Co. v. Public Utilities Commission (1937), 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093. See, Fletcher, etc., Trust Co. v. American State Bank (1925), 196 Ind. 118, 147 N.E. 524.

Nevertheless, the allowable scope of judicial notice varies according to the function the judge is performing. When discerning adjudicative facts, the trial court is allowed a wider latitude in its role as a fact finder than would be allowed when it sits as a judge in a jury trial. Baltimore & Ohio R. Co. v. Daugherty (1953), 123 Ind.App. 373, 111 N.E.2d 483. See, Calvert v. London (1965), 137 Ind.App. 595, 210 N.E.2d 376. In addition judicial notice of facts only collaterally involved with the facts in issue has been upheld as appropriate. Carter v. Neeley's Estate (1936), 102 Ind.App. 257, 2 N.E.2d 221. See, Graves v. Kelly (1916), 62 Ind.App. 164, 112 N.E. 899. Accordingly, within the framework of judicial notice, a knowledge of certain physical laws going to an evaluation and understanding of the evidence, and not to a consideration of evidence other than that presented by the parties is not considered error. Angola R., etc.,...