Clyde E. Williams & Associates, Inc. v. Boatman

• Decision Date: 18 May 1978
• Docket Number: No. 1-477A71,1-477A71
• Citation: 176 Ind.App. 430,375 N.E.2d 1138
• Parties: CLYDE E. WILLIAMS AND ASSOCIATES, INC., Appellant (Defendant below), v. Ruby BOATMAN, Administratrix of the Estate of Ralph Boatman, Deceased, Appellee(Plaintiff below).
• Court: Indiana Appellate Court

Page 1138

375 N.E.2d 1138

176 Ind.App. 430

CLYDE E. WILLIAMS AND ASSOCIATES, INC., Appellant (Defendant below), v. Ruby BOATMAN, Administratrix of the Estate of Ralph Boatman Deceased, Appellee(Plaintiff below).

No. 1-477A71.

Court of Appeals of Indiana,First District.

May 18, 1978.

Eric A. Frey, of Rosenfeld, Wolfe, Frey & Lowery, Terre Haute, for appellant.

Buena Chaney, Mann, Mann, Chaney, Johnson, Hicks & Goodwin, Terre Haute, for appellee.

LYBROOK, Presiding Judge.

Clyde E. Williams and Associates, Inc., defendant-appellant, brings this appeal following the entry of judgment in favor of Ruby Boatman, Administratrix of the Estate of Ralph Boatman, Deceased, plaintiff-appellee. The trial to a jury had resulted in a verdict of $120,000 in favor of Boatman.

The facts most relevant to this appeal indicate that Williams is an engineering concern which was under contract with the Town of Rockville for the supervision of the installation of a sewer system in that town. The contract required Williams to prepare the specifications and design the sewer system, and further required Williams to inspect the construction to assure the town that the specifications were being followed. The actual construction was being performed by the Howard E. Schmidt Company, which had also entered into a contract with the Town of Rockville.

Ralph Boatman was an employee of Schmidt and was engaged in the laying of sewer pipe in the bottom of a ditch when the walls of that ditch collapsed. As a result of that collapse, Ralph Boatman was killed. Following the accident, suit was filed against Williams which resulted in the above mentioned verdict and judgment.

Williams presents the following issues for our review:

(1) Did the trial court commit reversible error when it overruled Williams' Motions for Directed Verdict, both at the end of the plaintiff's evidence and when renewed at the close of all the evidence? The Motions were based on the following theories:

(a) Williams owed no duty of care to Boatman.

(b) Boatman was contributorily negligent as a matter of law.

(c) Boatman incurred or assumed the risk of his injury as a matter of law.

(d) No act of negligence by Williams was the proximate cause of the injury.

(2) Were any of the eight contested instructions to the jury sufficient error to necessitate reversal?

Prior to any discussion of the merits of this appeal, we deem it necessary to briefly address a procedural issue which has arisen subsequent to trial. Williams timely filed its Motion to Correct Errors, praecipe, transcript and appellant's brief. Upon the completion of these filings, and during the time period allowed for an answer brief to be filed by the appellee, Boatman filed a Motion to Dismiss or Affirm the Judgment. In conjunction with that motion Boatman filed a Motion for Extension of Time in which to file her answer brief. She requested a thirty-day extension and requested that period not commence to run until her Motion to Dismiss or Affirm had been granted or denied by this court. The Motion for Extension of Time was granted.

Boatman's Motion to Dismiss and brief in support thereof asserted numerous alleged errors of a technical nature in Williams' praecipe and the manner in which the transcript was prepared and presented to this court.

While the preparation of the three volume transcript is by no means a model of appellate procedure, its defects were not so substantial as to necessitate a dismissal of the appeal. This is especially so in light of the increased preference of the courts to reach a resolution of cases based on their merits and not on procedural technicalities. Central Ind. Railway Co. v. Mikesell (1965), 139 Ind.App. 478, 211 N.E.2d 794; Costanzi v. Ryan (1977), Ind.App., 368 N.E.2d 12.

Following the overruling of her Motion to Dismiss, Boatman timely filed her answer brief in which she laboriously detailed the same alleged technical inadequacies which had been asserted in her Motion to Dismiss. It is the law in this state that the filing of a Motion for Extension of Time in which to file an answer brief waives any procedural error in the preparation of the transcript or briefs. Ind. Rules of Procedure, Appellate Rule 14(B); Leuck v. Goetz (1972), 151 Ind.App. 528, 280 N.E.2d 847; Bland v. Phillips (1966), 138 Ind.App. 214, 213 N.E.2d 339; Terry v. Terry (1973), 158 Ind.App. 218, 301 N.E.2d 853. As a requirement for the granting of a Motion for Extension of Time in which to file an answer brief the appellee must, as did Boatman, file a verified petition stating that the brief will be on the merits and that all Motions to Dismiss and other dilatory motions have been filed. It is well settled that the appellee may not contravene her affidavit and assert technical errors following the granting of an extension of time in which to respond. Leuck, supra. We find this rule particularly appropriate when a Motion to Dismiss and briefs in support thereof have been filed. By reasserting those matters in her answer brief Boatman attempts to present twice the identical issues for our review. The overruling of her Motion to Dismiss stands, and she has waived those issues for presentation in her answer brief.

I.

The first issue which we must consider concerns the determination of the existence of a duty on the part of Williams in favor of Boatman. The question of duty is presented to this court in two separate but closely related issues: namely, Williams asserts that as a matter of law it owed no duty to Boatman, and secondly that the existence of a duty is purely a question of law to be decided by the court and that reversible error was committed when the jury was instructed to determine if a duty existed. The interrelationship of these two issues in this particular case allows us to discuss the two alleged errors simultaneously.

It is generally stated that the existence of a duty is purely a question of law to be decided by the court. A more precise statement of the law may be found in the case of Walters v. Kellam and Foley (1977), Ind.App., 360 N.E.2d 199, where it is stated:

"The initial question as to all defendants is whether a duty was owed to Walters by each defendant. It is for the court to determine if a legal relationship exists from which a duty of care arises. Miller v. Griesel (1974), 261 Ind. 604, 308 N.E.2d 701; Union Traction Co. v. Berry (1919), 188 Ind. 514, 520, 121 N.E. 655, 124 N.E. 737. If a duty exists as a matter of law, it is generally within the province of the jury to determine whether, under the precise facts of the case, the defendant's conduct measured up to the legal standard of care required by the relationship.

The Indiana Supreme Court in Miller v. Griesel, supra, clarified what questions of law ...