Dettman v. Sumner

Decision Date11 February 1985
Docket NumberNo. 4-1083,4-1083
Citation474 N.E.2d 100
PartiesJohn and Norma DETTMAN, Plaintiffs-Appellants, v. LaVergne C. SUMNER, Defendant-Appellee. A 361.
CourtIndiana Appellate Court

Frederick J. Ball, Goldsmith, Goodman, Ball & Van Bokkelen, P.C., Highland, for plaintiffs-appellants.

Jay A. Charon, Theresa L. Springmann, Robin D. Pierce, Spangler, Jennings, Spangler & Dougherty, P.C., Merrillville, for defendant-appellee.

CONOVER, Judge.

Plaintiffs-Appellants John and Norma (Norma) Dettman appeal the judgment of the LaPorte Circuit Court entered pursuant to a jury verdict for defendant-appellee LaVergne C. Sumner (Sumner).

Affirmed.

ISSUES

This appeal presents the following issues:

1. Whether the Dettmans' motion for judgment on the evidence at the close of all the evidence should have been granted so as to withdraw the issue of contributory negligence from the jury's consideration.

2. Whether the court erred in giving, omitting and modifying certain instructions.

3. Whether the court erred in refusing to admit medical bills because no doctor testified they were necessarily incurred for Norma's care and treatment.

4. Whether the trial court erred by striking all of Norma's testimony concerning impairment of her left leg.

FACTS

In October, 1979, Norma was driving her car northbound on Southeastern Avenue approaching its intersection with 173rd Street in Hammond, Indiana, as Sumner approached it on 173rd from the west. The intersection was controlled by a stop and go traffic signal. Norma saw Sumner's auto some distance from the intersection but thought a teenager was driving it and would stop abruptly. The two cars collided in the intersection. Both drivers testified they had the green light upon entering the intersection, but an eyewitness stopped in the southbound left turn lane on the north side of the intersection testified Norma had the green light, and Mrs. Sumner the red, as each entered the intersection. Further, Mrs. Sumner entered a plea of guilty to a traffic ticket issued her by the investigating officer for running a red light, even though she believed at the time of trial she had the green when entering the intersection.

DISCUSSION AND DECISION 1

The Dettmans claim the trial court erred when it overruled their Ind.Rules of Procedure, Trial Rule 50(A) motion for judgment on the evidence filed at the close of all the evidence. Their motion asked the court to withdraw the issue of contributory negligence from the jury's consideration because the evidence presented by Sumner thereon was insufficient. 2

I. T.R. 50(A) Standard of Review

Sumner raised the issue of contributory negligence in her pre-trial order and, thus, had the burden of proving that issue at trial. 3 The trial court overruled the Dettmans' motion for judgment and permitted the contributory negligence issue to go to the jury.

On appeal from a negative judgment where the issue of contributory negligence is raised, we review not only as to whether the verdict was contrary to law, but also as to whether there was sufficient evidence to sustain the verdict as to the contributory negligence issue. Brock v. Walton, (1983) Ind.App., 456 N.E.2d 1087, 1091. When reviewing a trial court's action on a T.R. 50(A) motion for judgment, we must consider only the evidence and reasonable inferences most favorable to the non-moving party. Jones v. Gleim, (1984) Ind., 468 N.E.2d 205, 206-07.

II. Sufficiency of the Evidence

The standards by which a trial court determines whether T.R. 50(A) motions for judgment should be granted have been in a process of evolution since 1967. That year our supreme court said

It is only where there is a total absence of evidence or legitimate inferences in favor of plaintiff upon the issues, or where the evidence is without conflict and is susceptible of but one inference and that inference in favor of the defendant, that the court may give a peremptory instruction ... (Emphasis supplied.)

Hendrix v. Harbelis, (1967) 248 Ind. 619, 623, 230 N.E.2d 315, 318, quoted in Mamula v. Ford Motor Co., (1971) 150 Ind.App. 179, 181, 275 N.E.2d 849, 851. The Hendrix statement was later modified in 1977 when our supreme court said

If there is relevant evidence which supports the verdict, then the motion may not properly be granted because evidence which supports the verdict is sufficient evidence, and the final determination is left to the fact finder. This is not the scintilla rule. A scintilla is by definition barely perceptible and would not support a reasonable inference. Judicial economy is served by this view in that the trial court withdraws the case from the jury or enters a judgment notwithstanding the verdict whenever an appellate court would be compelled to find the evidence does not support a judgment.... (Citations omitted and emphasis supplied.)

Huff v. Traveler's Indemnity Co., (1977) 266 Ind. 414, 416, 363 N.E.2d 985, 990. The next year the supreme court seemed to re-affirm the Hendrix rule, it saying

... [A] court should withdraw the issues from the jury and enter judgment on the evidence in favor of the defendants when, at the close of the plaintiff's evidence, there is a total absence of evidence or reasonable inferences on at least one essential element of the plaintiff's case. Such a judgment is proper when the evidence is without conflict and is susceptible to but one inference and that inference is in favor of the defendants. (Citations omitted.)

Furthermore, plaintiff's burden requires that she present evidence of probative value based on facts, or inferences to be drawn from facts. Her burden may not be carried with evidence based merely upon supposition or speculation. (Emphasis supplied.)

Palace Bar, Inc. v. Fearnot, (1978) 269 Ind. 405, 407, 381 N.E.2d 858, 861. A spate of court of appeals cases seeking to apply those standards to various fact situations have caused some confusion in this area. McKeown v. Calusa, (1977) 172 Ind.App. 1, 359 N.E.2d 550. However, our supreme court's recent case of American Optical Co. v. Weidenhamer, (1983) Ind., 457 N.E.2d 181, cited by the Dettmans in support of their position, seemed to clear up the confusion. 4 The American rule announced a two-step process to be followed by trial courts when determining what action should be taken on T.R. 50(A) motions for judgment, namely, a quantitative followed by a qualitative analysis, if necessary, of the direct and circumstantial evidence then available. Although American's discussion was triggered by the defendants' T.R. 50(A) motions for judgment filed at the close of the plaintiff's case, we believe the rule there announced applies with equal force when T.R. 50(A) motions are filed by any party, plaintiff or defendant.

We discern the American rule to be where an opposing party during trial 5 files a T.R. 50(A) motion for judgment at the conclusion of the evidence of any party having the burden of proof on an issue, 6 the trial court is to determine whether or not it can be said, with reason, the evidence proffered by the burdened party is sufficient to support that party's contentions. Such determination is to be made by a two-step analysis of all the direct and circumstantial evidence then available. First, it must determine whether

(a) quantitatively, reasonable evidence supporting the burdened party's allegations is absent, that is, none at all exists. If so, the motion is to be granted. If such evidence is present, however, the court must then determine whether

(b) qualitatively, a reasonable inference the burdened party's allegations are true 7 logically may be drawn from such evidence.

Qualitative failure in this sense, occurs if the trial court reasonably can say, either

(1) the witness(es) presenting such evidence is (are) not credible, or

(2) the inference the burdened party's allegations are true may not be drawn without undue speculation. American, 457 N.E.2d at 183-84.

Under our standard of review in T.R. 50(A) motion for judgment cases, we consider only the evidence and reasonable inferences most favorable to the non-moving party. Jones, 468 N.E.2d at 206; American, 457 N.E.2d at 184-85. The question is whether for T.R. 50(A) purposes there was American/Huff -required reasonable evidence or inferences supporting Sumner's claim Norma was contributorily negligent.

We apply the American two-step analysis in this case as follows:

First, there was quantitative evidence supporting Sumner's contention because she testified she had the green light. Even though Norma's testimony she had the green light created an evidentiary conflict, Sumner's testimony fulfills the quantitative requirement. 8 Thus, the trial court was required to go to step two, and make the American/Huff -required qualitative analysis.

The qualitative analysis itself requires a two-step analysis. In the first instance the question is whether the witness presenting such evidence 9 was credible?

At first blush, American's requirement that trial court judges weigh the credibility of witnesses as part of its T.R. 50(A) qualitative analysis seems to overrule longstanding precedent that weighing the evidence and credibility of witnesses is within the province of the jury. Health and Hospital Corp. of Marion County v. Gaither, (1979) 272 Ind. 251, 397 N.E.2d 589; Johnson v. Banker, (1923) 193 Ind. 16, 138 N.E. 505; Southern Rwy. Co. v. Limback, (1908) 172 Ind. 89, 85 N.E. 354; Eppert v. Hall, (1892) 133 Ind. 417, 31 N.E. 74, reh. denied 133 Ind. 417, 32 N.E. 713; VanVacter v. McKillip, (1845) 7 Blackf. 578; Decamp v. Stevens, (1835) 4 Blackf. 24; Ferdinand Furniture Co., Inc. v. Anderson, (1980) Ind.App., 399 N.E.2d 799; Keck v. Kerbs, (1979) 182 Ind.App. 530, 395 N.E.2d 845; State Highway Commission v. Jones, (1977) 173 Ind.App. 243, 363 N.E.2d 1018; Dudley Sports Co. v. Schmitt, (1972) 151 Ind.App. 217, 279 N.E.2d 266; Barbee v. McKay, (1968) 143 Ind.App. 205, 238 N.E.2d 690; Deming Hotel Co. v. Prox, (1968) 142...

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