Dominguez v. Gallmeyer
| Decision Date | 16 April 1980 |
| Docket Number | No. 3-479A101,3-479A101 |
| Citation | 402 N.E.2d 1295 |
| Parties | Ophelia DOMINGUEZ, John R. Dominguez, Appellants (Plaintiffs Below), v. Arthur GALLMEYER, Appellee (Defendant Below). |
| Court | Indiana Appellate Court |
Jerrald A. Crowell, Bowman & Crowell, Ft. Wayne, for appellants.
William E. Borror, Hunt, Suedhoff, Borror, Eilbacher & Lee, Ft. Wayne, for appellee.
John R. Dominguez and his wife, Ophelia, filed a negligence action against Arthur Gallmeyer. They alleged that Gallmeyer's negligent driving of his automobile resulted in injury to Mrs. Dominguez and the loss of her services to Dominguez. The jury returned a verdict for Gallmeyer and against the Dominguezes.
On appeal, the Dominguezes raise basically three issues for our consideration:
(1) Was the judgment of the trial court contrary to law?
(2) Did the trial court err when it allowed an amendment of the pre-trial order?
(3) Did the trial court err in giving and in failing to give certain instructions to the jury?
We affirm.
The facts relevant to our disposition of the case indicate that at approximately 6:45 a. m., March 25, 1977, Gallmeyer was driving north on Wells Street in Fort Wayne, Indiana. In accordance with a stop sign he pulled up and stopped about a foot and a half behind the Dominguez automobile at a Wells Street intersection. The Dominguez car was being driven, at Mrs. Dominguez's request, by her son. He was directed to take his mother to work and then pick up his father who was to be released from the hospital.
The automobiles remained stationary for a few seconds and then Dominguez began to move forward. As Gallmeyer momentarily glanced to the right to check the traffic flow, he took his foot off of the car's brake. His car, equipped with an automatic transmission, crept forward. When he returned his gaze to the front of the automobile, he saw that Dominguez had come to a stop for the second time. Gallmeyer was unable to stop his car in time to avoid striking the rear of the car in which Mrs. Dominguez was riding as a passenger.
After the collision, both Gallmeyer and Mrs. Dominguez got out of their cars and "exchanged information." They decided to dispense with reporting the accident to the police. Both then left the scene of the collision; Mrs. Dominguez went on to work and Gallmeyer went to have breakfast at a nearby restaurant. Several hours later, Mrs. Dominguez began to complain of neck and back pains.
In framing this first issue on appeal, the Dominguezes urge us to find that "the judgment rendered upon the verdict is against the clear weight of the evidence adduced at trial." They are appealing from a negative judgment and it may only be reversed if it is contrary to law. Ernst v. Sparacino (1978), Ind.App., 380 N.E.2d 1271. When a judgment is attacked as being contrary to law, we may neither consider the credibility of the witnesses nor weigh the evidence. We may look only to that evidence most favorable to the judgment and all the reasonable inferences drawn therefrom. Reynolds v. Meehan (1978), Ind.App., 375 N.E.2d 1119. It is only when this evidence is "without conflict and leads to but one conclusion and the fact-finder reached a contrary conclusion will the decision be disturbed as contrary to law." Ernst, supra, at 1273.
In the argument section of their brief, the Dominguezes painstakingly recap the testimony of most of the witnesses in the case. Unfortunately, their discussion of this issue ends with these recitations. The Dominguezes fail to provide us with any pertinent legal theory or cogent argument related to the question at hand. They point us to only one case, which proves to be inappropriate for the proposition for which it was cited. Failure to provide this Court with citations of authority germane to an issue or a pertinent argument will result in a waiver of that issue. United Farm Bureau Family Life Ins. v. Fultz (1978), Ind.App., 375 N.E.2d 601. We decline the Dominguezes' invitation to ponder their bald assertions of error and to, in the process, reweigh the evidence. This is not our function.
The Dominguezes argue that the trial court erred in allowing Gallmeyer to amend the pre-trial order by including the defense of agency as a possible source of imputation of contributory negligence. They argue that this inclusion of agency was wrongful as no theory of agency had been pled or included in the pre-trial order. The issue of joint enterprise as it relates to the imputation of contributory negligence was specifically raised in the pleadings. As per Ind.Rules of Procedure, Trial Rule 16(J), the pleadings were deemed merged into the pre-trial order which delineated the issues in the case and supplanted the allegations raised in the pleadings. All subsequent pleadings were then controlled by this pre-trial order. See Colonial Mortgage Company of Indiana, Inc. v. Windmiller (1978), Ind.App., 376 N.E.2d 529.
The pre-trial order in the case at hand sets forth the following contested issues of fact:
"The contested issues of fact are the negligence, if any, of defendant, the contributory negligence, if any, of the driver of plaintiff Ophelia Dominguez's vehicle, whether this contributory negligence, if any, can be imputed to plaintiff, Ophelia Dominguez under the facts and circumstances then and there existing, whether the negligence, if any, of the defendant was a legal proximate cause of any alleged injury of plaintiff Ophelia Dominguez and the nature and extent of plaintiff's injuries and damages, if any, allegedly proximately resulting from the incident of March 25, 1977."
Obviously, the Dominguezes were aware that the imputation of contributory negligence was one of the contested issues of fact. To argue that the pre-trial order restricted the issues solely to a "joint enterprise" theory is incorrect. The order clearly states this issue to be "whether this contributory negligence, if any, can be imputed to plaintiff. . . ." Contributory negligence may be imputed by an agency theory as well as by a joint enterprise theory. See Keck v. Pozorski (1963), 135 Ind.App. 192, 191 N.E.2d 325, 330.
The evidence presented at trial revealed that the Dominguez automobile was owned by Mrs. Dominguez and was being driven, at her specific request, by her son. He had been directed, by his mother, to take her to work, and then pick up his father who was due to be released from the hospital. He testified that, without her specific instruction, he would not have taken her to work on the day of the collision. This evidence was introduced at trial without objection. The question of the imputation of contributory negligence through an agency relationship was well within the scope of the pre-trial order. The order merely set forth this issue in general terms. It did not limit the jury's consideration to only one theory of imputation of contributory negligence.
Even if the pre-trial order could be construed as having limited the contested issue to a consideration of solely a joint enterprise theory, TR. 15(B) permits the amending of this order to conform to the evidence. The Court in Colonial Mortgage, supra, dealt with the superficial conflict between TR. 16(J) and TR. 15(B). In speaking for the Court, Presiding Judge Garrard explained:
The trial court has the discretion to permit or deny modification of the pre-trial order. On appeal, we are limited to a determination of whether the court abused its discretion. Colonial Mortgage, supra. As was noted earlier, evidence raising the issue of an agency relationship between Mrs. Dominguez and her son was presented at trial. Such evidence was not only introduced without objection, but Mrs. Dominguez and her son both testified as to her specifically requesting him to perform these duties. We fail to see that the trial court abused its discretion or that the Dominguezes were prejudiced by this alleged amendment as the pre-trial order clearly sets forth the issue of imputation of contributory negligence in general, rather than specific terms.
The Dominguezes urge that the trial court erred when it gave Instruction # 14 and when it refused to give one of their tendered instructions. The instructions in question are as follows:
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