Easley v. Williams

• Decision Date: 25 July 1974
• Docket Number: No. 1--374A36,1--374A36
• Citation: 314 N.E.2d 105,161 Ind.App. 24
• Parties: William EASLEY et al., Defendants-Appellants, v. Mary Aletha WILLIAMS, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 105

314 N.E.2d 105

161 Ind.App. 24

William EASLEY et al., Defendants-Appellants, v. Mary Aletha WILLIAMS, Plaintiff-Appellee.

No. 1--374A36.

Court of Appeals of Indiana, First District.

July 25, 1974.

Frank J. Price, Ricos, Wade & Price, Indianapolis, for defendant-appellant William Easley.

James E. Rocap, Jr., Indianapolis, and Joseph Stevenson, Danville, Rocap, Rocap, Reese & Young, Indianapolis, for defendants-appellants Howard Harmless and Betty Ann Harmless d/b/a Maytag Coin Laundry.

Lewis & Hardin, Danville, John T. Hume, III, Smith & Jones, Indianapolis, for plaintiff-appellee.

ON THE APPELLEE'S MOTION TO DISMISS

PER CURIAM.

This cause is pending before the Court on the appellee's Motion to Dismiss the Appeal of Appellants Howard M. Harmless and Betty Ann Harmless, d/b/a Maytag Coin Laundry. Appellee's Motion alleges that said appellants have neither filed a motion to correct errors nor an assignment of errors.

This was a cause of action for damages for personal injuries sustained by plaintiff-appellee, when she was allegedly struck by a struck operated by the defendant-appellant Easley as he was backing out of a driveway to a laundromat owned by the defendants-appellants Harmless. After trial to a jury, a verdict was returned for the defendants and judgment was entered accordingly.

Thereafter the plaintiff-appellee filed her motion to correct errors alleging eight specifications of error and praying that the judgment be set aside and a new trial be granted. The trial court granted the motion to correct errors and its order thereon is as follows:

'The court, being advised, finds that the court erred in the trial of this cause as set out in plaintiff's Motion to Correct Errors under plaintiff's specification number 2 by giving defendant Harmless' tendered instructions number 4, for the reason that the choice of ways doctrine was not applicable in that all the evidence indicated that the plaintiff was on a sidewalk or walkway which was an extension of two designated sidewalks and that she was not required to choose between that way which was a public right-of-way and a more devious route which would have been on the defendant Harmless' property, and that said instruction incorrectly advised the jury upon the law of the case. The court further erred as set out in specification number 6 of plaintiff's motion to correct errors in that the court gave repeated instructions referring to or applying the doctrine of contributory negligence and that these errors cannot be corrected except by the granting to plaintiff a new that said doctrine was so stressed that it tended to overemphasize the duty owed by plaintiff. The court further finds trial.

'Plaintiff's Motion to Correct Errors is, therefore, now sustained and plaintiff is granted a new trial as against the defendants William Easley and Howard Harmless and Betty Ann Harmless, d/b/a Maytag Coin Laundry.'

The defendant-appellant Easley filed a Motion to Correct Errors directed to this ruling. The defendants-appellants Harmless did not. The appellee's Motion alleges that appellants Harmless should have filed such a motion, pursuant to Rule AP. 7.2(A)(1) as interpreted by the cases of State v. DePrez (1973), Ind., 296 N.E.2d 120, and Inkoff v. Inkoff (1974), Ind.App., 306 N.E.2d 132.

In the case of State v. DePrez (1973), Ind., 296 N.E.2d 120, the Supreme Court considered the problem raised when the trial court, in ruling on a motion to correct errors, does something other than merely granting or denying the motion. In DePrez the trial court first entered a simple judgment of dismissal. Thereafter, in ruling on the motion to correct errors, the trial court entered special findings of fact, conclusions of law and judgment, affirming the dismissal. On appeal to the Supreme Court of Indiana, the appellee filed a motion to dismiss alleging, in part, that no motion to correct errors was ever filed addressed to the final judgment of the trial court. Our Supreme Court sustained the appellee's motion, holding that the ruling on the motion to correct errors was a new judgment, to which a subsequent motion to correct errors should have been addressed, because the court made new findings of fact and conclusions of law, even though the judgment of dismissal was the same. Chief Justice Arterburn, speaking for the Court, stated:

'If the trial court had simply either granted or denied that Motion to Correct Errors such step would have constituted the final judgment from which this appeal could have been taken without further ado. Rule AP. 4.

'However, because of the insufficiency of the November 4, 1970 entry in the light of the attack made upon it by the State's Motion to Correct Errors, the trial court entered a completely new entry of February 3, 1971, pursuant to Rule TR 52(B), constituting new findings of fact and a new judgment as authorized further by Rule TR (59)(E). This new entry for the first time set forth the reasons in fact and in law upon which the trial court's dismissal was based. If they were in error, then a Motion to Correct Errors was clearly necessary. Thus, the February 3, 1971 entry became the final judgment, to which a Motion to Correct Errors, referred to in Rule AP. 4, should have been filed.'

This Court had occasion to consider the same problem in ...