Evansville Am. Legion Home Ass'n v. White

• Decision Date: 08 November 1967
• Docket Number: No. 2,No. 20700,20700,2
• Citation: 141 Ind.App. 574,230 N.E.2d 623
• Parties: EVANSVILLE AMERICAN LEGION HOME ASSOCIATION, Appellant, v. Anna Mary WHITE, Appellee
• Court: Indiana Appellate Court

Page 623

230 N.E.2d 623

141 Ind.App. 574

EVANSVILLE AMERICAN LEGION HOME ASSOCIATION, Appellant, v. Anna Mary WHITE, Appellee.

No. 20700.

Appellate Court of Indiana, Division No. 2.

Nov. 8, 1967.

Bamberger, Foreman, Oswald & Hahn, Evansville, for appellant.

John H. Jennings, Harold M. Wilson, Jr., Evansville, for appellee.

SMITH, Justice.

This is an action brought by Anna Mary White, Appellee, against Evansville American Legion Home Association, Appellant, for damages arising from personal injuries alleged to have been sustained as a result of negligence of the appellant in furnishing appellee with a defective chair in appellant's amusement hall.

This action is of long duration--it was originally filed in the Vanderburgh Probate Court in March, 1954; and was afterwards venued to the Warrick Circuit Court wherein the following proceedings were had.

The original complaint was in one paragraph and was amended by interlineation in order to supply a prayer for damages which had been inadvertently omitted from the complaint.

The amended complaint charged that the defendant, Evansville American Legion Home Association, was a domestic corporation which owned a parcel of ground and an amusement hall located thereon in the City of Evansville, Indiana, in which said defendant sponsored and conducted Bingo games. The amended complaint specifically alleged that on February 26, 1953, the plaintiff, Anna Mary White, purchased a ticket from said defendant to be used for the purpose of playing Bingo; and that upon entering the amusement hall she attempted to seat herself upon a chair furnished by said defendant, which chair immediately collapsed, thereby causing her personal injuries. The amended complaint further alleged that the building and the collapsed chair were both owned by said defendant and were both under the exclusive control of said defendant; and that said cause of action was one which, in the ordinary course of things, would not have arisen except for the negligence of said defendant.

To this amended complaint, as amended by interlineation, said defendant filed its answer.

Upon plaintiff's amended complaint, as amended by interlineation, and defendant's answer thereto, this cause was tried by a jury and a verdict was returned in favor of the plaintiff in the amount of $18,000.00, upon which verdict judgment was rendered and from which an appeal was taken to this court. The cause was thereafter transferred to the Supreme Court of Indiana and the judgment of the trial court was reversed by the Supreme Court with instructions to the court below to grant a new trial.

A new trial was granted and the cause proceeded a second time to trial on plaintiff's amended complaint, as amended by interlineation, and defendant's answer thereto. On the second day of said second trial the plaintiff filed an additional paragraph of complaint. Upon the third day of said trial, and, upon defendant's motion to withdraw the submission of the cause from the jury, the court withdrew submission and discharged the jury, and ordered that the trial of said cause be continued.

Paragraph two of the amended complaint, after repeating the allegations of paragraph one of the amended complaint, in substance alleged that the chair in which the plaintiff attempted to seat herself was and had been in a defective condition in that the curl of the rivet supporting the right legs of the chair had completely chipped and worn away, that the cross-brace supporting the rear legs had become unwelded, and that the rubber tip fitted to the left front leg was missing. It charged the defendant with four specific acts of negligence, namely: (1) in furnishing plaintiff with a defective chair when it knew, or in the exercise of reasonable care should have known, of the condition of the chair; (2) in failing to repair and maintain the chair; (3) in failing to test or inspect the chair; and (4) in failing to warn plaintiff of the defective condition of the chair.

On the third trial, at the close of plaintiff's evidence in chief, the trial court sustained a written motion of the defendant to direct a verdict in favor of the defendant on the issues joined in paragraph one of the amended complaint. The court, at the conclusion of all of the evidence, gave to the jury its written peremptory instruction directing the jury to find for the defendant on paragraph one of the amended complaint, and the jury thereafter returned its verdict in favor of the defendant as directed by the peremptory instruction. Thereupon the defendant moved for judgment on said verdict, and the court rendered judgment thereon. The judgment of the court reads as follows:

'And now the jury having rendered its verdict herein, the defendant moves the court for judgment on said verdict and now the court renders judgment thereon in accordance therewith.

'IT IS THEREFORE CONSIDERED AND ADJUDGED by the court that the plaintiff take nothing by the way of her amended complaint as amended by interlineation and that the defendant recover of and from the plaintiff its costs laid out and expended as to plaintiff's amended complaint as amended by interlineation.'

As to the remaining issues as alleged and set forth in paragraph two of plaintiff's complaint and the answers of the defendant thereto, at the close of plaintiff's evidence in chief, the defendant filed its motion for a directed verdict, which motion the trial court overruled. Thereafter the cause was submitted to the jury on paragraph two of the complaint, and the jury, failing to reach a verdict, was thereupon discharged.

Thereafter a change of venue from the judge was taken and, after qualification of a special judge, this cause was submitted the fourth time for trial. At this fourth trial, before the commencement of the trial and before the impaneling of the jury, the defendant filed its written objections to the impaneling of the jury, the submission of plaintiff's paragraph two of the complaint for trial, and to any further proceedings being had in the trial of this cause. The court overruled said written objections and the cause was thereupon submitted to trial before a jury on the issues presented by paragraph two of the amended complaint and the answers thereto.

The fourth trial resulted in a verdict and judgment for the defendant, Evansville American Legion Home Association; and from which judgment an appeal was taken to this court.

In this appeal the defendant-appellee filed cross-errors. The defendant-appellee assigned as cross-errors the overruling of the defendant's written objections to further proceedings and submission of plaintiff's paragraph two of her complaint to the jury; that the trial court erred in giving to the jury its preliminary instruction number one over the objection of the defendant; that the trial court erred in overruling defendant's motion for a directed verdict at the conclusion of the evidence in chief for the plaintiff; that the trial court erred in refusing to give the jury defendant's peremptory instruction number B at the conclusion of all the evidence; and that the trial court erred in refusing to give to the jury certain instructions tendered by the defendant.

The principal question raised by the cross-errors was whether or not, after an adverse final judgment rendered against the cross-appellee on the merits of paragraph one of the amended complaint, the cross-appellee is entitled to relitigate the same cause of action a second time under a second paragraph of complaint without taking any steps to set aside the adverse judgment on the first paragraph of the complaint.

The specific contentions of the cross-appellant were as follows: The cross-appellant urges that the record clearly demonstrates that paragraph one of the amended complaint for personal injuries, allegedly sustained as a result of a collapsed steel chair on the premises of the cross-appellant, was based on the theory of general negligence pursuant to the doctrine of res ipsa loquitur.

The Supreme Court in disposing of the first appeal in this cause held in substance that the issues of paragraph one of the amended complaint proceeded on the doctrine of res ipsa loquitur, and that the facts alleged and proved did not bring the case under the doctrine of res ipsa loquitur. The court said as follows:

'This is not a case of res ipsa loquitur. The chair was not in the exclusive possession and control of the appellant (Evansville American Legion Home Association). The chair broke at the time it was in the actual control of the appellee (Anna Mary White). The failure and breaking occurred within the open observation of the appellee (White) and view of other witnesses. No complicated machinery was involved which was enclosed, locked up, or the operation of which was excluded from the view of the appellee (White).

'The doctrine of res ipsa loquitur is based to a large extent upon the ground that the evidence or facts concerning the operation of the injuring agency are within the special knowledge and control of the defendant and the injured party does not have free access to such information. Such is not the case here.' Evansville American Legion Home Association v. White (1959), 239 Ind. 138, 154 N.E.2d 109.

The second appeal of this cause was disposed of by the Appellate Court in the case of White v. Evansville American Legion Home Association (1965), Ind.App., 207 N.E.2d 820. The cause then was transferred to the Supreme Court, and Judge Landis in a majority opinion in substance held that the giving of certain instructions was erroneous and constituted reversible error. White v. Evansville American Legion Home Association (1965), Ind., 210 N.E.2d 845. The cause was remanded to the trial court with instructions to sustain the motion for a new trial. The majority opinion of the Supreme Court did not consider the errors raised in the cross-error, and said as follows:

'It is not necessary to discuss the remaining...