Eves v. Ford Motor Co.

• Decision Date: 03 May 1972
• Docket Number: 711A138,Nos. 771A122,s. 771A122
• Citation: 152 Ind.App. 34,281 N.E.2d 826
• Parties: Charles EVES and Fern Eves, Plaintiffs-Appellants, v. FORD MOTOR CO. and National Cooperatives, Inc., Defendants-Appellees.
• Court: Indiana Appellate Court

Page 826

281 N.E.2d 826

152 Ind.App. 34

Charles EVES and Fern Eves, Plaintiffs-Appellants, v. FORD MOTOR CO. and National Cooperatives, Inc., Defendants-Appellees.

Nos. 771A122, 711A138.

Court of Appeals of Indiana, First District.

May 3, 1972.

Rehearing Denied June 1, 1972.

Ronald R. Ewers, Bates & Ewers, Evansville, for plaintiffs-appellants.

Fred P. Bamberger, Bamberger, Foreman, Oswald & Hahn, Evansville, for Ford Motor Co.

Gaylon Clark, McCray, Clark, Statham & McCray, Evansville, for National Cooperatives, Inc.

LOWDERMILK, Judge.

These actions come to us as two separate cases, but inasmuch as they grew out of the same accident and the facts pertaining to each are the same except as to the ownership of the truck and the driver at the time of the accident, we have, therefore, consolidated these causes and shall write upon them as one.

Charles Eves and Fern Eves are husband and wife and were, on the 7th day of October, 1968, occupants in a Ford truck pulling a house trailer, when the right front tire of the truck is alleged to have blown out, causing the truck and trailer to leave the road and in doing so the body of the truck, while in the process of the truck's turning over, became disengaged from the truck, with the occupants remaining in the body, as a result of which they sustained personal injuries and damages to the property of the plaintiffs-appellants, consisting of the truck and trailer.

Suits were filed in the United States District Court for the Southern District of Indiana on or about August 28, 1969, and in which suits an amended complaint was filed on May 8, 1970. On April 22, 1970, pursuant to pre-trial entry in the Federal Court, both plaintiffs and defendants stipulated that the court had jurisdiction over the subject matters and the parties involved in the action.

Subsequently, the causes were tried and at the close of plaintiffs' evidence in each case the court sustained the separate motions for directed verdict of each defendant on the ground that the court had no jurisdiction for the reason that the evidence in each case establishes less than the jurisdictional requirement under the law.

Thereafter, each of the plaintiffs filed their complaints for alleged damages as a result of the same accident, occurring on October 7, 1968, and for the same alleged reasons, as consolidated actions on March 1, 1971 in the Vanderburgh Circuit Court against the defendants-appellees herein.

In the State court defendant-appellee Ford filed answer to each complaint asserting five separate defenses and separate motions for summary judgment, with support thereon. Defendant-appellee National Cooperatives, Inc. filed similar answers and motions for summary judgment in each case in the State court.

On April 23, 1971, the Vanderburgh Circuit Court entered its judgment in favor of the defendants in each case.

Plaintiffs-appellants filed in their respective cases the same motion to correct errors, which is in the words and figures as follows, to-wit:

'1. The Judgment is not supported by sufficient evidence upon all necessary elments of defense.

'2. The Judgment is contrary to the evidence in the following respects:

'(a) There is no proof that the Statute of Limitations ran upon the Plaintiff's claim, but on the contrary the evidence clearly indicates that the Statute of Limitations was tolled by the filing of Cause No. EV 69--C--69 in the United States District Court, Southern District of Indiana, Evansville Division entitled Charles Eves vs. Ford Motor Company and National Cooperatives, Inc. on or about February 25, 1970. (sic--actually August 28, 1969.)

'(b) This cause of action is still pending in the United States Court of Appeals for the Seventh Circuit.

'3. The judgment is contrary to law upon the following grounds:

'(a) The entry of October 20, 1970 in the United States District Court, Southern District of Indiana in Cause No. EV 69--C--69 Entitled Charles Eves vs. Ford Motor Company and National Cooperatives, Inc. unequivocally holds that the Court was without jurisdiction, and in doing so, the lawsuit resulted in a nullity or no contest by operation of law. It was error for this Court to hold that the entry of October 20, 1970 in the United States District Court was res judicata and bars Plaintiff cause of action before this court.

'(b) On February 25, 1970 (August 28, 1969) Plaintiff timely filed his lawsuit within the Statute of Limitations in the United States District Court, Southern District of Indiana. The Defendants' admitted jurisdiction and the question of jurisdiction was not placed in issue until October 20, 1970, at which time, the Court itself made jurisdiction an issue. The Plaintiff was properly in the Federal Court without any question as to jurisdiction until the ruling of October 20, 1970. The judgment of the Court is erroneous in holding that the Statute of Limitations bars Plaintiff cause of action.

'4. The judgment is the result of abusive discretion. Plaintiff's claim was properly presented before the United States District Court with jurisdiction admitted as set forth in the Defendants' answers attached hereto and marked Exhibits 'A' and 'B' and the pre trial entry of April 22, 1970 attached hereto and marked Exhibit 'C'. The Defendants' admissions and stipulations as set forth in these exhibits clearly shows that no issue as to jurisdiction in the United States District Court existed until October 20, 1970, at which time the defendants made an about face and challenged the jurisdiction of the court and was sustained. The defendants waited until after the Statute of Limitations would have normally run before challenging jurisdiction. The court abused its discretion in holding that the Statute of Limitations is a bar to Plaintiff's claim presented in this court. Such a holding allows the defendants to advantage themselves through their own inconsistency.'

(The memorandum in support of the motion to correct errors is omitted from this opinion.)

Defendants-appellees contend (1) that the statute of limitations had run on plaintiffs' claim; (2) the judgment of October 20, 1970, in the United States District Court was res judicata.

Plaintiffs contend that the judgment of the Federal Court can in no way act as res judicata as to plaintiffs' claim on the grounds that the Federal Court ruled it had no jurisdiction and if there is no jurisdiction the cause goes as a nullity by operation of law.

Plaintiffs-appellants further contend that the statute of limitations was tolled during the period of time their causes were before the United States District Court, with jurisdiction stipulated in the pre-trial and admitted in the answer to plaintiffs' complaints.

Defendants-appellees contend that plaintiffs-appellants' briefs do not comply with Rule AP. 8.3(A)(7), which pertains to the argument portion of their briefs. We are of the opinion that although the argument section of the briefs is not a model, that under the liberal interpretation of the Rules plaintiffs-appellants have discussed their points and cited authorities and that defendants-appellees' contention that the Rules have not been complied with is untenable.

We must agree with defendants-appellees that the documents in the Vanderburgh Circuit Court demonstrated that each plaintiff's claim arose on October 7, 1968, and almost identical complaints were filed in the Vanderburgh Circuit Court on March 1, 1971.

We further agree that the judgments of the Vanderburgh Circuit Court were entered on two separate grounds, (1) first, each plaintiff's cause of action was held to be barred by the two year statute of limitations, and (2) the judgment of the United States District Court for the Southern District of Indiana is res judicata of the claims presented by plaintiffs' complaints and constitutes a bar to the further prosecution of such claims against such defendants.

Plaintiffs-appellants did not file authority to sustain their contention that the statute of limitations was tolled during all the time their causes of action pended in the United States District Court. It is not necessary that we answer that contention as we have an applicable statute which covers this citation, namely, Ind.Stat.Ann. § 2--608 (Burns' 1967 Replacement); IC 1971, 34--1--2--8:

'New action after failure--Limitation.--If, after the commencement of an action, the plaintiff fails therein, from any cause except negligence in the prosecution, or the action abate, or be defeated by the death of a party, or be defeated arrested or reversed on appeal, a new action may be brought within five (5) years after such determination, and be deemed a continuation of the first, for the purposes herein contemplated.'

The latest case we find in Indiana to guide us on this contention is the case of Ware v. Waterman (1969), Ind.App., 253 N.E.2d 708. In Ware, a summary judgment was entered by the trial court in favor of the defendant-appellee. Plaintiff-appellant assigned as error:

'* * *

'2. The Court erred in failing to give its reasons for sustaining Appellee's Notion For Summary Judgment.'

The crux of the appeal in Ware in the application of the statute of limitations.

In the case at bar we have heretofore set out the date of the accident and the divers dates of different pleadings and the fact that the suit brought in the Vanderburgh Circuit Court was brought more than two years after the date of the accident and damages allegedly sustained by the plaintiffs-appellants.

We have gone to this trouble because this court lacks precedent or rules to write memorandum opinions, but we shall not unnecessarily burden this opinion with the facts of the Ware case, as the same can be readily ascertained from a reading of the case, except such facts as we deem necessary to make this opinion complete.

In the case at bar the question is whether the Journey's Account statute as heretofore set out is applicable so as to render erroneous a decision of the trial...