Flynn v. Reberger

• Decision Date: 15 June 1971
• Docket Number: No. 1170A195,No. 1,1170A195,1
• Citation: 270 N.E.2d 331,149 Ind.App. 65
• Parties: Phyllis FLYNN, Plaintiff-Appellant, v. Richard L. REBERGER, Defendant-Appellee. Donald C. FLYNN, Plaintiff-Appellant, v. Richard L. REBERGER, Defendant-Appellee
• Court: Indiana Appellate Court

Page 331

270 N.E.2d 331

149 Ind.App. 65

Phyllis FLYNN, Plaintiff-Appellant, v. Richard L. REBERGER, Defendant-Appellee.

Donald C. FLYNN, Plaintiff-Appellant, v. Richard L. REBERGER, Defendant-Appellee.

No. 1170A195.

Appellate Court of Indiana, Division No. 1.

June 15, 1971.

William D. Hall, Indianapolis, for plaintiffs-appellants.

Roy A. Pope, Albert W. Ewbank, Indianapolis, for defendant-appellee.

SULLIVAN, Presiding Justice.

In an intersectional right-angle automobile collision, plaintiff Phyllis Flynn sustained personal injury. A consolidated trial to the court without a jury was had upon her complaint for damages and that of her husband for medical expenses and loss of services. The two complaints were virtually identical, the first paragraph of which alleged negligence on the part of the defendant and the second of which alleged facts which if true would indicate the applicability of the doctrine of last clear chance. The trial court's finding and judgment was for defendant-appellee upon both paragraphs of both complaints. Appellants assign as error that the decision was contrary to law and contrary to the evidence, which specifications are argued together.

An additional error is asserted by way of the affidavit of plaintiff-appellants' counsel which states that during midtrial a conference took place in chambers among both counsel and the court, at which time the court indicated that it would permit neither certain testimony nor photographic evidence relative to post-accident experiments or accident reconstruction.

The latter specification presents no cause for reversal. One of the two photographic exhibits in question was in fact admitted into evidence. The other was never offered. Further, the testimony of the various witnesses together with the various photographs in evidence clearly and adequately portrayed the 'lay of the land' at the intersection involved. The court was fully apprised of the physical facts concerning the condition of the intersection at the time of the accident.

With reference to the proffered testimony of plaintiffs' accident reconstruction expert, counsel's affidavit does not set forth, other than in a general way, what evidence was excluded. Counsel does not set forth any specific question or questions to which objections were sustained. Nor was an offer to prove made as required by Trial Rule 43(C). The general colloquy between plaintiffs' counsel and the court as to the purpose of the offer of the various photographic exhibits heretofore discussed was not a sufficient offer. Lipner v. Lipner (1971) Ind., 267 N.E.2d 393; 3 Harvey, Indiana Practice, Sec. 43.3, page 274.

The main thrust of appellants' argument, however, relates to the sufficiency of the evidence and the 'contrary to law' assertions. Of course, plaintiffs having suffered a negative decision and judgment cannot successfully advocate that the evidence was insufficient to sustain such decision. Mitchell v. Lawson (1969) Ind.App., 250 N.E.2d 259.

In essence, the evidentiary controversy concerns whether plaintiff Phyllis Flynn stopped at the preferential road upon which defendant was traveling and whether plaintiff saw or should have seen defendant's automobile approaching even though the latter may have been operated negligently at a high rate of speed. Without making unnecessary recitation of all the evidence, suffice it to say that the evidence was in conflict concerning defendant's speed and the point at which defendant's automobile was located at the time plaintiff entered and proceeded across the intersection.

Appellants make a bifurcated presentation in this regard. They first contend that by denying defendant's Motion for Finding and Judgment at the Conclusion of All the Evidence the trial court necessarily found that Mrs. Flynn was not chargeable with contributory negligence. Such contention is speculative at best.

It must be pointed out that the Rules of Civil Procedure do not contemplate motions such as presented by defendant below except when the cause is heard before a jury. As Professor Harvey states in his treatise concerning the new Rules:

'A Motion under (Trial Rule 50) would be inappropriate in an action tried by the court if for no other reason than by it counsel would be asking the court to direct itself to do a certain thing.' 3 Harvey, Indiana Practice, Sec. 50.2, pp. 369--370. ¹

Defendant's Motion herein can in no way be considered as a request for Findings pursuant to Trial Rule 52. Said Motion was presented as follows and was clearly intended as the equivalent of a Motion for Directed Verdict:

'MR. POPE: Will you let record show, please, the defendant at the close of all of the evidence of the plaintiffs and defendant and each party having rested, the defendant now renews his motion that there be a finding for the defendant and against the plaintiff on her complaint for the reason that the evidence discloses clearly that plaintiff was guilty of contributory negligence which was the proximate result and which proximately contributed to her injuries and damages as testified to.'

Quite a different question might have been presented by the overruling of a Motion for Dismissal at the conclusion of plaintiffs' evidence pursuant to Trial Rule 41(B). Defendant made such a motion in the cause below. It was taken under advisement, however, and never ruled upon by the court; nor do appellants contend that the failure of the court to rule thereon had any effect upon the validity of the decision and judgment.

It is much more likely that the court below recognized that defendant's Motion at the conclusion of all the evidence was a procedural nullity than that it considered such Motion and overruled it upon the merits. The court in its ruling did not state its reasoning. It is therefore improper for appellants to speculate concerning the subjective state of mind of the trial court at that point with reference to the existence or nonexistence of contributory negligence....