Geyer v. City of Logansport

• Decision Date: 06 May 1976
• Docket Number: No. 2--374A70,2--374A70
• Citation: 346 N.E.2d 634
• Parties: Forrest A. GEYER, Appellant, v. CITY OF LOGANSPORT et al., Appellees.
• Court: Indiana Appellate Court

Page 634

346 N.E.2d 634

Forrest A. GEYER, Appellant, v. CITY OF LOGANSPORT et al., Appellees.

No. 2--374A70.

Court of Appeals of Indiana, Second District.

May 6, 1976.

Opinion Superseded, see 370 N.E.2d 333.

William E. Beck, II, C. Michael Cord, Bayliff, Harrigan, Cord & Maugans, Kokomo, for appellant.

Tom F. Hirschauer, Frank E. Tolbert, Miller, Tolbert, Hirschauer & Wildman, Logansport, for appellees.

SULLIVAN, Judge.

Plaintiff-appellant Forrest Geyer (Geyer) in this personal injury action appeals the dismissal of the City of Logansport (City) as a defendant and the granting of a motion for judgment on the evidence in favor of defendant James Jackson (Jackson).

On May 29, 1970, a bull escaped from the Stoney Pike Sale Barn, just south of Logansport. The bull was at large in Logansport for several hours, while members of the Logansport Police Department sought to capture it. During the chase, a decision was made to shoot the bull. Jackson, a lieutenant on the Logansport police force, obtained a high-powered Winchester rifle from police headquarters, found the bull, and fired two shots at it. One of the shots hit Geyer in the stomach causing serious injuries. Geyer subsequently filed suit against City, Jackson and Lester Murtha (Murtha), owner of the sale barn from which the bull escaped.

I. THE TRIAL COURT ERRED IN GRANTING JACKSON'S MOTION FOR JUDGMENT ON THE EVIDENCE

At the close of presentation of all the evidence at trial, Jackson moved for judgment on the evidence pursuant to Indiana Rules of Procedure TR. 50. The trial court sustained three of his five offered grounds for granting the motion, namely:

1. Geyer had failed to prove by a preponderance of the evidence that Jackson was negligent;

2. Ind.Ann.Stat. 18--2--2--1 (Burns Code Ed. 1974), which requires that a city be given notice within 60 days of an accident as a prerequisite to bringing a negligence action against the city, applied to Jackson since he was an employee of the city, and Geyer had failed to file timely notice;

3. A loan agreement executed between Geyer and Murtha was in actuality a full and complete release of Murtha, and hence all joint tort-feasors were released.

None of these constitutes proper grounds for a judgment on the evidence here, and the cause must be remanded for a new trial.

A. THE TRIAL COURT USED AN IMPROPER STANDARD FOR GRANTING A JUDGMENT ON THE EVIDENCE

TR. 50(A) provides that '(w)here all or some of the issues in a case tried before a jury . . . are not supported by sufficient evidence . . . the court shall withdraw such issues from the jury and enter judgment thereon . . ..' In interpreting this rule, Indiana courts have held that a TR. 50 motion should be granted only if there is no evidence or reasonable inference to be drawn from the evidence in favor of the party opposing the motion on at least one essential element. The evidence must be without conflict and susceptible of only one inference, that being in favor of the moving party. The trial court must draw all rational inferences in favor of the party opposing the motion, and it may not substitute its judgment for that of the jury on questions of fact or grant the motion because the evidence preponderates in favor of the moving party. Miller v. Griesel (1974), Ind., 308 N.E.2d 701; Mamula v. Ford Motor Co. (2d Dist. 1971), 150 Ind.App. 179, 275 N.E.2d 849; Hendrickson & Sons Motor Co. v. Osha (1st Dist.1975), Ind.App., 331 N.E.2d 743, 757; Adkins v. Elvard (1st Dist.1973), Ind.App., 294 N.E.2d 160, 162. Appellate review is subject to the same standards, so this court must determine whether there was any evidence justifying submission of the case to the jury.

Reviewing the evidence to see if it is without conflict and susceptible of only one inference, that being that Jackson was not negligent, we find that it does not measure up to the stringent standard imposed by present Indiana law.

The bull escaped on a Saturday morning and was chased by members of the Logansport police department on foot and in cars and motorcycles through the streets and yards of Logansport. One officer who participated in the chase described it as 'like a circus day'. Dispatches went out over the police radios instructing that the bull be destroyed if necessary, but the source of those dispatches is disputed. The dispatcher identified Murtha as the source of the orders, but Murtha denied giving any such instructions.

Jackson, an experienced hunter and excellent marksman, picked up a high-powered 351 Winchester rifle at the police station, passing up a shotgun because he could not find ammunition for it. He found the bull at the intersection of Kloehne Street and Bartlett Avenue, near Geyer's home, where many people were gathered watching the chase. All the witnesses at trial agreed that Jackson fired two shots in rapid succession. One shot hit the bull in the horn and apparently ricocheted, and the other hit the bull in the neck but the bull was undaunted. The chase continued, ending eventually when the Sheriff got a horse and quietly led the bull out of town. Geyer, exiting from his house to walk downtown, was hit by one of the two shots fired by Jackson. None of the witnesses to the shooting who testified at trial could say which shot hit Geyer, although the Cass County Sheriff concluded from statements of two women who witnessed the incident that Geyer was hit by the first shot. Jackson said he saw Geyer between the two shots but did not know that he had been hit. Geyer only heard one shot. Geyer's and Jackson's versions of the incident are also in conflict. Geyer testified that no one gestured or told him to get out of the way or to get back. He saw Jackson raise his arms to fire, but saw no arm wave. He never turned around and walked back toward the house, even though he knew Jackson was going to shoot at the bull, for he was at a 90 angle to the line of fire and did not think there was any danger. Jackson, on the other hand, testified that he saw Geyer; that he yelled and waved his arms; and that Geyer looked up, stopped, and turned. He waved again because he did not think Geyer had gone back for enough, then fired, believing there was no risk to Geyer since he was then behind his home.

The County Sheriff testified that the hard-nosed shells used in the rifle have more of a ricocheting effect than soft-nosed shells, but Jackson said he was not aware of this difference.

The evidence is certainly not without conflict, as Jackson asserts, that he gave warning to Geyer. Jackson argues further that the evidence is uncontradicted that Geyer was hit by the first bullet ricocheting from the bull's horn. This, he says, was an unforeseeable freak accident, and that he therefore can not be held liable for Geyer's injuries.

Indiana law has long recognized that foreseeability is an element in the determination of whether a duty exists. Southern Railway Co. v. Harpe (1944), 223 Ind. 124, 58 N.E.2d 346; Galbreath v. Engineering Construction Corp. (1971), 149 Ind.App. 347, 273 N.E.2d 121. A person must foresee and guard against what usually or is likely to happen, but need not necessarily anticipate that which is unlikely, or only remotely probable. Stayton v. Funkhouser (1970), 148 Ind.App. 75, 263 N.E.2d 764. The specific manner in which injury occurs of the extent of the harm need not be foreseen, however, for a person to held liable for his actions. If it can be reasonably anticipated that conduct will cause injury in substantially the manner in which it occurs, then the harm is considered to be the legal consequence of the actor's negligence. Tabor v. Continental Baking Company (1941), 110 Ind.App. 633, 38 N.E.2d 257; Daugherty v. Hunt (1941), 110 Ind.App. 264, 38 N.E.2d 250.

As support for his contention that he could not possibly foresee that Geyer would be hit by the bullets, Jackson points to testimony by Geyer that he 'never figured it would ricochet like that,' and to his own testimony that he did not see any possible way that Geyer could be hit.

Determination of what is reasonably foreseeable is not based on the subjective perceptions of the actors involved at the time, but rather is judged by the standard of the reasonably prudent person, who will make reasonable use of his faculties to discover dangers, and order his actions according to what appears likely in the known course of things. Parr v. McDade (2d Dist. 1974), Ind.App., 314 N.E.2d 768, 773; Stayton v. Funkhouser, supra. It was for the jury to decide whether Jackson acted reasonably under all the circumstances.

B. NOTICE REQUIREMENTS OF IND.ANN.STAT. 18--2--2--1 DO NOT APPLY TO INDIVIDUAL EMPLOYEES OF OF A CITY

Prior to 1974, before an action for negligence could be maintained against a municipal corporation, written notice had to be filed with specified municipal officers within 60 days of the occurrence giving rise to the claim. Indiana Ann.Stat. 18--2--2--1. ¹ The trial court held that since this statutory notice was not filed with the City by Geyer within the 60-day period, the case should be dismissed as to Jackson, since he was acting as an agent or employee of the City.

We need not decide the merits of this determination (but see England v. City of Richmond (7th Cir. 1969), 419 F.2d 1156) since we hold infra, Section II, that City had notice sufficient to satisfy the purpose of 18--2--2--1.

We note, however, that the Supreme Court has recently re-affirmed the principle that filing of the requisite notice is a procedural step necessary to bringing an action. If such notice has not been given, the city-defendant may resort to a TR. 12(B) defense to the action which must be stated in its pleadings in short and plain terms. Thompson v. City of Aurora (1975), Ind., 325 N.E.2d 839. Since Jackson made no specific pleading denial of filing of notice, the directed verdict on this ground was in error, regardless of the merits of the trial court's determination that Jackson may benefit by the...