Health & Hospital Corp. of Marion County v. Gaither

• Citation: 397 N.E.2d 589,272 Ind. 251
• Decision Date: 04 December 1979
• Docket Number: No. 1279S336,1279S336
• Parties: HEALTH & HOSPITAL CORPORATION OF MARION COUNTY; Marion County General Hospital; The City of Indianapolis; Sam Drake; R. Ward; Timothy Cravens; Major Wolff; C. La Follette; C. Osbourn; and Unknown Persons, Individually and as Police Officers in the Police Department of the City of Indianapolis, Indiana, Appellants (Defendants below), v. George W. GAITHER, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

Page 589

397 N.E.2d 589

272 Ind. 251

HEALTH & HOSPITAL CORPORATION OF MARION COUNTY; Marion County General Hospital; The City of Indianapolis; Sam Drake; R. Ward; Timothy Cravens; Major Wolff; C. La Follette; C. Osbourn; and Unknown Persons, Individually and as Police Officers in the Police Department of the City of Indianapolis, Indiana, Appellants (Defendants below), v. George W. GAITHER, Appellee (Plaintiff below).

No. 1279S336.

Supreme Court of Indiana.

Dec. 4, 1979.

Stephen Goldsmith, William L. Soards, Soards & Carroll, Indianapolis, for appellant, City of Indianapolis.

Joe Tipton, Frank E. Spencer, George H. Doane, Jr., Indianapolis, for appellee.

HUNTER, Justice.

This case is before this Court on the petition to transfer of the plaintiff-appellee-petitioner, George W. Gaither. On September 30, 1976, a jury in the Marion Superior Court rendered a verdict in favor of plaintiff Gaither and against the defendant-appellant-respondent, City of Indianapolis, in the amount of $17,500. Defendant appealed the judgment of the trial court and the Court of Appeals, Second District, reversed and remanded the cause to the trial court for further proceedings. We grant transfer and vacate the opinion of the Court of Appeals.

The relevant facts most favorable to the party prevailing at trial follow.

On May 5, 1970, plaintiff was at his place of employment in Indianapolis. After lunch, plaintiff experienced problems in speaking and became somewhat confused. He got into his car and proceeded to drive home, but hit another car. A police officer arrived on the scene and asked plaintiff for his driver's license. Plaintiff stated that his left arm and leg were weak, but that he had had nothing to drink. The police officer charged plaintiff with reckless driving, drunk driving, disorderly conduct and public intoxication, put plaintiff in the patrol car and took him downtown. At the police station, plaintiff was given two breathalyzer tests; in each instance, the results were negative. Thereafter plaintiff was put in a cell, taken to Marion County General Hospital where he was shackled to a bed and received no treatment, taken back to the lockup and again taken to General Hospital and again received no treatment. While in police custody, plaintiff was pushed and shoved and one officer grabbed his collar, tearing his coat. After approximately eight hours of detention, plaintiff was released from General Hospital. His wife took him to Community Hospital where doctors determined that plaintiff had had a stroke and hospitalized plaintiff for eleven days.

Plaintiff brought suit against defendant and others alleging false arrest, false imprisonment, assault and medical malpractice. The matters involving the alleged malpractice on the part of the Marion County Health & Hospital Corporation and Marion County General Hospital were settled out of court. At the end of the trial, only the City of Indianapolis and two police officers remained as defendants. The jury returned a verdict against only defendant City of Indianapolis.

The Court of Appeals reversed the judgment of the trial court on the issue of notice. Plaintiff filed notice to the City of Indianapolis on July 8, 1970, sixty-four days after the incident. The Court of Appeals reasoned that since Burns Ind.Stat.Ann. § 48-8001 (Supp. 1971), IC (1971) 18-2-1 provides that notice of the occurrence which is the subject of an action against a municipality shall be given within sixty days of that occurrence, notice was not timely filed.

At trial, defendant attempted to raise the notice issue five times:

1. In its answer to the complaint on June 16, 1972, defendant alleged "proper notice of plaintiff's claim was not served upon the City of Indianapolis as required by the statute." Plaintiff was granted leave to file an amended complaint and defendant filed its answer to the amended complaint but did not raise the affirmative defense of untimely notice. Failure to give notice is a defense which a city must assert in its answer to the plaintiff's complaint. Thompson v. City of Aurora, (1975) 263 Ind. 187, 325 N.E.2d 839. ¹ The answer to the amended complaint replaced the earlier answer and therefore issues raised in the earlier answer and not included in the second answer were not before the trial court.

2. On November 18, 1974, defendant filed a motion for summary judgment alleging untimely notice. Summary judgment must be rendered if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind.R.Tr.P. 56. The affidavit of plaintiff attached to his brief in opposition to the motion for summary judgment indicated that plaintiff was unable to comply with the statute by reason of his inability to communicate after his stroke on May 5, 1970, until about July 6 or 7, 1970. A plaintiff who is mentally and physically incapacitated so that he cannot give notice as required by the statute shall have a reasonable time after such disability is removed within which to file the notice to the city. City of Fort Wayne v. Cameron, (1977) 267 Ind. 329, 370 N.E.2d 338. Therefore, there was a serious issue as to a material fact, incapacity, which prevented summary judgment on defendant's motion.

3. Defendant filed an unverified motion to dismiss alleging untimely notice. This motion to dismiss was denied by the trial court. Defendant filed the motion under Ind.R.Tr.P. 12(B)(6). Ind.R.Tr.P. 12(B) provided as follows:

"If, on a motion, asserting the defense number (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. In such case, all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."

Since there was an unresolved issue of material fact as outlined above, the unverified motion to dismiss was properly denied.

4. The report of the pretrial conference filed by the attorneys contained no mention of the notice issue. Therefore, by the day of trial, September 28, 1976, the issues were closed. On the day of trial, defendant moved to amend its answer to include the issue of notice without alleging compelling justification to do so. This motion was properly denied. Selvia v. Reitmeyer, (1973) 156 Ind.App. 203, 295 N.E.2d 869. Ind.R.Tr.P. 15(A) provides in part:

"A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted, And the action has not been placed upon the trial calendar, he may so amend it at any time within thirty (30) days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be given when justice so requires." (Emphasis added.)

Regarding amendments to pleadings under the circumstances of this case, the Court of Appeals has held "The matter of permitting the opening of the issues for the purpose of filing additional pleadings and amending pleadings after the issues are closed is within the sound legal discretion of the trial court. Unless it is shown that there has been an abuse of such discretion, with prejudice resulting to appellant, it will be presumed that there was no error." Moore v. Boxman, (1969) 144 Ind.App. 252, 261, 245 N.E.2d 866, 871; Spangler v. Armstrong Rubber Co., (1962) 133 Ind.App. 411, 413, 178 N.E.2d 764, 765.

5. At the end of the trial defendant included lack of timely notice as a ground for motion for judgment on the evidence. From the above analysis of the procedural record, it is clear that there was no valid issue of notice remaining on the day of trial. Accordingly the trial court denied the motion for judgment on the evidence at the end of trial.

The Court of Appeals in the instant case reversed the judgment of the trial court and remanded the cause for further proceedings on the notice issue. The Court of Appeals has apparently decided, by implication, a new question of law: that an appellate court can remand a cause for a hearing to determine a disputed issue of fact on a motion for summary judgment or a motion to amend an answer after the issues had been closed and without finding any error or abuse of discretion at the trial court. For this reason, we vacate the judgment of the Court of Appeals.

Defendant City of Indianapolis presents several other issues which were not decided by the Court of Appeals, which we have consolidated into the following issues for review:

1. Whether the trial court erred in overruling defendant's motion to produce;

2. Whether the trial court erred in instructing the jury as to the arrest of plaintiff;

3. Whether the trial court erred in instructing the jury as to the doctrine of Respondeat superior ;

4. Whether the trial court erred in refusing to give defendant's tendered instruction number nine;

5. Whether the verdicts of the jury are irreconcilably inconsistent and, therefore, contrary to law; and

6. Whether the verdict of the jury and judgment of the trial court are supported by sufficient evidence.

I.

On the fourth day of trial, plaintiff settled his claim against the Health & Hospital Corporation of Marion County and Marion County General Hospital, apparently through a loan receipt agreement. Defendant City of Indianapolis sought to obtain a copy of this agreement through a motion to produce. This motion was made at the end of the trial. It appears from the record, however, that a more timely motion was attempted off the record and the judge indicated such a motion would be denied. The formal motion at the end of the trial was for purposes of the record only. The record does not reveal the timing of the original move by defendant. We will not treat this issue as...