Illinois Cent. Gulf R. Co. v. Parks
| Decision Date | 25 June 1979 |
| Docket Number | No. 1-278A43,1-278A43 |
| Citation | 390 N.E.2d 1073,181 Ind.App. 148 |
| Parties | ILLINOIS CENTRAL GULF RAILROAD COMPANY, Robert L. Waltrip, Appellants-Defendants, v. Bertha Fay PARKS, Jessie L. Parks, Appellees-Plaintiffs. |
| Court | Indiana Appellate Court |
Robert H. Hahn, George A. Porch, Evansville, for appellant-defendant Illinois Central Gulf Railroad Company; Bamberger, Foreman, Oswald & Hahn, Evansville, of counsel.
Glenn A. Grampp, James D. Lopp, Sr., James D. Lopp, Jr., Evansville, for appellees-plaintiffs; Lopp, Lopp & Grampp, Evansville, of counsel.
In an action brought by Bertha Fay and Jessie L. Parks, husband and wife, against the Illinois Central Gulf Railroad Co. and its engineer Robert L. Waltrip, judgment was entered on a jury verdict as follows: Bertha was to recover $30,000 for her personal injuries from Illinois Central Gulf but take nothing from Waltrip; Jessie was to take nothing for loss of his wife's services and consortium from either defendant.
The Parks' complaint alleged that Illinois Central Gulf and Waltrip negligently operated a train and that this negligence proximately caused the collision between the Parks' car and an Illinois Central Gulf train which resulted in Bertha's personal injuries and Jessie's loss of Bertha's services and consortium.
Illinois Central Gulf appeals the judgment in favor of Bertha, raising three issues for review:
(1) Whether the judgment is contrary to the law and the evidence in that Bertha was contributorily negligent as a matter of law;
(2) Whether the trial court committed reversible error in giving Court's Instruction No. 5 F; and
(3) Whether the trial court committed reversible error in giving Plaintiffs' Instruction No. 1.
We affirm.
Illinois Central Gulf's first argument is based on the position that the jury verdict and judgment thereon in favor of Bertha are inconsistent with the verdict and judgment thereon against Jessie and are therefore contrary to law. The railroad cites no authority for this position and thus could be considered to have waived it under Ind.Rules of Procedure, Appellate Rule 8.3(A)(7). We prefer, however, to address the contention on its merits.
Under the law, a verdict may be bad and may be found not to support a judgment if it is legally or logically inconsistent, contradictory or repugnant, 28 I.L.E. Trials § 316 (1960); 89 C.J.S. Trial §§ 496 and 500 (1955); Indianapolis Newspapers, Inc. v. Fields, (1970) 254 Ind. 219, 259 N.E.2d 651, but the court indulges every reasonable presumption in favor of the legality of jury verdicts. Indianapolis Newspapers, Inc., supra; Central Union Telephone Co. v. Fehring, (1896) 146 Ind. 189, 45 N.E. 64.
The railroad's argument starts with the basic premise that the form and substance of the jury verdict establish that Jessie's claim for damages was rejected by the jury because the jury found him contributorily negligent. Building on this premise, the railroad argues that Bertha is contributorily negligent as a matter of law under one of two theories: 1) that the contributory negligence of a vehicle's operator is imputed to the vehicle owner present in the vehicle; or 2) that the evidence in relation to Jessie is identical to the evidence in relation to Bertha, requiring the jury to find her contributorily negligent also. Illinois Central Gulf's basic premise fails and with it the rest of its argument.
The railroad contends that the $30,000 verdict against the railroad and in favor of Bertha shows that the jury necessarily found that the railroad was negligent and that this negligence proximately caused Bertha's injuries. With this, we agree. The railroad next asserts that the finding against Jessie and for the defendants shows that the jury necessarily found that Jessie was contributorily negligent. With this, we cannot agree.
To find for Jessie under the pleadings in the case at bar, a jury would have to find: 1) that Illinois Central Gulf was negligent; 2) that its negligence proximately caused the injuries to Bertha; 3) that Jessie suffered damages as a result of Bertha's injuries; and 4) that Jessie's damages were not proximately caused by any negligence on his own part. Given the verdict for Bertha, the first two propositions were necessarily found by the jury. The jury's failure to award Jessie any money damages could be the result of a finding of contributory negligence, but it could also be the result of a failure to find compensable damages.
In his complaint, Jessie sought to recover money damages for his loss of his wife's services and consortium and for his expenditures for her medical care. At the close of their evidence, plaintiffs moved to amend the pleadings to conform to the evidence and the motion was granted. In the instructions, the jury was told to consider as an element of Bertha's damages "the reasonable expense of necessary medical care, treatment and services and the expense of future medical care, treatment and services, if any." This element was stricken from the tendered instruction on the elements of Jessie's damages. Consequently, Jessie asked the jury only for money damages for "the reasonable value of the loss of the services, society and companionship of plaintiff's wife and the present cash value of the services, society and companionship of which plaintiff is reasonably certain to be lost in the future, if any." The jury verdict against Jessie could mean that Jessie failed his burden of proving compensable damages.
The railroad contends that this could not have been the basis for the jury finding against Jessie because the evidence as to Jessie's damages from the loss of his wife's services and consortium was uncontroverted. Much of the testimony on damages cited by the railroad to this court went to Bertha's activities after the accident as compared to her activities before the accident in terms of her role in the operation and maintenance of rental properties in conjunction with her husband. This testimony was relevant to an element of Bertha's claim for damages, "the value of lost time and loss or impairment of earning capacity, if any."
We agree with Bertha that the evidence directly relevant to Jessie's damages was minimal. Jessie testified that he is unable to enjoy camping and fishing with his wife as much as he did prior to the accident and that he now fixes breakfast and lunch and helps with the housework more than he previously did. Bertha testified to an expenditure for hired help of "$1550 or somewhere around in there" but the record of her testimony indicates that this was largely in relation to the rental property maintenance and not the housework.
The assessment of damages for a husband's loss of his wife's services and consortium is committed to the sound discretion of the jury. 9 I.L.E. Damages § 185 (1971); Hooper v. Preuss, (1941) 109 Ind.App. 638, 37 N.E.2d 687. On the issue of damages incurred by Jessie, the jury was instructed:
This instruction could reasonably have been interpreted by the jury as saying to it that it had a right to find that Jessie had not proven damages, even though it was also of the opinion that the railroad's negligence alone caused the accident. See Niemeyer v. Lee, (1969) 144 Ind.App. 161, 245 N.E.2d 178.
Illinois Central Gulf next objects to the giving of the following portion of Court's Instruction No. 5 F:
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