Jones v. City of Logansport

• Decision Date: 30 August 1982
• Docket Number: No. 3-781A181,3-781A181
• Citation: 439 N.E.2d 666
• Parties: Michael JONES, Appellant (Plaintiff Below), v. CITY OF LOGANSPORT; Clyde E. Williams and Associates, A Corporation; Zimpro, Inc., A Division of Sterling Drug Company, A Corporation, Appellees (Defendants Below), v. The GRUNAU COMPANY, INC., (Third Party Defendant Below).
• Court: Indiana Appellate Court

Page 666

439 N.E.2d 666

Michael JONES, Appellant (Plaintiff Below), v. CITY OF LOGANSPORT; Clyde E. Williams and Associates, A

Corporation; Zimpro, Inc., A Division of Sterling

Drug Company, A Corporation, Appellees (Defendants Below), v. The GRUNAU COMPANY, INC., (Third Party Defendant Below).

No. 3-781A181.

Court of Appeals of Indiana Third District.

Aug. 30, 1982.

Floyd F. Cook, Kokomo, Smith, Helmerick & Smith, Lafayette, for appellant.

Tom F. Hirschauer, Logansport, for appellee City of Logansport.

Paul E. Becher, Elkhart, for appellee Clyde E. Williams and Associates, Inc.

Arthur G. Surguine, Jr., Fort Wayne, for appellee Zimpro, Inc., A Div. of Sterling Drug Co., A Corp.

ON PETITION FOR REHEARING

STATON, Judge.

While a waste treatment plant was constructed for the City of Logansport, Indiana, Michael Jones was injured. He was holding a cable attached to a crane when the crane either came into contact with high voltage electrical lines or was close enough to the lines for the electricity to arc from the electrical lines to the crane. Jones alleged at trial that his injuries were the result of the negligence of several defendants. The jury returned a verdict against Jones. We addressed his appeal from that trial in our opinion Michael Jones v. City of Logansport (1982), Ind.App., 436 N.E.2d 1138.

In his appeal, Jones had argued that the trial court had erred when it rejected part of his tendered instruction number 8 because his instruction was a correct statement of the law. We stated that according to Ind.Rules of Procedure, Appellate Rule 8.3(A)(7) Jones had waived this issue because he had not supported his statement with any authorities. On rehearing, Jones argues that he did not waive this issue as follows:

"Since Instruction 8 is premised on the non-delegable duty which an owner owes to workers to keep his premises reasonably safe and is supported by the authorities cited, this Honorable Court erred in holding that Jones had waived this most important issue. Counsel for Jones was frustrated throughout this trial by the trial Court and counsel for both Zimpro and Logansport's positions that non-delegable duties as to either of said parties was not applicable. Therefore, it is hoped that Jones' counsel's efforts to explain what a non-delegable duty is will be better understood by this Court. Surely, it is the law in Indiana that an owner-contractee owes a non-delegable duty to furnish all workers a safe place to work, as per the foregoing cited cases. This was Instruction 8 and counsel takes the blame for going all the way around the barn to reach the front gate. However, along the way he does cite the necessary authorities to support instruction 8 even though he mixed them up so thoroughly with the Doctrine of non-delegable duties as to cause a busy Court to miss our argument contained in eight pages of the brief."

On page 1145 in footnote number 7 we noted our preference of deciding issues upon their merits. We further stated as follows:

"We have also struggled to decipher all the issues and answer them in this opinion. Any issue we missed is deemed waived as Jones had the duty to clearly present the issues and argument. AP. 8.3(A)(7). McManus v. State (1982), ____ Ind. ____, 433 N.E.2d 775."

Jones chose to argue several issues, not necessarily related, at the same time. He jumped from issue to issue and back again. Now he clearly argues that authorities that strongly support his other issues also can support his tendered instruction number 8. He admits his argument was mixed up, and he now attempts to decipher part of his argument. Unfortunately, this organization and elaboration of his argument comes too late. The date for the separation of the...