Kapusta v. De Puy Mfg. Co.

• Decision Date: 29 September 1967
• Docket Number: No. 1,No. 20619,20619,1
• Parties: Joseph KAPUSTA, Appellant, v. DE PUY MANUFACTURING COMPANY, Inc., Appellee
• Court: Indiana Appellate Court

Page 828

229 N.E.2d 828

141 Ind.App. 479

Joseph KAPUSTA, Appellant, v. DE PUY MANUFACTURING COMPANY, Inc., Appellee.

No. 20619.

Appellate Court of Indiana, Division No. 1.

Sept. 29, 1967.

Patrick & Anderson, South Bend, for appellant

Graham, Rasor & Harris, Warsaw, for appellee.

PRIME, Judge.

This appeal is from a summary judgment rendered by the trial court in favor of appellee, defendant in that court.

Joseph Kapusta was injured in an automobile accident which occurred on April 14, 1967, in DuPage County, Illinois. The injuries were caused by the negligence of one Billie Joe Lambert in operating his motor vehicle. Mr. Kapusta was admitted to the hospital the same day. An intertrochanteric plate manufactured by the De Puy Company was affixed to his fractured leg on April 18, 1957, to aid in its healing. Mr. Kapusta of course knew nothing about the manufacture, implantation, or reliability of this device; he and the physicians attending him could reasonably assume it to be of sufficient quality to perform its appointed task.

Appellant's leg became inflamed in the area of the device sometime in July of 1959. He was again hospitalized for some ten days, but was treated and released without surgery. On October 12, 1959, appellant was hospitalized, and on October 20, 1959, surgery was performed in the area of inflamation.

The plate had broken at a point approximately two inches from his knee.

Subsequently, on November 13, 1959, Mr. Kapusta executed the following document:

GENERAL RELEASE

'FOR THE SOLE CONSIDERATION of TWENTY THOUSAND FIVE HUNDRED SIXTY FIVE AND NO/100 ($20,565.00) Dollars, the receipt and sufficiency whereof is hereby acknowledged, the undersigned hereby releases and forever discharges, BILLIE JOE LAMBERT and ARTHUR M. LAMBERT their heirs, executors, administrators, agents and assigns, and all other persons, firms, or corporations liable, or who might be claimed to be liable, none of whom admit any liability to the undersigned but all expressly deny any liability from any and all claims, demands, damages, actions, causes of action, or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person or property, which have resulted or may, in the future, develop from an accident, which occurred on or about the 14th day of April, 1957, at or near North Avenue at the intersection of Grace Street, City of Lombard, County of DuPage, State of Illinois.

The undersigned hereby declares that the terms of this settlement have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages above mentioned.

SIGNED and SEALED this 13th day of November, 1959, at South Bend, Indiana.

x/s/ Joseph Kapusta SEAL'

JOSEPH KAPUSTA

I.

There is pending before this court a motion filed by appellee to dismiss this appeal, or, in the alternative, to affirm the judgment of the trial court. The thrust of his argument is that a motion for new trial is a nullity after a trial court renders summary judgment, and that appellant has thus failed to satisfy the ninety day time limit for filing appeals by not appealing directly from the judgment within ninety days. Indiana Supreme Court Rule 2--2.

Summary judgment was entered October 28, 1965. Appellant filed his motion for new trial on November 27, 1965. This motion was overruled on April 12, 1966. The transcript and assignment of errors were filed on July 8, 1966, within ninety days after the ruling on the motion for new trial, but more than ninety days after final judgment. The reason advanced by appellee that such a motion for new trial is a nullity is that there was in fact no trial.

In Indiana a trial is '* * * a judicial examination of the issues, whether of law or of fact, in an action.' Acts of 1881 (Special Session), Ch. 38, § 371, p. 240. Burns' Indiana Statutes § 2--1901.

We are of the opinion that a summary judgment is such an examination. The trial court examined the pleadings before it and, finding no material facts in issue, passed judgment. Moreover, a primary function of a motion for new trial is to allow any mistakes occurring in lower courts to be corrected there. A motion for new trial may be granted for any of eight reasons, and a determination of summary judgment could conceivably be affected by several of these situations. Acts of 1881 (Special Session) Ch. 38, § 420, p. 240; Burns' Indiana Statutes § 2--2401.

Appellant's motion for new trial was properly taken after the trial court's finding, and appellee's motion to dismiss or affirm is hereby denied.

II.

Our second point for consideration is the legal effect of this release. We cannot question its validity or genuineness, since it was not so questioned below. The law of Illinois controls this question, since the release was executed there.

The rule applied by that jurisdiction to determine the extent of a release of this nature is that if an original tort-feasor may be held liable for the entire amount of damages relating to one's injury, which is subsequently aggravated by an intervening tort committed by a third party, a release of the original tort-feasor operates to release the third party. Guth v. Vaughan (1923) 231 Ill.App. 143; Spelman v. Pirie (1924) 233 Ill.App. 6; Tidwell v. Smith (1960) 27 Ill.App.2d 63, 169 N.E.2d 157.

The rationale is clear; one having received full satisfaction should not be allowed to recover again for the same injury, even though it has been aggravated. It will be observed that the releases given in the cited cases were to the original tortfeasor only, and did not purport to release all persons from liability for all injuries, known or unknown, as did this particular release.

It must also be borne in mind that the release was executed by appellant sometime after discovery of the aggravating circumstances, and that no fraud or duress precipitated its signing.

The release was an effective bar to appellant's action. Having so determined, we turn to the propriety of summary judgment.

III.

The pertinent sections of the controlling summary judgment statute are as follows:

(b) 'For Defending Party. A party against whom a complaint, counterclaim or cross-complaint is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

(c) Motion and Proceedings Thereon. The motion shall be served at least ten (10) days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

(e) Form of Affidavits--Further Testimony--Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.' Acts of 1965, Ch. 90, Burns' Indiana Statutes § 2--2524.

The statute is taken verbatim from the Federal Rules of Civil Procedure, Rule 56, as amended. Its purpose is to allow the trial court to determine, without the necessity of formal litigation proceeding to unnecessary extremes, the existence of genuine material issues of fact. A finding in favor of a moving party is a finding that he is entitled to judgment as a matter of law.

In this case, appellee moved for summary judgment, and submitted sworn affidavits presenting his defense: the release given by appellant to a third party. Appellant did not affirmatively respond with counter-affidavits, but chose to stand on his pleadings. His pleadings consisted of a complaint and demurrers to appellee's answers which asserted defenses of the release and statute of limitations. The statute clearly provides that one relying solely upon his pleadings shall have summary judgment entered against him. Were this not the rule, a party could render the statute a nullity by standing on his complaint or by asserting an answer in general denial. The Federal Courts do not countenance such tactics, and our legislature has likewise seen fit to safeguard the operation of the Indiana statute in this respect.

The Federal cases cited by appellant, to the effect that summary judgment is not appropriate when a material factual issue is raised by the pleadings, are not controlling here. Federal Rule 56 has been amended since their rendition to deny a party the right to rely on his pleadings alone.

Appellee thus prevails for two reasons. First, the release given by appellant was a good defense, and appellee's affidavits showed thereby the lack of a material factual issue. Second, appellant, by his failure to serve counter-affidavits that might show some factual...