Manning v. Allgood

• Citation: 412 N.E.2d 811
• Decision Date: 24 November 1980
• Docket Number: No. 3-1078A250,3-1078A250
• Parties: Willie B. MANNING and Peter Eckrich & Sons, Inc., Appellants (Defendants Below) v. Betty ALLGOOD, Personal Representative of the Estate of Eugene Allgood; Roy Morris, Jr. and Mavis Morris, Appellees (Plaintiffs Below).
• Court: Court of Appeals of Indiana

Page 811

412 N.E.2d 811

Willie B. MANNING and Peter Eckrich & Sons, Inc., Appellants (Defendants Below) v. Betty ALLGOOD, Personal Representative of the Estate of Eugene Allgood; Roy Morris, Jr. and Mavis Morris Appellees (Plaintiffs Below).

No. 3-1078A250.

Court of Appeals of Indiana, Third District.

Nov. 24, 1980.

John R. Wilks, Bonahoom, Chapman & McNellis, Fort Wayne, for appellants.

W. Scott Montross, Townsend, Hovde & Townsend, Indianapolis, for appellee Betty Allgood.

HOFFMAN, Judge.

On December 5, 1972, a multiple vehicular accident occurred on Interstate Highway 69, resulting in the death of Eugene Allgood. Following a trial by jury, the court ordered that the plaintiff, Betty Allgood, personal representative of the estate of Eugene Allgood, recover from the defendants, Willie B. Manning and Peter Eckrich & Sons, Inc. the sum of $300,000. The defendants, Manning and Eckrich, now appeal that decision, raising for review ten assignments of error.

The defendants first allege the trial court erred in its procedure in ruling on certain motions prior to, during and after the trial of this cause. Specifically, issue is taken regarding the lack of a hearing or any findings of fact on four motions: the defendants' first motion for partial summary judgment, the second motion for partial summary judgment, the motion for judgment on the evidence, and the motion in limine. No cases have been cited by the defendants in support of this argument as required by Ind. Rules of Procedure, Appellate Rule 8.3. Prejudice is allegedly created in that the failure of the trial court to inform the defendants of the reasons for the denials of their motions precluded the defendants from filing additional motions and pleadings.

Initially, it is noted that the two motions for partial summary judgment were virtually identical in legal arguments. The docket sheet in this cause shows that a hearing was held on the first motion and the argument of counsel was heard. No hearing was necessary on the second motion since it presented no new issues to the court for review. As to the remaining two motions, the defendants never requested that oral hearings be held. They will not now be heard to complain of this lost opportunity when no request was ever presented to the trial court. In addition, Ind. Rules of Procedure, Trial Rule 73(A) permits the court to dispense with oral hearings in an effort to expedite its business.

Regarding the lack of findings, the general rule is that special findings are necessary when a partial summary judgment is granted so that the court on appeal can understand which issues remain in dispute. Harris v. Young Women's Christian Assn. of Terre Haute (1968), 250 Ind. 491, 237 N.E.2d 242; Equitable Life Assur. Society of U. S. v. Crowe (1976), Ind.App., 354 N.E.2d 772. In this case, the motions for partial summary judgment were denied and therefore, the parties may reasonably assume that all issues remained in dispute. This position does not prejudice the rights of the defendants. For the motion in limine and the motion for judgment on the evidence, no findings are necessary. Thus, no error has been preserved for review by this Court and no defect is found in the procedures employed by the trial court.

The second assignment of error charges an irregularity occurred in the presentation by the plaintiff of selected portions of depositions to the jury. Ind. Rules of Procedure, Trial Rule 32(A)(4) states:

"If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts."

During the plaintiff's presentation of her case-in-chief, portions of two depositions were read into evidence. Defense counsel objected to this method of proceeding and requested that the plaintiff be required to read the depositions in full. The court overruled the objection but permitted the defendants to read the entire depositions during their presentation of the case. One of the depositions was 131 pages in length and the other was 92 pages.

Defendants contend that the plaintiff's presentation was made "in such a way that the testimony was nearly fabricated." Plaintiff responded that "counsel took two voluminous, unwieldy and disjointed depositions and carefully, fairly, and honorably made the testimony of the deponents clear, concise and understandable." A close review of the record, including the full depositions, discloses that the presentation of the evidence was fair. Counsel for the plaintiff attempted to place the deponents' statements in chronological order so the jury could better understand the sequence of events. Defense counsel's strong accusations against the plaintiff's presentation are unwarranted. It should be noted that TR. 32 requires only that relevant portions of the depositions be introduced. It does not require the entire document, as the defendants contend. The case of Westinghouse Electric Corp. v. Wray Equipment Corp. (1st Cir. 1961) 286 F.2d 491, at 494 states:

"The rule provides a method for averting, so far as possible, any misimpressions from selective use of deposition testimony. The opposing party is entitled under the rule to have the context of any statement, or any qualifications made as a part of the deponent's testimony also put into evidence. We believe that the spirit of the rule dictates that the opposing party should be able to require the introduction of the relevant parts of the deposition testimony at least at the conclusion of the reading of the deposition." (Emphasis added)

The proceedings in the present case are entirely consistent with the Westinghouse guidelines. No misimpression was created by the plaintiff's presentation. In fact, a more orderly and logical statement of the evidence resulted from the plaintiff's organization. Furthermore, the defendants in the present case requested the admission of the entire deposition, not just the relevant portions thereof. The trial court correctly concluded that this would be unnecessarily disruptive to the plaintiff's case. No error occurred.

The third assignment of error charges that plaintiff's attorney made a prejudicial final argument. Again, the appellants have failed to cite any authority in support of their contention.

The substance of the disputed portion of the argument refers to certain facts from which one could infer negligence by the defendant Manning in the first collision which disabled his vehicle. The issue of negligence as related to that incident had been withdrawn from the jury's consideration by a prior court ruling. Plaintiff's attorney responds that these facts were mentioned for the sole purpose of rebutting the defendants' allegation that the deceased plaintiff Allgood was contributorily negligent. Upon the defendants' objection, the trial court inquired as to the purpose of the argument, decided it was within the issues of the case, and overruled the objection. No error has been demonstrated by the defendants.

The appellants next object to the procedure used in the selection and giving of final instructions to the jury. Prior to the close of the evidence, a lengthy and detailed conference was held to discuss the instructions to the jury. At that time, both parties were given the opportunity to tender instructions, object to instructions and argue the issues. Both parties fully participated in this conference. For the convenience of the court and to expedite the case, actual dictation of the previously-lodged objections did not take place until after the jury had commenced deliberations. Ind. Rules of Procedure, Trial Rule 51(C) states:

"... No party may claim as error the giving of an instruction unless he object thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection...."

Defendants now submit that reversible error occurred because objections were not made on the record prior to the retirement of the jury. The same situation occurred in the case of Piwowar v. Washington Lumber & Coal Co. (1980), Ind.App., 405 N.E.2d 576 in which this Court ruled that, although the method employed was not the preferred procedure, it did not create reversible error. The purpose of TR. 51 is to guarantee counsel the opportunity to make timely objections and to advise both the trial court and the adverse party of the basis for the objection so as to afford the opportunity to correct any error at the trial court level. Murphy, Admx. v. Ind. Harbour Belt Railroad (1972), 154 Ind.App. 103, at 118, 289 N.E.2d 167, at 177. So long as this purpose is fulfilled, the technical failure to formally record those objections prior to the retirement of the jury does not create error of sufficient magnitude to require a reversal. In the case at hand, no rights of the defendants were lost or compromised by this procedure. The defendants acquiesced in the use of this procedure and did not request a court reporter during the conference on instructions, nor did they offer their objections in open court prior to the charge to the jury. Thus, the defendants have failed to demonstrate reversible error. ¹

This discussion must now turn to the defendants' fifth allegation of error which states that the trial court erred in its failure to give the preliminary instructions tendered by the defendants-appellants. After relating all of the tendered preliminary instructions and all of the instructions which the court gave, the defendants present barely more than a page of actual argument which is devoid of any citations to authority. This presentation is insufficient to preserve error for review by this Court. As stated by the Supreme Court in Abrams v. State (1980), Ind., 403 N.E.2d 345, at 347:

"... We have often held that arguments in appellate briefs must be discernible and cogent and must demonstrate how the alleged error harmed...