McDonald v. Miller

• Decision Date: 27 November 1968
• Docket Number: No. 2,No. 867,867,2
• Citation: 242 N.E.2d 39,143 Ind.App. 606
• Parties: Madeline McDONALD, etc., Appellant, v. Lucille M. MILLER, Appellee. A 42
• Court: Indiana Appellate Court

Page 39

242 N.E.2d 39

143 Ind.App. 606

Madeline McDONALD, etc., Appellant, v. Lucille M. MILLER, Appellee.

No. 867 A 42.

Appellate Court of Indiana, Division No. 2.

Nov. 27, 1968.

Rehearing Denied Dec. 17, 1968.

William F. McNagny, Robert L. Thompson, Jr., Fort Wayne, for appellant; Barrett, Barrett & McNagny, Fort Wayne, of counsel

Hunt, Suedhoff & Wilks, Fort Wayne, for appellee.

OPINION

BIERLY, Judge.

This is an action for the wrongful death of the plaintiff-appellant's husband, Charles McDonald, a pedestrian who died after being struck down by the automobile of the defendant-appellee Lucille M. Miller, at the intersection of Broadway and Parkview, in the City of Fort Wayne, Indiana, on September 23, 1963.

The issues were joined on the question of the defendant's negligence and the plaintiff's contributory negligence in the Allen Superior Court No. 3. Then, following a change of venue to the DeKalb Circuit Court, the plaintiff requested trial by jury which request was granted by the court. Later, on defendant's motion to reconsider the order granting a jury trial, the former order granting a jury trial was reviewed and revoked over the plaintiff's objection. Trial was then had before the court which heard the evidence and issued special findings of fact to the effect that the defendant was negligent, which negligence was a proximate cause of said accident, and further, that the plaintiff's decedent was also negligent, which negligence was a contributory cause of the accident. Upon these findings the court entered its judgment for the defendant.

The appellant assigns as error the overruling of her motion for a new trial, setting forth three specific propositions for our review:

1) That the trial court erred in depriving the appellant of trial by jury by granting the appellee's motion to reconsider order granting jury trial only three days before the trial date.

2) That the trial court erred in allowing certain opinion testimony which prejudicially invaded the province of the trier of fact.

3) That the judgment is not sustained by sufficient evidence and is contrary to law.

On March 11, 1965, plaintiff-appellant filed her amended complaint for damages in the Superior Court No. 3 of Allen County. The defendant-appellee answered on April 2, 1965, and requested a change of venue from Allen County, which request was granted on April 21, 1965, and the matter moved to the DeKalb Circuit Court of DeKalb County. Said court, on June 16, 1965, ordered the case set for trial to the court on November 8, 1965. Trial was, however, delayed for reasons not shown in the record. Thereafter, on January 21, 1966, the plaintiff filed her request for trial to a jury, which request was granted over the defendant's objection on March 15, 1966. Subsequently, the matter was ordered tried to a jury on October 17, 1966. Four days prior to said date of trial, on October 13, 1966, the defendant filed her 'Motion to Reconsider Order Granting Jury Trial'; this motion was granted and the plaintiff's previously granted request for a jury trial was thereby overruled.

It is the contention of the appellee that by her failure to file her request for trial by jury within ten (10) days as required by the Rules of the Supreme Court of Indiana, the appellant waived the right to trial by jury. Rule 1--8A of the Rules of the Supreme Court of Indiana, 1967 Edition, provides as follows:

'RULE 1--8A. Request for Trial by Jury. A jury trial in all cases other than criminal, where trial by jury may now be had, may be requested by any party within the same time limitations within which such party may request a change from the judge or county in civil cases. (See Rule 1--12B) A jury trial not so requested shall be deemed waived.

'A demand for trial by jury may not be withdrawn without the consent of all parties. Adopted September 25, 1953. Effective January 1, 1954. Amended May 15, 1958. Effective September 1, 1958. Amended April 3, 1964. Effective July 1, 1964.'

The applicable provisions of Rule 1--12B are:

'RULE 1--12B. Change of Venue. * * * 2. In any action except criminal no change of judge or change of venue from the county shall be granted except within the time herein provided. Any such application for a change of judge or change of venue shall be filed not later than ten (10) days after the issues are first closed on the merits. * * * 7. Provided, further, a party shall be deemed to have waived a request for a change of judge or county if a cause is set for trial before the expiration of the date within which a party may ask for a change, evidenced by an order book entry and no objection is made thereto by a party as soon as such party learns of the setting for trial. Such objection, however, must be made promptly and entered of record, accompanied with a motion for a change from the judge or county (as the case may be) and filed with the court. * * *'

In support of her waiver argument, appellee cites Hayworth v. Bromwell (1959), 239 Ind. 430, 158 N.E.2d 285. Hayworth involved a jury request filed over six months after the case went to issue. In denying the request for jury trial, the court said:

'RULE 1--8A, supra, which fixes the time within which a request for a trial by jury must be made, does not take away the right to a jury trial. It only provides the method of waiving such right.

'It is well settled that the right to a jury trial may be waived.'

The court went on to say:

'RULE 1--8A, supra, which fixes the time within which a request for trial by jury in civil cases shall be made, is a reasonable procedural regulation designed to prevent delays, to expedite the decision of cases, and to remedy a common abuse in the practice. It does not in any way affect the substantive or essential elements of a trial by jury as it existed at common law and is not in violation of appellant's right to a trial by jury as guaranteed by Art. 1, § 20, of the Constitution of Indiana.'

Similar holdings may be found in State ex rel. Victory Lanes, Inc. v. Blackford Circuit Court (1967), Ind., 231 N.E.2d 140; and Spangler v. Armstrong Rubber Co. (1961), 133 Ind.App. 411, 178 N.E.2d 764.

It is clear that the appellant waived her right to jury trial by her failure to file a request within 10 days after the closing of the issues. Indeed, appellant concedes this to be so. Appellant contends, however, that when the trial court later granted the appellant's request for jury trial on March 15, 1966, the court was acting within the scope of its discretionary powers to grant such a request even though the time for doing so allowed by the Supreme Court Rules had long since passed, citing: Aetna Cas. & Surety Co. v. Acme-Goodrich, Inc. (1959), 130 Ind.App. 432, 159 N.E.2d 310. Appellant further argues that the subsequent reconsideration of the granting of that request to rescind the order for trial by jury, more than six months after it was granted and only three days prior to trial, was prejudicial error.

This appears to be a question of first impression and no cases are cited by either party which have decided whether the reinstatement of the right to trial by jury nullifies a prior waiver and restores the right to its original status.

The appellee contends that the granting of the appellant's motion for a jury trial after the passage of the time allowed by the rules was error, and, that in reversing itself upon the appellee's motion to reconsider the lower court merely corrected that error.

The parties concede that they are unable to find a case as precedent in which the trial court granted a request for a jury trial after the time allowed by the rules and then later reversed itself.

It is our opinion that the trial court was acting within its discretion when it granted the plaintiff-appellant's motion for trial by jury, even though the time for filing such request under Rule 1--8A had passed. Section 2--1204, Burns' Indiana Statutes Annotated, 1967 Replacement, says:

'Causes triable by court and by jury.--Issues of law and issues of fact in causes that, prior to the 18th day of June, 1852, were of exclusive equitable jurisdiction, shall be tried by the court, issues of fact in all other causes shall be triable as the same are now triable. In case of the joinder of causes of action or defenses, which prior to said date were of exclusive equitable jurisdiction, with causes of action or defenses which prior to said date were designated as actions at law and triable by jury--the former shall be triable by the court, and the latter by a jury, unless waived; the trial of both may be at the same time or at different times, as the court may direct: Provided, That in all cases triable by the court as above directed, the court in its discretion for its information, may cause any question of fact to be tried by a jury, or the court may refer any such cause to a master commissioner for hearing and report. (Acts 1881 (Spec.Sess.), ch. 38, § 372, p. 240.)' (Our emphasis).

We further hold that once the trial court exercised its discretion in granting a trial by jury that right again fell under the protection of Rule 1--8A which requires that: 'A demand for trial by jury may not be withdrawn without the consent of all parties.' Thus, the discretion granted by Section...