Miller v. Griesel, 572A249

• Docket Nº: No. 572A249
• Citation: 297 N.E.2d 463
• Case Date: June 19, 1973
• Court: Court of Appeals of Indiana

Page 463

297 N.E.2d 463

William MILLER, b/n/f Kathlyn Miller, Appellant (Plaintiff Below), v. Dale H. GRIESEL et al., Appellees (Defendants Below).

No. 572A249.

Court of Appeals of Indiana, Third District.

June 19, 1973.

Rehearing Denied July 26, 1973. Opinion Superseded 308

N.E.2d 701.

Thomas H. Singer, Lysohir & Singer, South Bend, John S. Diaz, Diaz & Moore, Portage, for appellant.

Patrick J. Dougherty, Valparaiso, Spangler, Jennings, Spangler & Dougherty, Gary, for appellees Dale H. Griesel and Valma J. Hall.

Winfield L. Houran, William F. Satterlee, III, John E. Hughes, Chester, Clifford, Hoeppner & Houran, Valparaiso, for appellee School City of East Gary.

STATION, Judge.

I. STATEMENT ON THE APPEAL

Fifth grade students at the Virgil I. Bailey School in East Gary, Indiana had just finished lunch. Recess followed from 11:50 o'clock A.M. to 12:20 o'clock P.M. Approximately ten of the fifth grade students had decided to stay inside their classroom during the recess period. After making arrangements with the teacher in the adjoining classroom to occasionally look in on the ten remaining students, the fifth grade teacher left the classroom. During the teacher's absence, William Miller went to the desk of a fellow student so that he could investigate the contents of a box which resembled a fishing tackle box. Guy Wedge's fishing tackle box contained a detonator cap and batteries. William Miller thought the detonator cap was a Christmas light so he touched the cap to the batteries. The cap exploded and permanently damaged his left eye.

William Miller, by next friend, brought an action for damages against the teacher, Velma J. Hall, the principal, Dale H. Griesel and the School City of East Gary. After William Miller had presented his evidence to the jury, the teacher, principal and School City of East Gary moved for a judgment on the evidence under Rule TR. 50, IC 1971, 34--5--1--1, of the Indiana Rules of Civil Procedure. This motion was granted by the trial court, and William Miller filed his motion to correct errors which presents these issues on appeal:

1. Did the trial court err when it sustained the motion for judgment on the evidence under Rule Tr. 50?

2. Did the trial court abuse its discretion when it refused to order Dale Griesel and Velma Hall to answer certain discovery questions during the taking of their depositions?

3. Did the trial court commit reversible error when it refused to permit William Miller's counsel to '. . . cross-examine the Defendant, Dale Griesel, as an expert witness by using an authoritative treatise. . . .'?

4. Did the trial court commit reversible error when it sustained objections to

cross-examination questions asked by William Miller's counsel

Our opinion concludes that the trial court did not err when it sustained the motion for judgment on the evidence and that there was no abuse of discretion by the trial court when it sustained the objections to the questions asked by William Miller's counsel. Our opinion affirms the judgment of the trial court.

II. STATEMENT OF THE FACTS

William Miller had brought his lunch to school. He had been directed by his teacher to work on a salt relief map during the recess period. There were approximately ten other fifth grade students who remained in the classroom during the recess period to work on their salt relief maps. Velma J. Hall, his teacher, made arrangements with the teacher in the adjoining classroom to look in on her students while she was gone during the recess period. The school had a rule which permitted the teacher to leave those members of her class who chose to remain in the classroom during the recess period if she made provisions for adequate supervision during her absence from the classroom. This rule permitted the teacher to be free from her supervisory duties during the recess period which was from 11:50 o'clock A.M. to 12:20 o'clock P.M. ¹

While the teacher was gone during the half hour recess period, William Miller went over to the desk of Guy Wedge so that he could inspect a box which resembled a fishing tackle box. He had contemplated trading some pencils for the box. When he looked inside the box, he saw a detonator cap which he assumed was a Christmas light. He touched the detonator cap to some batteries in the box. The detonator cap exploded and caused permanent damage to his left eye.

William Miller brought an action for damages against his fifth grade teacher, Velma J. Hall, the principal of the school, Dale H. Griesel, and the School City of East Gary. After submitting his evidence to the jury, the teacher, principal and School City of East Gary moved for a judgment on the evidence under Rule TR. 50 of the Indiana Rules of Civil Procedure. The trial court granted the motion. William Miller filed his motion to correct errors which was overruled. The issues and underlying questions presented by the overruling of William Miller's motion to correct errors are discussed below.

III. STATEMENT OF THE ISSUES

Four issues will be discussed in this opinion. These issues are:

1. Did the trial court err when it sustained the motion for judgment on the evidence under Rule TR. 50?

2. Did the trial court abuse its discretion when it refused to order Dale Griesel and Velma Hall to answer certain discovery questions during the taking of their depositions?

3. Did the trial court commit reversible error when it refused to permit William Miller's counsel to '. . . cross-examine the Defendant, Dale Griesel, as an expert witness by using an authoritative treatise. . . .'?

4. Did the trial court commit reversible error when it sustained objections to cross-examination questions asked by William Miller's counsel?

Our discussion of the first issue will examine the scope of a Rule TR. 50 motion for judgment on the evidence and then, the application of the rule to the evidence by the trial court. The second, third and fourth issues will be discussed separately.

They will be designated as 'Issue Two,' 'Issue Three' and 'Issue Four' in our Statement on the Law section for the convenience of those who are reading this opinion on only one of the four issues discussed.

IV.

STATEMENT ON THE LAW

SCOPE OF RULE TR. 50: The motion for judgment on the evidence was made by the Defendants, Velma J. Hall, Dale H. Griesel and the School City of East Gary at the close of William Miller's evidence in support of his claim. When a Rule TR. 50 motion is made at this stage of the trial, the trial court must consider whether the evidence submitted by William Miller is sufficient to support a verdict if the evidence were submitted to the jury and a verdict returned in his favor. The trial court finds itself one verdict and one motion to correct errors removed from the same test that it is required to make under Rule TR. 59(E)(7), which provides:

'In reviewing the evidence, the court . . . shall enter judgment, subject to the provisions herein, if the court determines that the verdict of a nonadvisory jury is . . . not supported by the evidence, . . .' ²

We would be remiss in discussing the scope of Rule TR. 50 if we did not mention Rule TR. 41(B), which is on the periphery even though it applies only to actions tried by a court without a jury. TR. 41(B) and TR. 50 actually run parallel to one another. TR. 50 applies to jury trials and TR. 41(B) applies to court trials. However, their scope and purpose are identical: to reject from the judicial process those claims that are entirely without merit and to prevent such unmeritorious claims from overburdening the judicial system. The test to be applied in one should not be confused or intermingled with the other. They are different. Basically, the trial court determines the sufficiency of the evidence in Rule TR. 50 motions while the trial court determines the facts in a TR. 41(B) motion. The tenor of the language in TR. 41(B) is in part as follows:

'(B) Involuntary dismissal: Effect thereof. After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court without a jury, has completed the presentation of his evidence thereon, the opposing party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that considering all the evidence and reasonable inferences therefrom in favor of the party to whom the motion is directed, to be true, there is no substantial evidence of probative value to sustain the material allegations of the party against whom the motion is directed. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. . . .'

The distinction between Rule TR. 50 and Rule TR. 41(B) alluded to above is explained in greater detail in Harvey, 3 Indiana Practice § 50.4 at 371:

'. . . (A) distinction arises in the court's approach to the evidence on the motion to dismiss under Trial Rule 41, and a motion for judgment on the evidence. Rule 41(B) states that after plaintiff has presented his evidence, and the motion is made, the court may then determine the facts and render judgment, and if this is done the court shall make findings as provided for in Trial Rule 52(A).

'Under Rule 50 the court does not find facts but determines whether the evidence is sufficient to sustain a verdict for the non-moving party, and if so then the motion is denied, and if not then the court renders judgment on the evidence or judgment thereon notwithstanding the verdict.'

In summary, the scope of a Rule TR. 50 motion for judgment on the evidence approaches the same purpose and applies the same test as Rule TR. 59(E) after a verdict has been rendered and a motion to correct errors has been filed. TR. 41(B) has the same purpose but a different test. TR. 41(B) is only applicable to court trials when there is no jury verdict to consider. The application of Rule TR. 50 is only in jury trials under the...