National Dairy Products Corp. v. Grant, 867A51

• Decision Date: 31 October 1968
• Docket Number: No. 1,No. 867A51,867A51,1
• Citation: National Dairy Products Corp. v. Grant, 241 N.E.2d 275, 143 Ind.App. 464 (Ind. App. 1968)
• Parties: NATIONAL DAIRY PRODUCTS CORPORATION and Sherman Douglas Allen, Appellants, v. Phillip GRANT, Jr., Appellee
• Court: Indiana Appellate Court

Page 275

241 N.E.2d 275

143 Ind.App. 464

NATIONAL DAIRY PRODUCTS CORPORATION and Sherman Douglas Allen, Appellants, v. Phillip GRANT, Jr., Appellee.

No. 867A51.

Appellate Court of Indiana, Division No. 1.

Oct. 31, 1968.

Rehearing Denied Jan. 7, 1969.

Craven & Healy, Hamill & Price, Indanapolis, for appellants.

Earl C. Townsend, Jr., John F. Townsend, Indianapolis, for appellee.

COOPER, Judge.

This is an appeal from a judgment rendered in the Marion Superior Court, Room #1, for the appellee, plaintiff below, and against the appellants in the amount of $25,700.00 and costs.

The amended complaint in this action was in two pleading paragraphs. The first pleading paragraph alleged a cause of action for personal injuries sustained in a collision between the plaintiff's automobile and a truck owned by the defendant National Dairy Products Corporation which was operated by the defendant Sherman Douglas Allen, based upon the alleged negligence of the defendants. The second pleading paragraph of the complaint alleged a cause of action for property damage arising out of the same collision.

The issues were formed by the complaint and the defendant's answer in general denial. The cause was submitted for trial by jury, which returned its verdict for the appellee herein and judgment was thereafter rendered on the verdict.

The appellants assign as error on appeal the overruling of their motion for a new trial. Said motion, omitting caption, signatures, and the formal parts, is as follows:

'1. Irregularity in the proceedings of the Court by which Defendants were prevented from having a fair trial in this, to-wit: refusal and failure of the Court to rule on Defendants' Motion to have plaintiff examined by an urologist of Defendant's choosing prior to the trial.

'2. The damages assessed are excessive.

'3. The verdict is not sustained by sufficient evidence.

'4. Errors of law occuring at the trial of said cause are as follows, to-wit:

'(a) The court erred in overruling the objection of Defendants to the reading of the conditional examination of Sherman Douglas Allen, which said objection was as follows, to-wit: It was in violation of the 'Best Evidence Rule' since the witness was personally present in the court room at the time of the reading of said conditional examination.

'(b) The trial court erred in giving to the jury at the request of the plaintiff, plaintiff's instruction No. 11, to the giving of which instruction Defendants duly objected within the proper time after the court indicated plaintiff's instruction No. 11 would be given to the jury.

'5. The verdict of the jury is contrary to law.'

The appellants argue under their first cause for a new trial the court's refusal and failure to rule on the defendants' motion to have the plaintiff examined by a urologist of the defendants' choosing prior to the trial. It appears from the record that the appellants submitted an unverified written motion before trial to have the plaintiff examined by a urologist. Such written motion was never ruled upon by the trial court. This court in the case of Lake Erie and Western Railroad Company v. Griswold at al. (1919) 72 Ind.App. 265, 125 N.E. 783, 784, stated:

'A motion to require the plaintiff to submit to a physical examination is addressed to the sound discretion of the trial court. The exercise of such discretion is reviewable on appeal and correctable in cases of abuse. The refusal of such a motion, when the circumstances appearing in the record present a reasonable and clear case for the examination, is such an abuse of discretion as will operate to reverse a judgment. Kokomo, etc., Traction Co. v. Walsh (1915) 58 Ind.App. 182, 108 N.E. 19; City of South Bend v. Turner (1901) 156 Ind. 418, 60 N.E. 271, 54 L.R.A. 396, 83 Am.St.Rep. 200.'

However, we are of the opinion that the record in this case did not present such a reasonable and clear case for the examination that the refusal of the trial court to rule thereon would constitute reversible error. In the case of Wolf Produce and Transp. Co. et al. v. Lang Trucking, Inc. (1965) 136 Ind.App. 571, 575, 203 N.E.2d 308, 310, this court stated:

'There cannot be error committed in the trial court as to a motion, when that motion was never acted upon by the court. Brownlee, Administrator v. Hare et al. (1878) 64 Ind. 311, 317; Zaring v. Home Stove Co. (1932) 95 Ind.App. 215, 217, 183 N.E. 133.'

Furthermore, our Supreme Court has held that a party must abide by a procedure which he has induced the trial court to follow. Where, as in this case, a party proceeds, without the court having ruled on a pending motion, he does so at his own peril, unless he has made a part of the record his request to the court to rule on the motion before he proceeds with his case.

In the case of Thorne et al. v. Cosand et al. (1905) 160 Ind. 566, 67 N.E. 257, after an unfavorable verdict and judgment, the appellant objected to certain procedure. The Supreme Court held that after the proceedings was had, the appellant should not be allowed to question the regularity of the steps he had induced the Court to take. To the same effect, see Dawson v. Shirk (1885) 102 Ind. 184, 1 N.E. 292; State ex rel. Cline et al. v. Schricker, Governor et al. (1950) 228 Ind. 41, 45, 88 N.E.2d 746. 89 N.E.2d 547.

The appellants further allege in cause no. 5 of their motion for a new trial, that the verdict of the jury is contrary to law, in that the appellee was guilty of contributory negligence as a matter of law. In reviewing the evidence in the record, it appears that the accident from which this action arose occurred during the night time, that there was some snow and slush on the streets and that the streets were slick. There was conflicting evidence as to whether the collision occurred in an intersection, or occurred when the appellee struck the appellant's truck as it was coming out of a parking lot, or whether the collision occurred as the result of the appellee striking the appellant's truck while it was parked in the street. Conflicting testimony was introduced as to whether the appellant's truck had its lights on, and the speed at which the appellee was driving his car. Upon examination of the evidence in the record most favorable to the appellee we cannot say as a matter of law that the appellee was guilty of contributory negligence, because the evidence was controverted and conflcting, and as such, the question was one of fact for the trial jury.

Both our Supreme Court and this Court have in many cases stated the rule, in substance, that the question of contributory negligence is one of fact for the jury when the evidence on the point is in dispute, or is conflicting, or is such that reasonable men dould fairly draw different inferences from undisputed facts. New York Central Railway Company v. Milhiser (1952) 231 Ind. 180, 190, 106 N.E.2d 453, 108 N.E.2d 57; Larkins v. Kohlmeyer (1950) 229 Ind. 391, 395, 98 N.E.2d 896; Gamble et al. v. Lewis (1949) 227 Ind. 455, 85 N.E.2d 629; Pennsylvania Railroad Company et al. v. Mink (1966) Ind.App., 212 N.E.2d 784, 787; Leppert Bus Lines, Inc. v. Rayborn (1962) 133 Ind.App. 325, 331, 182 N.E.2d 260. It is only in cases where the facts are undisputed and but a single inference can be drawn therefrom that this court can say as a matter of law that the course of conduct shown constitutes contributory negligence. New York Central Railway Company v. Milhiser, supra, and authorities cited therein.

The appellants next urge as error in their motion...