Newcomb v. Cassidy

• Decision Date: 03 April 1969
• Docket Number: No. 2,No. 1267A106,1267A106,2
• Parties: Mary NEWCOMB, Guardian of Thomas Newcomb, Incompetent, Appellant, v. Andrew CASSIDY, Appellee
• Court: Indiana Appellate Court

Page 846

245 N.E.2d 846

144 Ind.App. 315

Mary NEWCOMB, Guardian of Thomas Newcomb, Incompetent, Appellant, v. Andrew CASSIDY, Appellee.

No. 1267A106.

Appellate Court of Indiana, Division No. 2.

April 3, 1969.

Rehearing Denied May 16, 1969.

Johnson & Carroll, John L. Carroll, Edwin W. Johnson, Charles C. Griffith, Theodore Lockyear, Evansville, for appellant.

Fine, Hatfield, Sparrenberger & Fine, Joe S. Hatfield, Evansville, for appellee.

SHARP, Judge.

During the pendency of this appeal the Appellee filed a Motion to Dismiss the appeal or in the alternative to affirm the judgment below. In this Motion the Appellee contends this appeal should be dismissed because no Motion for New Trial was filed by the Appellant in the court below. The Assignment of Errors was filed in a timely manner, the Summary Judgment being granted on September 7, 1967, and the Assignment of Errors being filed December 6, 1967. Immediately following the effective date of the Indiana Summary Judgment statute there was some question regarding the necessity of filing a Motion for a New Trial after Summary Judgment is granted. Effective April 22, 1968, the Supreme Court of Indiana amended Rule 2--6 to the effect 'A motion for a new trial shall not be appropriate for raising error claimed by reason of the entering of a summary judgment. The sustaining of a motion for a summary judgment and the granting of the same may be assigned and specified separately in the assignment of errors for consideration on appeal.' Obviously, the Appellant has done precisely what is contemplated in the above quoted rule. The only remaining question is whether a Motion for a New Trial was necessary under these circumstances before the effective date of the amendment of Rule 2--6. We hold that clearly a motion for new trial was not necessary to perfect the appeal in this case. In Personnett v. Great Atlantic and Pacific Tea Co., Ind.App., 237 N.E.2d 281, (1968) this court decided that an appeal was properly before this court under precisely these same circumstances. Therefore, the Appellee's Motion to Dismiss Appeal or in the alternative to affirm judgment is hereby overruled.

We are here again called upon to decide the propriety of granting a summary judgment for the Defendant-Appellee under § 2--2524, Burns' Indiana Statutes Annotated, Acts 1965, ch. 90, § 1. For a recent statement by this court regarding Summary Judgment see Mayhew et al. v. Deister et al., Ind.App., 244 N.E.2d 448 (1969), and the cases and authorities cited therein.

This instant case grew out of an automobile accident which occurred May 25, 1963 in Evansville, Indiana, in which the Plaintiff-Appellant's ward sustained personal injuries. The Plaintiff-Appellant filed suit in the Superior Court of Vanderburgh County charging the driver of the car in which the Plaintiff's ward was riding, namely, Gerard Browne, and the driver of the other car, namely, Defendant-Appellee, Andrew Cassidy, with negligence as follows:

'6. At the stated time, the defendant, Andrew Cassidy, was operating an automobile west on Washington Avenue and from a stopped position at a point in front of the premises located at 4600 Washington Avenue, rapidly increased the speed of such automobile to the point that immediately prior to the accident hereinafter described, the defendant, Andrew Cassidy, was operating said automobile at a rate of speed in excess of 75 m.p.h.

'7. At the same time and place, the defendant, Gerard Browne, was operating his automobile, in which plaintiff's ward was riding as a passenger, to the rear of the automobile being operated by the defendant, Andrew Cassidy, and the defendant, Gerard Browne, rapidly accelerated his vehicle from a stopped position in front of the premises at 4600 Washington Avenue to the point that immediately prior to the accident hereinafter described, the defendant, Gerard Browne, was operating said automobile at a rate of speed in excess of 75 m.p.h. The defendant Gerard Browne approached the rear of the automobile being operated by defendant Andrew Cassidy and then suddenly and without warning lost control of his automobile causing same to crash against a telephone pole located on the South side of Washington Avenue sheering in two the automobile in which plaintiff's ward was a pasenger and causing the injury to the plaintiff's ward as hereinafter set forth.

'8. The injury and damage to the plaintiff's ward as hereinafter set forth was caused through the negligence and careless of the defendant, Andrew Cassidy in the following particulars, each of which was a proximate cause of plaintiff's ward's injury and damage:

(a) In reducing the speed of his automobile when he knew, or in the exercise of reasonable care and caution should have known, that the automobile in which plaintiff's ward was a passenger was directly behind his automobile traveling at a rate of speed in excess of 75 m.p.h. so that defendant Gerard Browne had to swerve to the left to avoid colliding with the rear of defendand Andrew Cassidy's vehicle.

(b) In unnecessarily rapidly accelerating his automobile from in front of the premises at 4600 Washington Avenue and starting out in front of the automobile being driven as aforesaid by the defendant Gerard Browne and by his actions thereby inviting said defendant Gerard Browne to follow in pursuit so that the two automobiles raced west on said Washington Avenue at speeds in excess of 75 m.p.h.

'9. The injury and damage to the plaintiff's ward as hereinafter set forth was caused by the wanton misconduct of defendant, Gerard Browne, in the following particulars, each of which was a proximate cause of plaintiff's ward's injury and damage:

(a) In operating said motor vehicle at a speed in excess of 75 m.p.h., a speed so excessive for the condition then and there existing that the danger of injury to the plaintiff's ward was probable.

(b) In unnecessarily rapidly accelerating said motor vehicle from in front of the premises at 4600 Washington Avenue and following in pursuit of the automobile being driven by defendant Andrew Cassidy, and by his actions racing and inviting the defendant Andrew Cassidy to engage in a race so that the two automobiles raced west on said Washington Avenue at speeds in excess of 75 m.p.h.

(c) In operating his automobile in a condition of intoxication, well knowing that he was intoxicated, and with a conscious disregard to the safety of the plaintiff's ward herein.

(d) With a conscious indifference to the consequences, defendant Gerard Browne lost control of his said vehicle while attempting to pass the defendant Andrew Cassidy's vehicle at a high and dangerous rate of speed, to-wit, in excess of 75 m.p.h. on a street that was slick in a residential area while under the influence of intoxicating beverages.' A demand for jury trial was timely filed.

The Defendant-Appellee, Andrew Cassidy, filed answer in admission and denial. The Defendant-Appellee also filed a Motion for Summary Judgment as follows:

'The defendant, Andrew Cassidy, moves the Court, pursuant to Burns' Indiana Statutes, Sec. 22--2524 (2--2524), to enter judgment for the defendant, Andrew Cassidy, upon the ground that there is no genuine issue as to any material fact in this action as to said defendant and that said defendant is entitled to judgment as a matter of law as appears from the depositions under oath of the parties to this action and other witnesses filed in this cause, namely, the depositions under oath of Wilburn Newcomb, Thomas Newcomb, Gerard Browne, Andrew Cassidy, Donald R. Conyer and Marsha Kay Schuble.'

A similar Motion for Summary Judgment in favor of the Defendant-Gerard Browne was overruled by the trial court.

The parties took extensive depositions, all of which were before the trial court when it granted Summary Judgment. These same depositions are before this court and have been examined carefully in the determination of this case. The evidence reflected in each deposition is summarized with all inferences in favor of the Appellant, the party against whom summary judgment was sought. All five of these depositions were placed before the court by the Appellee in support of his Motion for Summary Judgment.

The Appellee, Andrew Cassidy, was 19 years old and had not graduated from high school. On the night of the accident, May 25, 1963, he was driving a 1963 Monza. He had been involved in a series of Juvenile Court proceedings in which his misconduct was in question. The 1963 Monza was in good physical condition. On the night in Cassidy was given a speeding ticket, which ticket resulted in this case. He entered of the accident in this case. He entered a plea of not guilty which was later changed to guilty by a attorney after Casidy entered the Air Force. He had known the Defendant, Gerard (Jerry) Browne, since September 1962. After school on May 24, 1963, he may have gone to Arc Lanes and there saw Jerry Browne and Thomas Newcomb, plaintiff's ward. These three, Cassidy, Newcomb and Browne, had, on May 24, 1963, made plans to go on the river on Saturday morning, May 25, 1963. He had a date in early evening of May 25 and left his date about midnight. He does not remember where he and his date went; it could have been the Surf Club, a drivein movie or possibly a carnival. After taking his date home, he drove the 1963 Monza to Arc Lanes and played pool. Later Cassidy saw one Don Conyer who suggested that they go over to Jerry Browne's house. Cassidy had known Conyer since September 1962. Brown, Cassidy and Conyer were all students at Harrison High School. As Conyer and Cassidy left Arc Lanes they met Browne and Newcomb. Jerry Browne had a 1961 Monza and Newcomb had a Volkswagen truck. Both Monzas had '4 on the floor' and the engine in the rear. It was agreed that Cassidy and Conyer would go to Browne's house so Browne could take his car home and Newcomb could take his truck home. Conyer rode with Cassidy. They all left Arc Lanes parking lot at...