Niemeyer v. Lee, 1267A107

• Decision Date: 04 March 1969
• Docket Number: No. 2,No. 1267A107,1267A107,2
• Citation: 245 N.E.2d 178,144 Ind.App. 161
• Parties: Jenny NIEMEYER, Appellant, v. Thomas W. LEE and Central Soya Co., Inc., Appellees
• Court: Indiana Appellate Court

Page 178

245 N.E.2d 178

144 Ind.App. 161

Jenny NIEMEYER, Appellant, v. Thomas W. LEE and Central Soya Co., Inc., Appellees.

No. 1267A107.

Appellate Court of Indiana, Division No. 2.

March 4, 1969.

B. Michael McCormick, Morris B. Blumberg, Ernest M. Wright, Terre Haute, Clelland J. Hanner, Rockville, for appellant.

John B. McFaddin, Rockville, Dix, Dix, Patrick, Ratcliffe & Adamson, Terre Haute, for appellees.

WHITE, Judge.

Appellant, (plaintiff) was riding in the rear seat of an automobile when it was struck in the rear by a truck being driven in the same direction by appellee Lee for appellee Central Soya Company, Inc. Appellant brought suit against appellees to recover damages for a whip-lash injury she alleged was sustained in the accident. A jury trial resulted in a verdict reading:

'We, the Jury, find in favor of the plaintiff, Jenny Niemeyer, and against the defendants, Thomas W. Lee and Central Soya Company, Inc., and assess the plaintiff's damages in the sum of $ None.'

Judgment was rendered accordingly and appellant's motion for new trial was overruled. This appeal raises the question of whether the verdict was so ambiguous as to be contrary to law thus entitling appellant to a new trial. Also, the question is raised whether the uncontroverted evidence proved 'some damages' thereby entitling the appellant to a new trial because she was 'awarded substantially less recovery than the facts in evidence show her actual injuries and damages to be'.

We find that both these questions must be answered negatively. The instructions to the jury, appellant's memorandum to her motion for new trial, and the holding in Schutz v. Rose, 136 Ind.App. 165, 196 N.E.2d 285 (1964), involving a similar verdict, all lead to the conclusion that the jury's verdict means that appellees-defendants were legally responsible for whatever damages proximately resulted from the accident, but that appellant sustained no damage, and, further, that the verdict was so understood by all concerned.

We also find that the medical evidence most favorable to appellees does controvert all the lay and medical evidence to the effect that the symptoms of which appellants complained (and which may be conceded, arguendo, do actually exist) were the result of the accident. Therefore, we affirm.

And having so said we would fain move on to the resolution of other problems. But the statutes, as interpreted in Hunter v. Cleveland, C., C. & St. L.R. Co., 202 Ind. 328, 334, 174 N.E. 287, 288 (1930), entitle the parties to 'a statement in writing of each question arising in the record * * * and the decision of the court thereon'.

The grounds of the motion for new trial, the overruling of which is the only assigned error, are as follows:

'1. Irregularity in the proceedings of the court by which plaintiff was prevented from having a fair trial in this, to wit:

(a) The court erred in that after the fury (sic) retired to deliberate upon its verdict, and then later returned into court a verdict and finding for plaintiff, without assessing any damages, received said improper verdict under the issues and evidence, and then after receiving said verdict in favor of plaintiff, rendered a judgment on said verdict in favor of defendants.

'2. The damages assessed are inadequate.

'3. Plaintiff was entitled to recovery by her complaint, and did so recover by the jury returning a verdict in favor of plaintiff on her complaint, but awarded substantially less recovery than the facts in evidence show her actual injuries and damages to be.

'4. Error in the assessment of the amount of recovery, in this, that the amount is too small.

'5. The verdict of the jury is not sustained by sufficient evidence.

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

'7. The court erred in accepting an improper verdict from the jury, which found in favor of plaintiff on the question of liability, without assessing any damages for injuries received, when the undisputed evidence established that plaintiff received permanent injuries as a proximate result of said collision.

'8. The court erred in sustaining defendant's motion for judgment on verdict, which said verdict was in fact in favor of plaintiff on her complaint and against defendants.

'9. Error of law occurring at the trial as follows: The Court erred in giving to the jury at the request of defendants, their tendered instructions numbered 1, 4 and 6 separately and severally considered and to the giving of said instructions, plaintiff, Jenny Niemeyer, duly objected within the proper time and made specific objections to each of said instructions, which specific objections were directed to and taken by the Court Reporter after the court had indicated the instructions it would give to the jury and before oral arguments to the jury, said specific objections thereto dictated and taken by the court reporter are a part of the record therein by a special bill of exceptions under and pursuant to Rule 1--7 of the Rules of the Supreme Court of Indiana.'

Appellant's counsel have argued the first eight of these grounds in the following three group headings. Pursuant to Supreme Court Rule No. 2--17(i), the alleged error specified in ground No. 9 has been waived by appellant's failure to discuss it.

'C. THE DAMAGES ASSESSED ARE INADEQUATE'. Grounds 1, 2, 3, and 4 are discussed under this hearing following the assertion that '(t)he question of inadequate damages bears on all * * * three * * * and * * * (they) are supported by one argument'. The essence of that argument seems to be that negligence, proximate cause, freedom from contributory negligence and injury were all established by the evidence most favorable to appellee. Therefore, '(b)ased upon the uncontroverted evidence, as well as that evidence most favorable to Appellees, Appellant contends that, at first blush, the inadequate verdict was motivated by prejudice, passion, or partiality and that a flagrant injustice has been done to her'.

'D. THE VERDICT OF THE JURY IS CONTRARY TO LAW'. Under this caption grounds 1, 6, 7, and 8 are grouped and argued as one. The argument here made is that the verdict conferred no authority on the trial court to enter judgment on it. It is further asserted that: 'An ambiguous verdict, as the one in this case, is contrary to law in Indiana.'

'E. THE VERDICT IS NOT SUSTAINED BY SUFFICIENT EVIDENCE AND CONTRARY TO LAW'. Grounds 5 and 6 are combined for argument under this heading. The argument that the verdict is contrary to law because it is 'not sustained by sufficient evidence' is difficult to follow, especially in light of counsels' acknowledgment of the authority of Thompson v. Town of Ft. Branch, 204 Ind. 152, 156, 178 N.E. 440, 442, 82 A.L.R. 1413 (1931), holding that: 'It is well settled in Indiana that an assignment as cause for a new trial, that the verdict or finding is not sustained by the evidence, or is contrary to law, presents no question to this court as to the amount of damages.' The argument seems to be, however, a reiteration of the argument under Caption C that the damages are inadequate, combined with the reassertion of the ambiguity argument made under Caption D as a prelude to quoting the rule of Paxson v. Dean, 31 Ind.App. 46, 49, 67 N.E. 112 (1903), to the effect that a jury which finds for a plaintiff has no right to disregard undisputed evidence in fixing the amount of the damages awarded.

We believe it a fair appraisal of appellant's whole argument to say that its essence is an attempt to sustain two propositions, and only two propositions, which are:

1. 'Plaintiff was entitled to recovery by her complaint, and did so recover by the jury returning a verdict in favor of plaintiff on her complaint, but (was) awarded substantially less recovery than the facts in evidence show her actual injuries and damages to be.' (This was appellants' ground No. 3 of her new trial motion.)

2. 'The verdict of the jury is contrary to law' (which is her ground No. 6) because it is ambiguous and is not supported by the evidence.

Considering those propositions in inverse order, Supreme Court Rule 1--14B, effective March 1, 1967, requires a memorandum to be filed with any motion for new trial which is based on the grounds that the verdict is not sustained by sufficient evidence or is contrary to law, stating specifically wherein the evidence is insufficient or the verdict contrary to law. Grounds not so specified must be deemed waived. Anderson v. Irwin, Ind.App., 234 N.E.2d 276 (1968). Since neither the memorandum nor its substance is included in the brief, the easy disposition would be to hold that such omission constitutes a waiver of the contention that the verdict is ambiguous or insufficiently supported by the evidence. West v. Ind. Ins. Co., Ind.App., 240 N.E.2d 86 (1968). Rule 2--17(f), however, casts some doubt on our power to question the sufficiency of the appellant's summary statement of the record when the appellee has not cured deficiencies by making necessary additions in his brief. ¹ Therefore we have searched the record and find that in the memorandum insufficiency of the evidence is argued at length but ambiguity of the verdict is never mentioned. On the contrary, in support of both her ground No. 5 (that the verdict is not sustained by sufficient evidence) and her ground No. 6 (that the verdict is contrary to law) appellees' counsel, in their memorandum, appear to understand and treat that part of the verdict which finds in favor of the appellant as a finding that appellees were negligent, and that part assessing damages in the sum of none dollars as the jury's finding of no injury in deliberate and illegal rejection of uncontroverted evidence.

We note that appellant's instruction No. 10, which was given, 'instructs you (the jury) that if you find that the plaintiff, Jenny Niemeyer, should recover in this action, then it is your duty to fix the amount of damages as shown by a preponderance of the evidence relevant...