Nyers v. Gruber

• Decision Date: 01 December 1971
• Docket Number: No. 1,No. 671A107,671A107,1
• Citation: 275 N.E.2d 863,150 Ind.App. 117
• Parties: Amerlia NYERS, Plaintiff-Appellant, v. John GRUBER, Sr. and Ann Gruber, d/b/a Gruber's Supermarket, Defendants-Appellees
• Court: Indiana Appellate Court

Page 863

275 N.E.2d 863

150 Ind.App. 117

Amerlia NYERS, Plaintiff-Appellant, v. John GRUBER, Sr. and Ann Gruber, d/b/a Gruber's Supermarket Defendants-Appellees.

No. 671A107.

Appellate Court of Indiana, Division No. 1.

Dec. 1, 1971.

Joseph O'Meara, Jr., South Bend, for plaintiff-appellant.

James H. Pankow, John R. Obenchain, South Bend, for defendants-appellees.

LOWDERMILK, Judge.

This is an action for damages for personal injuries alleged to have been caused by defendants' negligence in failing to remove, within 24 hours, as required by a South Bend ordinance, snow and ice from the sidewalk in front of defendants-appellees' store.

Plaintiff-appellant does not set out Ordinance 35--5 of the South Bend Municipal Code, but a re sume thereof shows that there was a duty imposed upon defendants by the city to remove show and ice from the sidewalk in front of their store within 24 hours, but it imposed no penalty for failure to do so.

None of the pleadings were set out in the appellant's brief, nor were they paraphrased therein; however, the transcript shows the filing of a second amended complaint for damages and that defendants-appellees separately and severally, pursuant to Rule 12(F), filed motion to strike rhetorical paragraph 1 of the second amended complaint on the grounds the same was insufficient to plead any claim and was immaterial, which motion was sustained by the court. The court handed down a written opinion, giving its reasons for its findings, which opinion is in the words and figures as follows, to-wit:

'Plaintiff's complaint alleges that plaintiff slipped on the sidewalk on ice in front of the defendants' place of business and suffered injuries. The only negligence alleged is that an ordinance of the City of South Bend made it the duties of the abutting property owner to remove snow or ice within twenty-four hours after the snow or ice had fallen or accumulated on the sidewalk and that the ice on the sidewalk had been there more than twenty-four hours.

'Defendants have filed a motion to strike the rhetorical paragraph of plaintiff's complaint which pleads the ordinance.

'Plaintiff, in oral argument, stated that she does not contend that her right of recovery is based upon the violation of the statute as negligence but that the ordinance establishes a standard of reasonable conduct and the negligence of the defendants arise from their failure to comply with the standard of reasonable conduct so established.

'Plaintiff relies on Klott v. Chapman (196 ) 191 Fed.Supp. 484, an opinion by Judge Grant of the United States District Court for the Northern District of Indiana where words were used with reference to Tennessee Statute and ordinance as establishing standard of conduct. This phrase is dicta in that case.

'The case at bar is covered by Corwin (sic) v. Sears-Roebuck and Co., (1955) 125 Ind.App. 624 (129 N.E.2d 131).

'To the extent that plaintiff contends that the City of South Bend ordinance was enacted to establish a standard of conduct as between private individuals, the court notes that the city was not granted the power by the Legislature to create private rights and responsibilities between individuals. pp. 628--629 (129 N.E.2d 131).

'For the reason above noted the defendants' motion to strike is sustained.'

A motion to reconsider was filed by plaintiff-appellant, on which the court granted the right to reconsider and after oral argument sustained his original ruling on the authority of Cowin v. Sears-Roebuck and Co., (1955) 125 Inc.App. 624, 129 N.E.2d 131.

We are of the opinion that the trial court correctly sustained defendants-appellees' motion under Rule 12(F) to strike rhetorical paragraph 1 of plaintiff-appellant's second amended complaint and that his reasons therefor, being set out in his opinion, need not be elaborated upon further by this court. The trial judge's opinion showed 'Plaintiff, in oral argument, stated that she does not contend that her right of recovery is based upon the violation of the statute as negligence but that the ordinance establishes a standard of reasonable conduct and the negligence of the defendants arise from their failure to comply with the standard of reasonable conduct so established.' Therefore, under the case of Cowin v. Sears, Roebuck and Co., supra, rhetorical paragraph 1 of the complaint adds nothing to the complaint and no evidence could be introduced thereunder in the trial of the cause. In fact, the plaintiff-appellant stated in answer to an interrogatory that she based her conclusion that the defendants were negligent as alleged in rhetorical paragraph 2 of her second amended complaint on the fact that defendants failed, within 24 hours, to remove the ice on the sidewalk in front of their place of business.

The Cowin case will be much discussed hereafter in this opinion, which will further bear out that the trial court did not err in striking the first rhetorical paragraph of plaintiff's second amended complaint.

The defendants-appellees filed motion under Trial Rule 12(C) for judgment on the pleadings, which was followed by answer to the second amended complaint for damages in four paragraphs, the first admitting and denying allegations of the second amended complaint and the three other affirmative paragraphs of defense as follows: (2) failure to file the complaint within two years after the alleged injuries; (3) incurred or assumed risk of the plaintiff and contributory negligence; and (4) the plaintiff was guilty of laches.

Defendants-appellees next filed, under Trial Rules 56, their motion for summary judgment, which is in the words and figures as follows, to-wit:

'The defendants, by James H. Pankow, their attorney, hereby move the court to enter summary judgment in their favor, in accordance with the provisions of Trial Rule 56, on the ground that the pleadings, interrogatories propounded to the plaintiff, plaintiff's answers to defendants' interrogatories, and plaintiff's deposition, show that the defendants are entitled to judgment as a matter of law.'

The transcript shows interrogatories propounded to the plaintiff, and shows the answers thereto.

Defendants-appellees in their brief complain of the following:

1. Plaintiff-appellant in her brief failed to set out her second amended complaint or even a summary thereof;

2. In her brief she failed to set out Grubers' answer to her second amended complaint, but summarized it in a manner which is vague and incomplete;

3. Nyers in her brief failed to set out Grubers' motion to strike;

4. Nyers in her brief failed to set out certain interrogatories propounded to her by the Grubers, and she also failed to set out in her brief her answers thereto. Defendants-appellees supplied this latest omission by inserting Interrogatory No. 1 and plaintiff's answer, which are as follows:

'INTERROGATORY NO. 1: Upon what facts do you base your conclusion that the defendants were negligent as alleged in rhetorical paragraph 2 of your second amended complaint?'

(Answer) '1. Upon the fact that defendants failed within twenty-four hours, to remove the ice on the sidewalk in front of their place of business.'

5. Nyers, in her brief, failed to set out the defendants-appellees' motion for summary judgment, or a summary thereof.

6. Nyers, in her brief, failed to set out her motion to correct errors.

Defendants-appellees do not supply any of the omissions with the one exception that they did set out the one interrogatory and the answer thereto.

Defendants-appellees further complain that plaintiff-appellant's brief does not contain pleadings or even a summary thereof, but does state there are a few 'appropriate references to the record'. The motion to correct errors is slightly mentioned, on page 3 of appellant's brief. They further complain that the motion to correct errors does not appear at the beginning of the record.

Defendants-appellees submit that these errors and omissions, taken as a whole, do not constitute even a substantial compliance with the Appellate Rules, and consequently there is no reviewable question presented.

They further contend the trial court did not err in granting defendants' motion for summary judgment and overruling plaintiff's motion to correct errors. The sole allegation of negligence was that the defendants-appellees violated a snow removal ordinance. They further contend the rule is well settled in Indiana and all other jurisdictions except West Virginia that failure to comply with such an ordinance does not constitute negligence should a traveler or passer-by slip and fall and be injured.

Defendants-appellees, under their argument, insisted that the judgment of the court should be affirmed because of plaintiff-appellant's failure to comply with the rules and cited many authorities. In our opinion, these are in point but we shall not, in the interests of space, pass upon them here.

They further complaint that the motion to correct errors does not appear at the beginning of the transcript, but complain that it is buried within the last few pages thereof and cite the case of Thonert v. Daenell (1970), Ind.App., 263 N.E.2d 749. The Thonert case was, in part, overruled in the case of State Board of Tax Commissioners v. Associated Auto & Truck Rental, Inc. (1971), Ind.App., 268 N.E.2d 626, but it was overruled only insofar that the motion to correct errors had to be separately certified.

This court expects the rules of the Supreme Court to be followed; however, we shall not be so technical that we shall deprive a woman of her day in court merely because the motion to correct errors was not first set out in the transcript immediately following the table of contents. We shall, in this instance, in view of the rule of liberal construction of the Rules, consider it a motion to correct errors even though we had to find it in the transcript of the record. ¹

The trial judge, in passing on the motion for summary judgment, entered a judgment which is set out...