Palmer v. State, No. 1--576A80

• Docket Nº: No. 1--576A80
• Citation: 173 Ind.App. 208, 363 N.E.2d 1245
• Case Date: May 31, 1977

Page 1245

363 N.E.2d 1245 173 Ind.App. 208 Gary W. PALMER and Richard Palmer, Plaintiffs-Appellants,
v.
The STATE of Indiana, the City of Tell City, a municipal
Corporation, Joseph Merimee, and Richard M.
Simpson, Defendants-Appellees. No. 1--576A80. Court of Appeals of Indiana, First District. May 31, 1977.

[173 Ind.App. 209]

Page 1246

Gerald G. Fuchs, Raymond P. Knoll, Evansville, for plaintiffs-appellants.

Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, Ralph P. Zoercher, Zoercher, Becker & Huber, Tell City, for defendants-appellees.

ROBERTSON, Chief Judge.

From a grant of summary judgment to defendants State of Indiana, City of Tell

Page 1247

City, and Richard Simpson, plaintiffs-appellants, Gary and Richard Palmer (Palmer), bring this appeal.

Palmer raises the following five issues for our review:

1. Whether the trial court erred in considering as evidence certain supporting affidavits.

2. Whether the trial cour erred in failing to consider or use as evidence certain depositions and State Police Regulations.

[173 Ind.App. 210] 3. Whether the trial court erred in failing to strike the affidavits of Max J. Bruggenschmidt and Joseph B. Merimee, and whether the trial court erred in considering the affidavits as evidence in arriving at its decision.

4. Whether there were genuine issues as to material facts to be determined by the trier of fact and not by the trial court as a matter of law.

5. Whether the trial court erred in failing to designate the issues upon which it found no genuine issues as to any material facts and in failing to expressly direct in writing, entry of judgment as to less than all of the issues.

We affirm in part and reverse in part.

The record reveals the following facts pertinent to this appeal:

On January 5, 1974, at approximately 9:30 P.M., Gary Palmer was sledding on Franklin Street in Tell City, Indiana. Palmer was accompanied by Joseph Merimee, an Indiana State policeman, and Darrell Schauberger. As the three individuals proceeded down Franklin Street on the sled, two cars started up the street. One of the cars made a left turn at an intersection, and Palmer, the sled's driver, quickly swerved to avoid the car, throwing Merimee and Schauberger from the sled. Palmer remained on the sled until he collided with the second car. Palmer was severely injured in the collision and was rushed to the hospital.

On July 23, 1974, Palmer initiated this suit. On August 8, 1974, the complaint was amended to include the State of Indiana as a party defendant. Thereafter, defendants Richard Simpson, City of Tell City, and the State of Indiana moved for summary judgment. The trial court granted all three motions for summary judgment, and Palmer now appeals from the trial court's rulings.

Initially, Palmer contends that the trial court erred in considering six affidavits as evidence in ruling on the motions [173 Ind.App. 211] for summary judgment because there was no order book entry in the record showing that the affidavits were filed or placed in evidence.

We find no merit to this contention. While Palmer correctly asserts that a court speaks through its record, which is its order book, our review of the transcript shows that all the complained of affidavits were referred to and incorporated in the motions for summary judgment, which motions were duly filed and noted in the trial court's order book. We are of the opinion that this procedure was sufficient to satisfy the rule requiring the court to speak through its order book. Thus, we find no error in the trial court's consideration of these affidavits.

Palmer next argues that the trial court committed error by failing to consider as evidence certain depositions and State Police Regulations prior to its ruling on the motions for summary judgment.

Again, this contention is without merit. On January 9, 1976, Palmer filed an entry nunc pro tunc of October 14, 1975, which offered the depositions and regulations in opposition to be motions for summary judgment. The record shows that the trial court did admit into evidence, by order book entry of January 19, 1976, the depositions and regulations offered by Palmer in the motion for nunc pro tunc entry. We can only presume that the trial court considered the depositions and regulations when making its rulings on the motions for summary judgment.

Palmer contends next that the trial court erred in failing to strike the affidavits of Max J. Bruggenschmidt and Joseph B. Merimee.

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Palmer moved to strike the affidavits as being in violation of Trial Rule 56(E) which requires that supporting affidavits, to be sufficient, must be made on personal knowledge, must show that the affiant is competent to testify to the matters included, and must set forth such facts as would be admissible into evidence. The assertion of [173 Ind.App. 212] conclusions of law or opinions by one not qualified to testify to such, by affidavit, will not suffice. Renn v. Davidson's Southport Lumber Co., Inc. (1973), Ind.App., 300 N.E.2d 682; Newell v. Standard Land Corporation (1973), Ind.App., 297 N.E.2d 842; Podgorny v. Great Central Insurance Co. (1974), Ind.App., 311 N.E.2d 640.

The affidavit of Max J. Bruggenschmidt states that the Indiana State Police did not 'sanction, sponsor, promote, supervise, engage in, or control public sledding activities upon any public street or roadway in Tell City, Indiana, through any of its employees, agents, directives or otherwise.' The affidavit of Joseph Merimee states that Merimee was not on duty for the State of Indiana or the Indiana State Police at the time of the accident. Palmer argues that these affidavits contain conclusions of law and fact which were within the province of the trier of fact to decide and thus should not have been considered by the trial court in ruling on the motions for summary judgment.

This Court stated in Reith-Riley Construction Company, Inc. v. McCarrell (1975), Ind.App., 325 N.E.2d 844, that the...