Papp v. City of Hammond

• Decision Date: 19 October 1967
• Docket Number: No. 31132,31132
• Citation: 248 Ind. 637,230 N.E.2d 326
• Parties: Frank PAPP, Appellant, v. CITY OF HAMMOND, Appellee.
• Court: Indiana Supreme Court

Page 326

230 N.E.2d 326

248 Ind. 637

Frank PAPP, Appellant, v. CITY OF HAMMOND, Appellee.

No. 31132.

Supreme Court of Indiana.

Oct. 19, 1967.

Owen W. Crumpacker, Harold Abrahamson, Crumpacker & Abrahamson, Hammond, for appellant.

Eugene D. Tyler, Hammond, for appellee.

MOTE, Judge.

The appeal herein results from the commencement by Appellant of an action below on April 3, 1964 against the Appellee, City of Hammond, a municipal corporation. Omitting the caption and formal parts, the complaint reads as follows:

'Comes now plaintiff and for cause of action alleges and says:

(1) Plaintiff is, and for many years last past, has been the owner and operator of a business, commonly known as a filling station, located at 1261 Summer Street, Hammond, Indiana.

(2) In November of 1962, in connection with a project commonly known as the Columbia Avenue Overpass, the City of Hammond caused State Street and Summer Street in Hammond to be widened and resurfaced. As part and parcel of the project, different portions of State Street and Summer Street, on which Streets plaintiff's station abuts, were either closed or rendered impassable by vehicular traffic for approximately one (1) year.

(3) During this period of time, by reason of plaintiff's filling station being inaccessible from the streets, plaintiff suffered substantial losses in business, and the resulting profits therefrom, resulting in a loss of net profit during the year involved of Six Thousand ($6,000.00) Dollars.

(4) That plaintiff has made demand upon the city for compensation for his losses suffered, as hereinabove described, but that he has received no compensation.

WHEREFORE, Plaintiff prays judgment of and from the defendant in the principal sum of Six Thousand ($6,000.00) Dollars for his costs herein, and for all further just and proper relief in the premises.'

On February 1, 1965 Appellee filed its Motion to Make More Specific, which later was dismissed and which will be mentioned hereafter only indirectly.

Thereafter, on October 15, 1965, Appellee filed Interrogatories and Request for Admission of Fact, at the same time dismissing its said Motion to Make More Specific.

In order to provide certainty, we deem it not inappropriate to set forth Appellee's Interrogatories and the answers thereto, as well as the admission of facts, as follows:

'1. Does the plaintiff admit that on August 21, 1962, the defendant adopted Declaratory Resolution 2204, attached hereto and made a part hereof as Exhibit 'A', by the Board of Public Works and Safety.

Answer: Yes.

2. That plaintiff admits that notice of adoption of resolution accessing (sic) damages for property adjacent to Columbia Avenue Overpass was duly published, a copy of which Notice is attached hereto as Exhibit 'B', of a hearing on September 10, 1962, to hear remonstrances from any person affected by such improvement.

Answer: Yes.

3. That the plaintiff admits that he did not appear or file any written or oral remonstrance at said hearing of September 10, 1962.

Answer: Yes.

4. That plaintiff admits that the only written notice of the claim was the attached Exhibit 'C', a letter written to Eugene D. Tyler, Special Counsel for the Columbia Avenue Overpass on April 30, 1963, and subsequent correspondence and telephone calls between said attorneys.

Answer: Plaintiff does not admit that the only written notice of the Claim was attached as Exhibit 'C', but admits that said Exhibit 'C' was written by his attorney on April 30th, 1963, which was the first written notice, but states that as he is informed and verily believes there were not only subsequent telephone calls between said attorneys but there were also previous telephone calls.

5. Describe precisely the nature of the street obstructions; whether or not they prohibited any vehicular access to plaintiff's premises and together with dates of the total obstruction and if partial obstruction, describe the nature and extent of said partial obstruction of access and the dates thereof.

Answer: State Street and Summer Street were in various stages of impassability during the period of November 1, 1962 through and including November 1, 1963, the exact dates and nature of the obstructions are within the knowledge of the defendant, its engineer and contractor while the exact information is not available to plaintiff.

6. Was plaintiff able to enter the premises with his own vehicle and were other vehicles able to enter the premises? Was said service station under lease from another party and if so, when was said lease terminated?

Answer: Plaintiff and other vehicles were able to enter the premises only during intermittent periods of time and under hazardous conditions. Said station was under lease. Said lease terminated on February 29, 1964, and was not renewed.

7. Plaintiff is requested to set forth below an itemized statement of loss together with method of computation.

Answer: All pertinent books and records of plaintiff were turned over to special counsel for the City of Hammond on or about August 7, 1963, for inspection and analysis and retained to and including December 5th, 1963, and for this reason plaintiff does not deem it necessary or appropriate to provide computations and explanatory information in answer to these interrogatories.'

Subsequently on December 28, 1966, on Appellee's Motion for Summary Judgment which asserted that 'on the basis of the Plaintiff's (Appellant's) answers to interrogatories and requests for admissions of fact * * * together with the Complaint * * * Plaintiff (Appellant) does not have a cause of action', the trial court rendered its finding, decision and judgment, which, omitting the formal parts thereof, is as follows:

'Cause having heretofore been submitted to Court on Defendant's motion for Summary Judgment and Plaintiff's answers to Defendant's Interrogatories and admissions of fact and taken under advisement and set for judgment on this day and the Court being duty advised in the premises sustains said Defendant's Motion for Summary Judgment and the Court now finds for the Defendant.

IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED BY THE COURT that Defendant's Motion for Summary Judgment and Plaintiff's Answers to Defendant's Interrogatories and Admissions of facts and taken under advisement, the Court being duly advised in the premises sustains said Defendant's Motion for Summary Judgment and the Court now finds for the defendant.'

It appears to be incumbent upon us first to dispose of a prevailing question concerning the summary judgment entered by the trial court under the provisions of the Act of 1965, ch. 90, p. 126, Burns' 1966 Special Supp. § 2--2524, to which reference is hereby made, with particular emphasis on paragraphs (c), (d) and (e). In the interest of brevity, we have elected not to quote the language of the Act. It will be observed that a trial court may make piecemeal or total findings and judgments, depending upon the state of the record. We are required to state, however, that similar to directing a jury verdict on proper motion, there can be no open-end to the evidence or facts before the court, or inferences to be drawn thereform, and furthermore, without negation by the plaintiff in sworn answers to interrogatories and admission of facts, the facts alleged in the complaint must be taken as true.

Appellant cites the case of Mitchell v. Pilgrim Holiness Church Corp. (C.A. 7, 1954) 210 F.2d 879, cert. den. 347 U.S. 1013, 74 S.Ct. 867, 98 L.Ed. 1136. The Circuit Court of Appeals for the Seventh Circuit, in an opinion by Judge Swaim, speaking of a summary judgment by the defendant, said at page 881:

'In considering the propriety of the entry of this summary judgment on the motion of the defendant we must remember that all facts properly pleaded by the plaintiff must be accepted as true, Purity Cheese Co. v. Frank Ryser Co., 7 Cir., 153 F.2d 88; and that the facts disclosed by the affidavits and counter-affidavits must be considered in the light most favorable to the plaintiff, Dulansky v. Iowa-Illinois Gas & Electric Co., 8 Cir., 191 F.2d 881, 884; and that, 'A summary judgment upon motion therefor by a defendant * * * should never be entered except where the defendant is entitled to its allowance beyond all doubt.' Traylor v. Black, Sivalls & Bryson, Inc., 8 Cir., 189 F.2d 213, 216.'

Appellant then goes on to say:

'The transcript herein contains the briefs of the parties because they were caused to be filed by the trial court. The matters set forth in defendant's memorandum or brief, insofar as they contain factual representations were not properly before the trial court to be considered in deciding the question or questions presented by the motion for summary judgment. See Barron & Holtzoff, Federal Practice and Procedure, Volume 3, Section 1236, page 161.

Therefore, the trial court concluded, and we believe erroneously, that under no circumstances could plaintiff-appellant recover compensation because of temporary (one year) loss of access to the premises on which he operated his business which, by its nature, required the entry and exit of motor vehicles.'

Obviously, Appellant assumes the position that the answers to the interrogatories, he calls them 'factual representations', were not properly before the trial court and thus could not be considered in the rendition of the finding and judgment of a summary nature under the 1965 Act, citing Barron & Holtzoff, Federal Practice and Procedure, Vol. 3, § 1236, p. 161.

It is true that the so-called Indiana Summary Judgment Act, supra, was enacted in 1965; that it may be somewhat likened to Rule 56 of the Federal Rules of Civil Procedure; and that Federal authorities provide fertile soil for interpretation and application. However, we are unable to contemplate how Appellant's esoteric interpretation of and application to the case at bar would in anywise serve the apparent purpose for its enactment.

Without attempt to compare or to contrast...