Phebus v. Steiner

• Court: Indiana Appellate Court
• Writing for the Court: PRIME; FAULCONER
• Citation: Phebus v. Steiner, 206 N.E.2d 390, 138 Ind.App. 240 (Ind. App. 1965)
• Decision Date: 27 April 1965
• Docket Number: No. 1,No. 19979,19979,1
• Parties: Frederick R. PHEBUS, II, Appellant, v. Margaret Jane STEINER, Appellee

Page 390

206 N.E.2d 390

138 Ind.App. 240

Frederick R. PHEBUS, II, Appellant, v. Margaret Jane STEINER, Appellee.

No. 19979.

Appellate Court of Indiana, Division No. 1.

April 27, 1965.

Rehearing Denied June 21, 1965.

[138 INDAPP 241]

Arch N. Bobbitt, Indianapolis, for appellant.

C. G. Ball, Lafayette, for appellee.

PRIME, Judge.

Appellant filed his complaint in two paragraphs for personal injuries and property graphs for personal injuries and property damage against the appellee alleging certain acts of negligence on the part of the appellee. The action arose out of a collision between the appellant's motorcycle and appellee's automobile on the west side of the traveled portion of State Highway No. 25, at a point just outside of the west city limits of the City of Delphi, Indiana.

Trial was had by jury, which returned a verdict for defendant-appellee, accompanied by answers to seven interrogatories tendered by the defendant-appellee and submitted by [138 INDAPP 242] the court. Accordingly, judgment was rendered on the general verdict in favor of the defendant-appellee on both paragraphs of the plaintiff-appellant's complaint. Appellant duly filed his motion for new trial, which was overruled, and this appeal followed.

Specification of error contained in the motion for new trial, consisted of, inter alia, 'alleged error of law occurring at the trial' in that:

'c. The Court erred in the following respect: The defendant offered before the commencement of final arguments before the jury certain interrogatories, seven in number, to be answered by the jury in connection with their general verdict. * * * After objections the Court did not indicate to counsel whether or not the interrogatories would be submitted to the jury. Attorneys for the parties were admonished that while they could comment on instructions, the court had indicated he would submit to the jury in their final arguments, they could not mention or discuss the proposed interrogatories. Counsel on both sides gave their final arguments. After the noon recess and after final argument, the Court then indicated that the interrogatories would be submitted to the jury as requested by defendant's counsel.'

In essence, the appellant is arguing, that the trial court erred in failing to indicate before the final argument to the jury, whether or not he would submit interrogatories tendered by appellee, and by ruling that counsel could not comment upon tendered interrogatories during counsel's final argument to the jury, thus depriving appellant, to his prejudice, 'of his right to comment upon interrogatories and to array the evidence bearing upon them.'

The chronology of events occurring at the trial germane to said interrogatories is as follows: On March 15, 1962, at 12:00 P.M., at the close of all the evidence, final instructions from both sides were tendered. At 3:00 P.M. on the same afternoon, appellee filed her written request together with tendered Interrogatories Nos. 1 to 7 for submission to the jury, to be answered in connection with its general verdict. [138 INDAPP 243] Appellant then 'formally objects to submission of interrogatories orally upon the record,' and the court deferred hearing of argument upon the submission of all or any interrogatories until 8:30 A.M., March 16, 1962. Further, the court indicated that it would give Court's Instructions Numbered 1 to 17; Court's Instruction No. 17 indicating interrogatories were being submitted to the jury to be answered 'in the event you return a general verdict.' On March 16, 1962, at 8:30 A.M., the court entered the following order:

'Come now the parties in person and by counsel and the court hears further argument of counsel upon the submission of tendered defendant's interrogatories and the court now reserves its ruling until the conclusion of the oral argument upon evidence as presented to the jury and does thereby rule against comment upon tendered interrogatories during counsel's argument to the jury.'

Counsel on both sides gave their final arguments to the jury. It appears that at this point there was a noon recess, after which the court returned and indicated that the interrogatories would be submitted to the jury as requested by defendant-appellee's counsel. As was noted earlier, the interrogatories were seven in number, no one of which contained more than a single sentence. They requested simply a 'yes' or 'no' answer. It appears that the court had these interrogatories in his possession for almost a complete day, or twenty-four hour period, before ruling on their submission to the jury. It further appears that on the morning of March 16, 1962, when the court ruled against comment during final argument, the interrogatories had been in his possession since 3:00 P.M. of the prior afternoon.

Appellee argues at the outset that because of the failure of the appellant to make timely and proper objection to the action of the trial court in this matter, no question was saved for appeal. We deem the argument of appellee to be untenable for the following reasons:

The error here urged was a ruling by the court adverse to [138 INDAPP 244] the appellant, on a question of law. Prior to the adoption of Supreme Court Rule 1-5, the proper procedure for appellant would have been to except to the court's ruling. Rule 1-5 of the Supreme Court of Indiana, 1964 Edition, provides as follows:

'The record need not show exceptions to adverse actions, orders or rulings of the court in order to present alleged errors with respect thereto, for the purposes of a motion for a new trial or on appeal. This rule is not intended to affect in any manner the present practice in regard to objections.

'Where, on the examination of a witness, an offer to prove is made, the same may be made either before or after the ruling of the trial court on the objection to the question propounded. Adopted April 14, 1940. Effective September 2, 1940. Amended and effective November 30, 1949.'

Since Rule 1-5, Supra, was in full force and effect at the time the trial court made its ruling, the procedure in order to save the error for the purpose of a new trial or on appeal was governed by the provisions of the rule. Appellant was, therefore, not required to enter his exception at the time the ruling was made, but could present the error in his motion for a new trial, which he did. Therefore, we hold that the error was saved for appeal.

The precise question presented for review is whether or not the trial court committed reversible error, by its ruling and specific order, denying appellant's counsel a right under the circumstances here present, to read the interrogatories to the jury and array the evidence thereto. This question appears to be one of first impression in this State.

The law is well settled in Indiana that where special interrogatories are submitted to the jury, it is proper for counsel to read and comment on them to the jury, and to array the evidence necessary to be considered in answering them. Gresley v. State ex rel. Neireiter (1890), 123 Ind. 72, 24 N.E. 332; Clear Creek Stone Co. v. Carmichael (1906), 37 Ind.App. 413, 73 N.E. 935; Pittsburgh, etc. R. [138 INDAPP 245] Co. v. Lightheiser (1907), 168 Ind. 438, 78 N.E. 1033; Vanosdol, Receiver v. Henderson, Admr. (1939), 216 Ind. 240, 22 N.E.2d 812. It should be noted that in the above cited cases error was predicated upon the fact that the trial court had allowed counsel to read the interrogatories to the jury and to array the evidence having a bearing upon them. In the case at bar counsel was prohibited by order of court from reading and commenting upon the tendered interrogatories.

In Chestnut v. Southern Indiana R. Co. (1901), 157 Ind. 509, 62 N.E. 32, our Supreme Court held that error could not be predicated upon the action of the trial court in refusing to permit counsel to read to the jury interrogatories submitted, under Acts 1897, Ch. 85, Sec. 1, p. 128, being Sec. 2-2022, Burns' 1946 Replacement, where it appeared that the appellant had been accorded the opportunity of arguing from memory in respect to the interrogatories and to fully argue all the evidence bearing upon them. In the case at bar counsel was not even afforded this opportunity, but, on the contrary, was barred by specific order of court from making any comment upon tendered interrogatories.

[4, 5] The Acts of 1881 (Spec. Sess.), Ch. 38, Sec. 337, p. 240, Sec. 2-2011, Burns' 1946 Replacement, require the court, where written instructions have been properly tendered by either party before the commencement of the argument to the jury, to indicate before the argument which instructions will be given to the jury. The purpose of this provision is to give counsel an opportunity to examine the tendered instructions, file objections thereto, and to properly argue them to the jury. In the case of Southern Ind. Gas, etc., Co. v. Beard (1924), 81 Ind.App. 272, 143 N.E. 173, this court held that where counsel had made a proper and timely request before the commencement of the argument, it was...