Pittman-Rice Coal Co. v. Hansen

• Decision Date: 11 April 1947
• Docket Number: 17532.
• Citation: 72 N.E.2d 364,117 Ind.App. 508
• Parties: PITTMAN-RICE COAL CO., Inc. v. HANSEN.
• Court: Indiana Appellate Court

72 N.E.2d 364

117 Ind.App. 508

PITTMAN-RICE COAL CO., Inc. v. HANSEN.

No. 17532.

Appellate Court of Indiana, in Banc.

April 11, 1947

Appeal from Hancock Circuit Court; Sidney S. Miller, Special Judge.

Action by Marjorie A. Hansen against the Pittman-Rice Coal Company Inc., and another for personal injuries sustained by plaintiff in an automobile collision. Verdict and judgment for plaintiff against named defendant and named defendant appeals.

Judgment reversed and cause remanded with instructions.

Symmes, Flemming & Symmes and Owen S Boling, all of Indianapolis, and Arthur C. Van Duyn, of Greenfield, for appellant.

A J. Rucker, of Indianapolis, and Jonas P. Walker, of Greenfield, for appellee.

DRAPER Judge.

The appellee brought this action against the appellant Pittman-Rice Coal Company, Inc. and its servant, George Norfleet, to recover damages for personal injuries sustained by her in an intersection collision between an automobile operated by her, and a truck owned by the appellant and operated by Norfleet in the course and furtherance of appellant's business.

The jury returned a verdict in favor of the appellee and against the appellant company, but returned no verdict either for or against Norfleet.

Judgment was rendered on the verdict in favor of Norfleet, and thereafter the appellant filed its motion for judgment in its favor notwithstanding the verdict; on the ground that, under the issues, the appellant could only be liable on the theory of respondeat superior; that no negligent acts or omissions other than those on the part of Norfleet were alleged; and since the jury had exonerated Norfleet from any liability or responsibility for appellee's injuries, the appellant was entitled to a judgment notwithstanding the verdict.

This motion was overruled, whereupon appellant filed a motion for new trial, which was also overruled, and judgment was rendered in favor of the appellee and against the appellant for the amount of the verdict.

The appellant assigns error in the overruling of its motion for judgment notwithstanding the verdict and in the overruling of its motion for new trial, which latter questions the sufficiency of the evidence and the legality of the verdict.

The appellee says the motion for judgment non obstante, under these circumstances, is unknown to our practice and therefore presents no question.

The failure of the jury to return a verdict against Norfleet was equivalent to a verdict in his favor; Holbrook v. Nolan, 1938, 105 Ind.App. 75, 10 N.E.2d 744; Inter State Motor Freight System v. Henry, 1942, 111 Ind.App. 179, 38 N.E.2d 909; and the verdict, therefore, stands as one in favor of the appellee and against the appellant company only.

Assuming, as the appellant contends, that the complaint proceeded upon the theory of respondeat superior, and under the allegations thereof the appellant company could be liable, if at all, solely because of the negligent acts of its servant Norfleet, and that the exoneration of Norfleet exonerated the appellant company, could the appellant company raise the question by motion non obstante?

Our statutes provide for a judgment on the pleadings notwithstanding the verdict (Burns 1946 Repl. § 2-2503) and for a judgment on answers to interrogatories notwithstanding the general verdict (Burns 1946 Repl. §§ 2-2023 and 2-2502). Burns 1946 Repl. § 2-2501 provides, however, that: 'When a trial by jury has been had, and a general verdict rendered, the judgment must be in conformity to the verdict. (Our emphasis.)

In Lake Erie, etc., R. Co. v. Reed, 1914, 57 Ind.App. 65, 103 N.E. 127, it was held that the provisions of the above quoted statute are mandatory; the trial court has no discretion in the judgment it may render upon a general verdict; but the judgment must conform to the verdict. In Childress v. Lake Erie, etc., R. Co., 1914, 182 Ind. 251, 105 N.E. 467, it is held that a motion such as the one before us is unknown to our practice and of no effect.

Holbrook v. Nolan, supra, upon which appellant depends, was an action against a master and his servant based upon the negligence of the servant, in which, under the facts pleaded, there could be no responsibility on the part of the master in the absence of negligence on the part of the servant. The jury found for the plaintiff and against the master, but exonerated the servant, and this court, two judges dissenting, reversed with directions to the trial court to sustain the master's motion for judgment notwithstanding the verdict.

In Inter State Motor Freight System v. Henry, supra, decided in 1942, the Holbrook case was referred to and considered, and some doubt was manifested as to its correctness. It was noted, however, that in the Holbrook case no question as to whether a motion for judgment notwithstanding the verdict was proper under the circumstances was presented and the question was, therefore, not decided. We approve and adopt the reasoning of the Reed and Childress cases and on the authority thereof, hold that the motion for judgment notwithstanding the verdict presents no question. Holbrook v. Nolan, supra, insofar as it may inferentially hold to the contrary, is disapproved.

Proceeding to the motion for new trial, the appellee says the appellant waived its right to file same by first filing and obtaining a ruling on the motion non obstante. To support this proposition cases are cited having to do with the chronological relation of motions for new trial and motions in arrest of judgment. The right to file a motion for new trial may sometimes be waived or lost by the assertion of some right inconsistent with the assertion of the right to a new trial, but it could hardly be waived or cut off by the filing of a motion unknown to our practice and therefore, wholly ineffective.

In Inter State Motor Freight System v. Henry, 1942, 111 Ind.App. 179, at page 187, 38 N.E.2d 909, at page 912, this court said:

'It is well established by a number of decisions in this state that where an action proceeds upon the theory that the relation of master and servant exists between the defendants, and that the master is liable solely because of the negligent acts of the servant, that a verdict in favor of the servant and holding the master guilty of negligence relieves not only the servant but the master from liability. Zainey v. Rieman, 1926, 84 Ind.App. 480, 151 N.E. 625; Holbrook v. Nolan, 1937, 105 Ind.App. 75, 10 N.E.2d 744; United Transportation Co. v. Jefferies, 1937, 211 Ind. 226, 5 N.E.2d 524. These holdings are in accordance with the weight of authority in other states. Where a master and servant are joined as parties defendant in an action for injuries inflicted by the servant, a verdict which exonerates the servant from liability for injuries caused solely by the alleged negligence of the servant requires also the exoneration of the master. 35 Am.Jur., Master and Servant, section 534, p. 962; note in 78 A.L.R. 365.

'But a verdict in favor of one servant does not bar a recovery against the master, where the evidence shows that the negligence of another servant who is not joined as a party or who if joined as a party is not exonerated by the verdict, has caused the injury. Nor does the verdict in favor of a joined servant bar a recovery against the master where the latter has himself...