Ray v. Goldsmith

• Decision Date: 06 February 1980
• Docket Number: No. 2-977A360,2-977A360
• Citation: 400 N.E.2d 176
• Parties: William RAY and Anna Ray, Appellants (Defendants Below), v. Herbert L. GOLDSMITH, Randall Dudley, Sr., and Susan Venable, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 176

400 N.E.2d 176

William RAY and Anna Ray, Appellants (Defendants Below), v. Herbert L. GOLDSMITH, Randall Dudley, Sr., and Susan Venable, Appellees (Plaintiffs Below).

No. 2-977A360.

Court of Appeals of Indiana, Second District.

Feb. 6, 1980.

Frank E. Spencer, Indianapolis, for appellants.

Alan H. Cohen, John H. Caress, Indianapolis, for appellees.

SHIELDS, Judge.

Herbert Goldsmith, as parent of Herbert Goldsmith, Jr., and Randall Dudley and Susan Venable, as parents of Randall Dudley, Jr., ¹ brought separate actions under IC 1971, 34-1-1-8 (Burns Code Ed.), ² for the wrongful death of their respective children. The two actions were consolidated in a trial to the court where judgment was entered for Appellees in the amount of $15,000 for the death of each child against William and Anna Ray who bring this appeal.

Appellants argue there was insufficient evidence to warrant judgment for Appellees on either of the theories they advanced: attractive nuisance or statutory negligence. ³

We affirm.

No request was made for findings of fact or conclusions of law and the trial court made none. Where no findings are made the general judgment entered by the trial court is presumed to be based upon findings supported by the evidence, Gilot v. Walsh, (1968) 142 Ind.App. 628, 236 N.E.2d 607, and, if the action of the trial court is sustainable on any theory, it must be affirmed. Indiana & Michigan Electric Company v. Schnuck, (1973) 260 Ind. 632, 298 N.E.2d 436. Further, it is well settled this court will not weigh conflicting evidence nor resolve questions concerning the credibility of witnesses. We may consider only that evidence most favorable to the prevailing party, together with all reasonable inferences to be drawn, and if from that viewpoint there is evidence of probative value to sustain the judgment of the trial court, that judgment will not be disturbed. Foreman v. State ex rel. Dept. of Natural Resources, (1979) Ind.App., 387 N.E.2d 455.

The facts most favorable to the judgment are as follows:

At approximately 7:30 P.M., June 29, 1973, Herbert Goldsmith, residing at 1133 South Harlan Street, Indianapolis, called the Indianapolis Police Department to report that his son, Herbert Goldsmith, Jr., was missing. A search of the neighborhood commenced immediately and the police were soon aided by the Civil Defense. During the search John Wegner of the Civil Defense entered a garage located in the rear of 1117 South Harlan Street. The front door was open and "no boards or anything" were on the entrance to inhibit entry. Inside the garage Wegner searched three unplugged refrigerators. The first two were empty but the third contained the bodies of the Goldsmith boy and Randall Dudley, Jr. Dudley had been staying the week at Appellee Venable's mother's house on 1125 South Harlan. The two boys, age eight and five respectively, died of asphyxiation. The doors on the refrigerators were intact and all three had workable latches on them.

The property at 1117 South Harlan, consisting of a house, garage and yard, belonged to Anna Ray and her brother and three sisters. However, Anna Ray was the only owner exercising control over the property. At the time the house was leased but the garage was in the control of Appellants and used primarily for the storage of maintenance equipment for the property. William Ray had knowledge of the stored refrigerators and Anna Ray, through her entrusting of the inspection and maintenance of the property to her husband, had at least constructive knowledge of the stored refrigerators.

We hold there was sufficient evidence to warrant a finding of negligence per se as a result of Appellants' violation of a municipal ordinance ⁴ and that the violation proximately caused the deaths of the two children. In upholding the judgment, we must address three contentions advanced by Appellants:

(1) whether a violation of the ordinance at issue is negligence per se ;

(2) whether the ordinance was violated;

(3) whether, if the ordinance was violated, the violation was the proximate cause of the deaths of the two children.

(1) Whether a Violation of the Ordinance at Issue is Negligence Per Se

In Indiana a non-excused or non-justified violation of a duty prescribed by statute or ordinance is negligence per se. New York Central Railroad Company v. Glad, (1962) 242 Ind. 450, 179 N.E.2d 571; Blankenship v. Huesman, (1977) Ind.App., 362 N.E.2d 850; Pontious v. Littleton, (1970) 146 Ind.App. 369, 255 N.E.2d 684. Here, there is no evidence of excuse nor justification nor do Rays so argue. For such a violation of a statute or ordinance to be held as negligence per se it must be determined if the statute is applicable, that is, whether it was designed to protect the class of persons in which the plaintiff is included against the risk of the type of harm which has in fact occurred as a result of its violation. W. Prosser, Law of Torts, p. 200, § 36 (4th ed. 1971); see Larkins v. Kohlmeyer, (1951), 229 Ind. 391, 98 N.E.2d 896.

The ordinance is clearly designed to protect the class of persons in which appellees' children, ages five and eight, are included. The ordinance seeks to regulate storage of abandoned refrigerators that are "accessible to children." That the ordinance is a safety measure designed to protect children is clear.

(2) Whether the Ordinance was Violated

Appellants next argue the ordinance was not violated because the refrigerators were not "accessible to children." While there is some evidence regarding William Ray's efforts to secure the garage in which the refrigerators were stored, there is also evidence that children used the garage to play "hide and seek." Further, John Wegner of the Civil Defense stated there were no boards or barriers to prohibit entry to the garage. This is sufficient evidence for the factfinder to determine the refrigerators were accessible to children, thus violating the ordinance.

(3) Whether, if the Ordinance Was Violated, the Violation

Was the Proximate Cause of the Deaths of the Two Children

Lastly Appellants argue that, even if the ordinance was violated, the violation was not the proximate...