Reinhart v. Ideal Pure Milk Co.

• Decision Date: 14 November 1963
• Docket Number: No. 2,No. 19742,19742,2
• Parties: Elizabeth M. REINHART, Appellant, v. IDEAL PURE MILK COMPANY, Inc., Appellee
• Court: Indiana Appellate Court

Page 655

193 N.E.2d 655

135 Ind.App. 338

Elizabeth M. REINHART, Appellant, v. IDEAL PURE MILK COMPANY, Inc., Appellee.

No. 19742.

Appellate Court of Indiana, Division No. 2.

Nov. 14, 1963.

John G. Bunner, Evansville, for appellant.

Isadore J. Fine, Joe S. Hatfield, Charles H. Sparrenberger, Eugene P. Fine, Evansville, for appellee.

KELLEY, Judge.

This action was duly commenced by appellant against the appellee and two of its employees, seeking damages for personal injuries allegedly sustained by reason of the negligence of appellee and said employees. In material substance, appellant's amended complaint charged that two named employees of appellee, 'while in the course of their employment' with appellee ran down a sidewalk on Walnut Street in the city of Evansville, Indiana, and at the intersection of said sidewalk with the sidewalk on Eighth Street in said city, ran into appellant and struck her with great force as she walked along said sidewalk on Eighth Street, knocking her down to the sidewalk and 'causing her severe bodily injuries', as alleged. The amended complaint counted upon nine grounds of negligence.

The issues, appropriately closed, were submitted for trial by jury. At the conclusion of appellant's evidence, the appellee moved the court to instruct the jury to return a verdict in its favor and requested the court to give 'Instruction No. A', submitted with the motion. The court sustained appellee's motion for a directed verdict and gave said 'Instruction No. A'. The instruction advised the jury that the court had concluded that appellant's evidence was not sufficient to sustain the material allegations of her complaint and instructed the jury to return the form of verdict prepared for its convenience. The prepared verdict read: 'Upon the instruction of the court, we, the jury, find for the' appellee.

The action was dismissed as to the two employees.

The jury returned the said verdict and the court thereupon rendered judgment that appellant take nothing and that appellee recover its costs. Appellant's motion for a new trial was overruled and this appeal followed.

Appellee urges that the specification of appellant's motion for a new trial charging error in the court 'in sustaining the defendant's (appellee's) motion * * * to instruct the jury to return a verdict for the' appellee, and in giving 'Instruction No. A', is insufficient and presents no error because it does not predicate error 'upon the action of the trial court in directing a verdict' or show specific objections to the giving of said instruction, all as provided by Rule 1-7.

The last clause of said Rule 1-7, is in these words:

'The court's action in directing or refusing to direct a verdict shall be shown by order book entry. Error may be predicated upon such ruling or upon the giving or refusing to give a written instruction directing the verdict.'

The record herein discloses that the court sustained appellee's motion for a directed verdict and 'reads to the jury Instruction No. A'. It further appears from the record that said 'Instruction No. A' was a written instruction and directed a verdict for appellee. Thus the record shows the 'court's action in directing * * * a verdict' and that it gave a 'written instruction directing the verdict.' We do not conceive that said Rule 1-7, as phrased, contemplates or requires specific objections to a written instruction directing a verdict. As the rule is worded, the available error, as a cause for a new trial, lies in the 'giving' by the court of a 'written instruction directing the verdict' and not in the giving of an instruction over 'specific objections', as provided in the first clause of said Rule 1-7. We are inclined that the effect of the said quoted last clause of said Rule 1-7 was to particularize and withdraw instructions directing a verdict from the requirements laid down in the first clause of the rule for the assertion of error with respect to other instructions. We think that the specification in appellant's motion for a new trial charging error in the giving by the court of the 'Instruction No. A' directing a verdict for appellee is sufficient to present the question.

The primary question sought to be presented for determination on this appeal is whether there was some substantial evidence upon which the jury might have returned a verdict for appellant. Appellant's whole argument is devoted to her contention that there was evidence which should have gone to the jury in support of two issues she asserts were tendered by her amended complaint, namely, (1) that the two employees of appellee were acting within the scope of their employment at the time of the occurrence resulting in a appellant's injuries for which she seeks to recover; and (2) that appellee was guilty of negligence 'in failing to warn and instruct its employees with respect to the necessary care in performing their duties on or near the public sidewalk adjacent to appellee's place of business, knowing that its business was transacted daily on or near said sidewalk.'

The pertinent evidence as found in the briefs of the parties establishes, in substance, the following material facts. The appellee had, among others, two employees named Henry Hudson and Donald Dorris. Hudson was employed in a 'supervisory capacity'. Dorris was employed in the shipping department.

The appellee is engaged in the processing and distributing of milk products in Evansville, Indiana, with principal office at 201 S. E. Eighth Street in said city. The building in which appellee carries on its business is so located that one of its sides extends along Walnut Street and another side extends along Eighth Street in said city, and said sides come to a point at the intersection of said Eighth and Walnut streets. The loading dock for the loading of trucks at appellee's plant is located on said Walnut Street, some twenty-five feet back from the corner of said building at the said intersection of Walnut and Eighth streets. There is a public sidewalk on said Walnut Street which runs along the side of appellee's building and extends to and intersects with a public sidewalk running along the side of appellee's building on said Eighth Street. Appellee's building is flush with the inner edge of the two sidewalks at the point of their intersection. It is at this point of these intersecting sidewalks that the occurrence took place which appellant testified resulted in her personal injuries.

On September 15, 1959, at a time between 12 o'clock noon and fifteen minutes thereafter, a truck was being loaded at appellee's said loading dock on Walnut Street. Said Donald Dorris was putting the milk on a conveyor belt to the truck, one Dick Owens was loading the milk on the truck, and said Henry Hudson was standing on the Walnut Street sidewalk 'supervising the job.' Dorris was paid on an 'hourly basis' and he 'had no specific time to go to lunch. I went then things were caught up so that I could get away.' Hudson was paid 'on a flat monthly rate * * * it didn't matter how many hours I worked, I got the same rate.' The latter 'Had no lunch hour * * * I had no specific time to eat lunch, I ate lunch any time I could get it.'

At approximately 12:15 o'clock P.M., on said September 15, 1959, Dorris 'put the last milk on the conveyor' and 'at the time this took place I had punched the time clock and I was on my way to lunch * * * I had already punched out.' When he 'got ready to get off the loading dock' there were 'a few joking remarks--kidding remarks passed back and forth' between him and Hudson. Then Dorris 'jumped off the dock' and 'started running' toward Hudson. The latter, as appellant's witness, said: 'I guess you would say at that time Donald Dorris was chasing me. We were engaged in horseplay, that would be a term for it.' They ran on the sidewalk from the point of the loading dock on Walnut Street to the corner where the sidewalks of Eighth Street and Walnut Street intersected, a distance estimated in the evidence at twenty-five feet.

At the time Dorris was 'chasing' Hudson on the Walnut Street sidewalk, appellant, then sixty-five years of age, was walking along and upon the Eighth Street sidewalk and was approaching the corner of appellee's building at the intersection of said sidewalks. When she was 'about three or four steps' from the corner, Hudson, then about five or six feet in front of Dorris and being 'chased' by him, 'came around the corner' and ran into the appellant, knocking her down to the sidewalk. Hudson picked her up, took her 'inside the office', and then went upstairs and reported the matter to a Mr. Ashby and Mr. Fischer. Under instructions from the latter, Hudson remained upstairs until appellant was removed from the office, which was a period of time of some fifteen minutes.

After the aforesaid occurrence, Dorris 'went across the street to lunch.' Hudson testified that after the occurrence 'maybe fifteen minutes or more afterwards' he returned to the 'conveyor belt'; that 'had I not struck Mrs. Reinhart, I would have returned to the conveyor belt. The job of loading was not yet quite finished. * * * After this accident took place we went ahead and finished the work. * * * My work was back at the loading dock and that is where I returned and finished after this took place. * * * My work or my duties for Ideal Pure Milk Company did not require me to go up Walnut Street to the corner of Eighth and Walnut Streets on this occasion.'

It seems clear from the referred to evidence, and appellant makes no argument to the contrary, that at the time and place of the collision with the appellant, said Dorris was not acting within the scope of his employment nor performing any duty or service for appellee incidental to or connected therewith. He had 'punched out' by the time clock and was on his way to lunch. While on his way, he engaged in 'horseplay' with Hudson and was 'chasing' the latter by running after him upon the...