Richardson v. Brown
| Decision Date | 05 May 1977 |
| Docket Number | No. 1--277A21,1--277A21 |
| Parties | Pamela Rose RICHARDSON, Plaintiff-Appellant, v. Michael J. BROWN and Hall Chemical Co., Defendants-Appellees. |
| Court | Indiana Appellate Court |
Mann, Chaney, Johnson Hicks & Goodwin, Buena Chaney, Terre Haute, Harding & Henthorn, Crawfordsville, Malcolm H. Aukerman, Newport, for plaintiff-appellant.
Wallace Campbell, Bunch & Shambach, Don P. Campbell, Covington, Conrad G. Harvey, Crawfordsville, for defendants-appellees.
Plaintiff-appellant, Pamela Rose Richardson, brings this appeal following a jury verdict and judgment in favor of defendants-appellees, Michael J. Brown and Hall Chemical Co.
The facts most relevant to this appeal indicate that Richardson was injured when she was struck by defendants' truck. The plaintiff was riding a bicycle and collided with the truck at the intersection of two alleys in the town of Dana. At the time Richardson was eleven years old.
A complaint was filed in Richardson's name alone against both defendants on September 11, 1975, in the Vermillion Circuit Court. The defendants moved for a change of venue and the Montgomery Circuit Court was selected. The pretrial litigation proceeded normally and trial was set for October 4, 1976. On Friday, October 1, 1976, the Clinton State Bank was appointed Guardian of the Estate of Richardson and Letters of Guardianship were issued by the Vermillion Circuit Court.
On October 4, 1976, the morning of the trial, the plaintiff filed a motion to substitute her Guardian as plaintiff. The motion was denied. On the second day of trial the plaintiff offered the Eltters of Guardianship into evidence and they were refused.
At the close of plaintiff's case the court directed a verdict in favor of defendant, Hall Chemical Co. Following the defendant's case, the jury returned a verdict in favor of the remaining defendant, Michael J. Brown.
Richardson presents the following issues for our review:
(1) Did the trial court commit reversible error by refusing to permit the substitution of a guardian for an incompetent minor?
(2) Did the trial court commit reversible error by rejecting the offered Letters of Guardianship?
It is appellant's contention that prejudicial error was committed when the trial court refused to allow the substitution of the Guardian for her on the morning of the trial. Ind. Rules of Procedure, Trial Rule 17 C lends considerable support to her allegation of error. TR. 17 C, in pertinent part reads as follows:
'(C) Infants or incompetent persons--Unborn, unknown, and unlocated persons. An infant or incompetent person may sue or be sued in any action.
(3) in the name of his representative, if the representative is a court-appointed general guardian, committee, conservator, guardian of the estate or other like fiduciary.
The court, upon its own motion or upon the motion of any party, must notify and allow the representative named in subsection (3) of this subdivision, if he is known, to represent an infant or incompetent person, and be joined as an additional party in his representative capacity. If an infant or incompetent person is not represented, or is not adequately represented, the court shall appoint a guardian ad litem for him.
Beyond question the trial court failed to adhere to the mandatory requirement of allowance of substitution when the guardian attempted to become a party. The above trial rule leaves no latitude for a trial court to exercise any discretion in permitting representation of an incompetent by a guardian.
In light of the particular nature of the proceedings in the case at bar, and the fact that a trial on the merits occurred, we deem it necessary to consider the above error in conjunction with the policy expressed in TR. 61, which reads as follows:
It is well established in Indiana that the appellant has the burden...
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