Scott County School Dist. I v. Asher

• Citation: 312 N.E.2d 131,160 Ind.App. 299
• Decision Date: 04 June 1974
• Docket Number: No. 1--573A85,1--573A85
• Parties: SCOTT COUNTY SCHOOL DISTRICT 1, Defendant-Appellant, v. Harvey E. ASHER, b/n/f Eillene W. McClure, Plaintiff-Appellee.
• Court: Court of Appeals of Indiana

Page 131

312 N.E.2d 131

160 Ind.App. 299

SCOTT COUNTY SCHOOL DISTRICT 1, Defendant-Appellant, v. Harvey E. ASHER, b/n/f Eillene W. McClure, Plaintiff-Appellee.

No. 1--573A85.

Court of Appeals of Indiana, First District.

June 4, 1974.

Rehearing Denied July 11, 1974.

Robert B. Railing, Scottsburg, John M. Lewis, Seymour, for defendant-appellant.

Cline, King & Beck, Columbus, Montgomery, Elsner & Pardieck, Seymour, for plaintiff-appellee.

ROBERTSON, Presiding Judge.

Plaintiff-appellee Harvey Asher, a 16 year old high school student, suffered a severe cut on his right hand while using a ten inch bench saw in shop class. His complaint against the defendant-appellant school district (school) alleged that his injuries were caused by the negligence of the school in installing and maintaining the saw. A jury awarded Asher $95,000 damages. From the overruling of its motion to correct errors the school brings this appeal. For the reasons discussed hereafter we determine that no reversible error exists in the seven issues raised by the school.

ISSUE 1

The school first contends that reversible error existed in the trial court's failure to enter a pre-trial order.

A pre-trial conference, initiated by the court, was held on July 10, 1972. A pre-trial order failed to follow. The Indiana Rules of Procedure, Trial Rule 16(J) states:

'(J) Pre-trial order. The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleading, and the agreements made by the parties as to any of the matters considered which limit the issues for trial to those not disposed of by admissions or agreement of counsel, and such order when entered shall control the subsequent course of action, unless modified thereafter to prevent manifest injustice.' (Emphasis added.)

The school argues that this rule makes it mandatory that, if a pre-trial conference is held, a trial court enter a pre-trial order reciting the action taken and limiting the issues for trial and that the failure to do so constitutes reversible error. Although the school cites no case in direct support, it has referred us to some authoritative comments on Trial Rule 16.

'The power of Rule 16 is embodied in the pre-trial order, which is required of the court and which controls all subsequent proceedings in the case unless it is amended.' (Emphasis added).

Civil Code Study Commission Comments, found at 2 Harvey, Indiana Practice 174 (1970).

'A pre-Trial order is an absolute necessity if the good accomplished by the conference itself is to be preserved for the further disposition of the case and in the trial itself.' (Emphasis added).

Clark, Objectives of Pre-trial Procedure, 17 Ohio St.L.J. 163, 169 (1956).

We agree wholeheartedly with these comments and acknowledge that the trial court may have erred in failing to enter a pre-trial order. However, we do not ascribe reversible error to such failure in this case. Trial Rule 61 provides in part that no error in anything omitted by the court is ground for reversal on appeal, unless refusal to reverse would be inconsistent with substantial justice. The rule further provides that any error not affecting the substantial rights of the parties must be disregarded.

In deciding whether the school's substantial rights were affected we must examine the alleged harm it suffered as a result of the trial court's error. It contends that the lack of a pre-trial order resulted in evidence being admitted which was irrelevant and immaterial in that it went beyond the scope of the allegations of negligence as framed by the complaint. It suggests that had a pre-trial order been entered the issues would have been so narrowed as to preclude the admission of the questioned evidence.

We feel that the proper inquiry when faced with an issue such as this concerns whether or not the purposes of Trial Rule 16 have been so frustrated by the lack of an order as to affect the school's substantial rights. Paragraph (A) of the rule specifies one of the purposes of the conference as being to consider the simplification of the issues. Paragraph (J) provides that the pre-trial order shall recite 'the agreements made by the parties as to any of the matters considered at the conference which limit the issues for trial . . ..' Should such an agreement be reached, it is important that it be embodied in a written order, before trial, so as to control the future course of action and to head off subsequent disputes concerning the matters agreed to at the conference. See Wiggins v. Heim (1947), 332 Ill.App. 403, 75 N.E.2d 381. However, if the parties have not agreed on the limitation of issues, a pre-trial order would naturally not include any recitation concerning same. The school in its brief does not allege that any agreement limiting the issues for trial was in fact reached during the pre-trial conference and in its trial motions directed toward the lack of a pre-trial order there was no concern voiced about limiting the issues for trial. We are of the opinion that where there was no agreement reached at the pre-trial conference concerning the limitation of issues for trial, the school's substantial rights were not affected by the failure of the trial court to enter an order limiting the issues for trial.

ISSUE 2

The school next argues that the trial court committed reversible error in admitting into evidence, over its objection, the depositions of Ellsworth Chandler, the superintendent of appellant-school district, and Riley Caudill, the shop teacher at the school, on the ground of non-compliance with Trial Rule 32(A)(2). We disagree and find that the depositions were properly admitted.

The pertinent part of Trial Rule 32(A) reads as follows:

'(A) Use of depositions. At the trial . . . any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party . . . in accordance with any one (1) of the following provisions:

(1) . . ..

(2) The deposition of a party, or an agent or person authorized by a party to testify or furnish such evidence or of anyone who at the time of taking the deposition was an officer, director, or managing agent, executive officer or a person designated under Rule 30(B)(6) or 31(A) to testify on behalf of an organization, including a governmental organization, or partnership which is a party may be used by an adverse party for any purpose.' (Emphasis added).

If Chandler and Caudill can be considered 'managing agents' their depositions could be used by Asher for any purpose including evidence at trial consistent with the rules of evidence, regardless of whether or not they were available to testify in person. The test as to whether one serves in such capacity to a party so that the party may be deposed through him as managing agent is not title, but the functions performed in furtherance of the party's activities and interests. If the person has general powers to exercise his judgment and discretion dealing with corporate matters he may be deemed a managing agent. In re Manor Investment Co., (S.D.N.Y.1967), 43 F.R.D. 299. In the instant case it cannot be seriously contested that the school superintendent was a managing agent. He was in charge of the general administration of the school district, including the hiring of teachers, the maintenance of physical facilities, and the acquisition of equipment and supplies. As for Caudill, the shop teacher, in looking to his authority with respect to the subject matter of the litigation it appears that he was responsible for determining the type of saw to be purchased for the shop class as well as the safety features to be included thereon. We consider such authority sufficient to deem the teacher a managing agent for the purposes of this case.

The school also argues that the trial court erred in admitting into evidence over objection certain answers to interrogatories on the ground that the persons involved were in the courtroom at all times and could have been called as witnesses. Trial Rule 33(B) rebuts appellant's contention by providing that answers to interrogatories 'may be used to the extent permitted by the rules of evidence.'

The school argues specifically that an answer to one of the interrogatories should not have been admitted because it was beyond the issues made by the complaint. The complaint alleged that the school was negligent in installing and maintaining the saw in a highly dangerous condition. The interrogatory propounded by Asher asked whether at the time of the accident there were any rules or regulations relating to the supervision of shop classes. Trial Rule 15(B) speaks to the procedure to be followed when such an objection is raised. It provides in part:

'If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.'

Although the school raised such an objection, no effort was made by either party to amend the pleadings to conform to the evidence. The school did not make any showing to the trial court that the admission of this evidence would prejudice its defense upon the merits, nor does it present any such showing on appeal. Further, there was no claim of surprise or request for a continuance by the school district so that it could adequately meet and defend this new issue. In Indianapolis Transit System, Inc. v. Williams (1971), Ind.App., 269 N.E.2d 543, the court stated:

'Whether the 'issues' to be tried in any law suit are formed by the pleadings or in a pre-trial order,...