Wells v. Gibson Coal Co.

• Decision Date: 26 August 1976
• Docket Number: No. 1--1275A212,1--1275A212
• Citation: 170 Ind.App. 445,352 N.E.2d 838
• Parties: Judith L. WELLS, Plaintiff-Appellant, v. GIBSON COAL COMPANY, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 838

352 N.E.2d 838

170 Ind.App. 445

Judith L. WELLS, Plaintiff-Appellant, v. GIBSON COAL COMPANY, Defendant-Appellee.

No. 1--1275A212.

Court of Appeals of Indiana, First District.

Aug. 26, 1976.

Wallace, Campbell, Bunch & Shambach, Covington, for plaintiff-appellant.

Dix, Patrick, Ratcliffe & Adamson, Terre Haute, McFaddin & McFaddin, Rockville, for defendant-appellee.

LYBROOK, Judge.

Plaintiff-appellant, Wells, appeals from the negative judgment in her negligence action for damages arising out of a vehicle-truck collision with the driver-agent of defendant, Gibson Coal Company. Plaintiff submits two issues for review.

(1) Did the trial court commit reversible error when it admitted into evidence the deposition of a nonparty witness

without a showing that the person was unable to appear?

(2) Did the Court erroneously give an instruction on sudden emergency which was a misstatement of the law?

The evidence most favorable to the judgment as it relates to these particular issues is: At the conclusion of the plaintiff's evidence, the defendant presented its only evidence, a deposition of Duane Thomas, the driver involved in the accident. Plaintiff objected to the admission of the deposition, arguing that there was no evidence indicating that the witness was unable to personally testify at trial.

The trial judge conferred with both counsel in the absence of the jury and upon resumption of the trial, the deposition was admitted into evidence without further objection of plaintiff.

At the conclusion of the trial, the court gave defendant's tendered instruction on sudden emergency. Plaintiff objected to this instruction as a misstatement of the law of sudden emergency.

Following the verdict and judgment in favor of defendant, plaintiff timely filed her motion to correct errors which was overruled.

I

Plaintiff first contends that the trial court erred when it allowed a witness's deposition to be read into evidence when the defendant failed to prove that the witness was not available for trial. Plaintiff's objection was:

(Plaintiff's Counsel): 'Now, your Honor, at this time the state of the record is that Duane Thomas is a resident of Montezuma, Indiana. Now, if there can be some showing here that they can't get Duane Thomas here and he's on vacation or out of state, in a hospital, we'll certainly be glad to cooperate and let the deposition be read, but this man is their man, their employee, Judge, and I think we're entitled to some explanation as to why he isn't here in this court to testify to this jury.'

(Defendant's Counsel): 'I would suggest to the Judge the physical complaints set out on page 3 in connection with the questions of Mr. Dowd and also the physical complaints that he mentions on page 16 as he related to Mr. Dowd when we took his deposition. This is not an employee of the company at this time.'

(Plaintiff's Counsel): 'Yes, but they've admitted that they're bound by his acts, Judge. He's their agent and in Trial Rule 31, if they'll show us why they can't get him here and tell these people--' ¹ (interrupted).

The Court: 'I appreciate that. Let's take a short recess while we determine some legal matters.'

The Indiana Rules of Procedure, Trial Rule 32(A)(3) states:

'The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:

(c) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or'

A case which dealt with this particular trial rule is, Schoeff v. McIntire (1972), 153 Ind.App. 289, 287 N.E.2d 369, wherein defendant objected to the use of plaintiff's deposition taken by the defendant because there was an inadequate showing that the plaintiff was unable to attend. There was testimony of the plaintiff's physician that he advised her to remain at home because of her special medical condition. Based on these findings, this court concluded the record was sufficient to justify the trial court in finding that the witness was unable to attend for reasons of sickness and infirmity. Further, the court found:

'Such a finding was implicit in the trial court's admission of said deposition and is not reversible error.' 287 N.E.2d 369 at 374.

In short, this court has apparently established a discretionary standard for this particular trial rule.

For this court to find an abuse of discretion or reversible error, it is first necessary that prejudice be shown by the appellant. Jessop v. Werner Transportation Co. (1970), 147 Ind.App. 408, 261 N.E.2d 598. If the appellant is able to show prejudice, it is then his burden to prove that the error of judgment was clearly against the logic and the natural inferences to be drawn therefrom. Dunbar v. Dunbar et al. (1969), 145 Ind.App. 479, 251 N.E.2d 468.

In the case at bar the deposition itself contains explicit statements emphasizing this particular witness' inability to attend. This court does not believe that evidence to support the court's determination must be presented outside of the deposition where sufficient explanation is contained within the deposition. Although in Schoeff, supra, a doctor corroborated the plaintiff's statements that she was unable to attend, this court reminded the appellants that the trial court's determination of admissibility was impliedly a finding that there was sickness or infirmity. Therefore, it is necessary to establish an abuse of discretion to demonstrate reversible error, which the appellants in Schoeff and appellant in this case failed to do.

II.

Plaintiff next contends that the trial court erred when it gave defendant's tendered instruction on sudden emergency. Plaintiff argues that the instruction was a misstatement of the law of sudden emergency.

Each party is entitled to have his theory of the issues presented to the jury by his instructions, Indianapolis Horse Patrol, Inc. v. Ward (1966),247 Ind. 519, 217 N.E.2d 626, provided that the instructions are proper interpretations of the law and are...