Wolff v. Slusher, No. 2--1073A214

• Docket Nº: No. 2--1073A214
• Citation: 314 N.E.2d 758, 161 Ind.App. 182
• Case Date: August 06, 1974
• Court: Court of Appeals of Indiana

Page 758

314 N.E.2d 758 161 Ind.App. 182 Kenneth WOLFF et al., Appellants,
v.
Melvin SLUSHER, Appellee. No. 2--1073A214. Court of Appeals of Indiana, Second District. Aug. 6, 1974.

[161 Ind.App. 183]

Page 759

Glickfield & Graves, Robert Graves, Jules S. Walker, Marion, for appellants.

Ray & Milford, John B. Milford, Marion, for appellee.

SULLIVAN, Presiding Judge.

This is an appeal from a judgment totalling $3,000.00 awarded appellee Slusher as plaintiff in a replevin action. The issues involve alleged defects in the form of the verdict, excessive damages, an allegedly erroneous instruction, and prejudicial misconduct by counsel during closing argument.

Appellants Kenneth and Geneva Wolff are entireties owners of a certain farm in Grant County. Under a lease agreement, Samuel Blinn farmed certain fields of the farm, but the farm residence was occupied by the Wolffs.

[161 Ind.App. 184] Slusher owned a portable sawmill operation and was hired by Wolff to clear timber on a portion of the farm.

The oral contract entered into between Wolff and Slusher provided the Slusher would pay Wolff $800.00 for the timber and would remove the debris remaining after the operation. Slusher denied that he was told that any of the farm had been leased to another party. A few of the trees were located in a filed of growing corn, and Wolff gave permission for Slusher to make an access path through the corn in order to remove the logs. Slusher was not to cut any of the walnut trees on the property.

The timber cutting operation began on August 30, 1968. Slusher's equipment consisted primarily of a portable sawmill, a power unit, a tractor and a forklift. The cutting proceeded until October 19, 1968. On that day Slusher arrived to find that the gate to the plot in which he was working had been locked. It was later revealed that Blinn, the lessee, had locked the gate because of alleged damage to a fence and

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to the growing corn crop. Slusher removed the gate and proceeded to the field. Blinn and Wolff, meanwhile, procured the services of a Deputy Sheriff who ordered Slusher off the premises.

Slusher filed his complaint on October 28, 1968 as an action in replevin against Kenneth Wolff and Samuel Blinn to regain possession of his sequestered equipment and for damages for wrongful detention. He filed a $20,000.00 bond and was allowed to remove the equipment from the field on or about October 31, 1968.

Subsequently, Wolff filed a counterclaim, denominated a 'cross-complaint' for damages, claiming that Slusher cut trees other than those authorized, and also that Slusher had failed to clean up the property after removing the timber. Blinn filed a counter-claim for destruction of crops, fences and failure to clean up the premises.

More than a year later, on January 20, 1970, Blinn and Wolff filed their answers to Slusher's complaint. Pre-trial [161 Ind.App. 185] conference was held on September 3, 1970 and the case was set for trial. Various delays occurred until April 24, 1972, when Geneva Wolff filed a motion to be joined as a 'cross-complainant'. This motion was granted and Geneva joined with Wolff in filing an Amended Counter-Claim. A second pre-trial conference was held March 23, 1973. Trial began April 17, 1973. ¹

After submission of evidence, the following verdict forms were presented to the jury by instruction of the court:

'The Court is submitting to you five forms of verdict you may return in this case. The verdicts read as follows:

1. We the jury, find in favor of the plaintiff and against all the defendants and assess the plaintiff's damages in the sum of $_ _.

2. We the jury, find in favor of the plaintiff and against the defendant, Kenneth Wolff, and assess the plaintiff's damages in the sum of $_ _.

3. We the jury, find in favor of the plaintiff and against the defendant, Samuel Blinn, and assess the plaintiff's damages in the sum of $_ _.

4. We the jury, find in favor of the counter claimants, Kenneth Wolff and Geneva Wolff and against the plaintiff on defendants', Kenneth Wolff and Geneva Wolff's counter claim and assess the defendants Kenneth Wolff and Geneva Wolff's damages on their counter claim in the sum of $_ _.

5. We the jury, find in favor of the counter claimant, Samuel Blinn, and against the plaintiff on defendant, Samuel Blinn's counter claim and assess the counter claimant, Samuel Blinn's damages on his counter claim in the sum of $_ _.

Return the verdict with you into Open Court.'

The jury returned two verdicts in favor of Slusher, as follows:

'We, the jury, find in favor of the plaintiff and against the defendant, Kenneth Wolf, and assess the plaintiff's damages in the sum of $2000.00.

We, the jury, find in favor of the plaintiff and against all [161 Ind.App. 186] the defendants and assess the plaintiff's damages in the sum of $1,000.00.' ²

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Judgment was entered on these 'verdict'. ³

ISSUES

Of the issues raised by the appellants, the following are pertinent to our determination.

1. Were the jury verdicts defective in failing to make a finding on the counter-claims, and further failing to make any finding at all as to the 'cross-complaint', i.e., counterclaimant, Geneva Wolff?

2. Was the returning of two verdicts in favor of Slusher an attempt to apportion damages between joint tortfeasors or otherwise contradictory or ambiguous?

3. Were the verdicts excessive?

A threshold question facing us is whether, due to failure to resolve all of the issues presented for trial, the judgment entered was a 'final judgment' from which an appeal may be taken.

Trial Rule 54(B) of the Indiana Rules of Civil Procedure provides as follows:

'(B) Judgment upon multiple claims or involving multiple parties. When more than one (1) claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as [161 Ind.App. 187] to any of the claims or parties, and the order or other form...