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+"{\"id\": \"10819413\", \"name\": \"HOOSIER INSURANCE COMPANY, Appellant-Plaintiff, v. AUDIOLOGY FOUNDATION OF AMERICA and American Speech-Language Hearing Association, Appellee-Defendant\", \"name_abbreviation\": \"Hoosier Insurance Co. v. Audiology Foundation of America\", \"decision_date\": \"2001-04-09\", \"docket_number\": \"No. 79A04-0004-CV-144\", \"first_page\": \"300\", \"last_page\": \"312\", \"citations\": \"745 N.E.2d 300\", \"volume\": \"745\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T17:22:25.085170+00:00\", \"provenance\": \"CAP\", \"judges\": \"DARDEN and RILEY, JJ., concur.\", \"parties\": \"HOOSIER INSURANCE COMPANY, Appellant-Plaintiff, v. AUDIOLOGY FOUNDATION OF AMERICA and American Speech-Language Hearing Association, Appellee-Defendant.\", \"head_matter\": \"HOOSIER INSURANCE COMPANY, Appellant-Plaintiff, v. AUDIOLOGY FOUNDATION OF AMERICA and American Speech-Language Hearing Association, Appellee-Defendant.\\nNo. 79A04-0004-CV-144.\\nCourt of Appeals of Indiana.\\nApril 9, 2001.\\nRehearing Denied June 6, 2001.\\nJohn T. Hume, III, Edward F. Harney, Jr., Hume, Smith, Geddes, Green & Simmons, LLP, Indianapolis, IN, Robert F. Johnson, Lee Anne N. Conta, Cook & Franke S.C., Milwaukee, WI, Attorneys for Appellant.\\nRobert M. Gippin, Karen Kelly Grasso, Thompson, Hine & Flory, LLP, Cleveland, OH, Thomas H. Busch, Hoffman, Lubman & Busch, Lafayette, IN, Attorneys for Ap-pellee. & '\", \"word_count\": \"5222\", \"char_count\": \"32691\", \"text\": \"OPINION\\nROBB, Judge.\\nCase Summary\\nHoosier Insurance Company (\\\"Hoosier\\\") appeals the trial court's order denying its motion for summary judgment and granting Audiology Foundation of America's (\\\"AFA's\\\") cross-motion for partial summary judgment. We affirm.\\nIssues\\nHoosier raises three issues for our review which we restate as whether the trial court erred when it denied its motion for summary judgment and granted AFA's cross-motion for partial summary judgment with respect to:\\n1. Whether the advertising injury provisions of Hoosier's policy provide coverage to AFA for claims of false advertising, false designation of origin, and unfair competition;\\n2. Whether coverage is excluded under the policy's \\\"knowledge of falsity\\\" provision; and\\n3. Whether AFA can proceed on a bad faith claim against Hoosier based on Hoosier's denial of coverage or the stipulation it entered into with the American Speech Language Hearing Association (\\\"ASHA\\\").\\nFacts and Procedural History\\nThe Insurance Policy\\nAFA is a not-for-profit corporation based in West Lafayette. At one time, AFA promoted a re-credentialing program where, for a fee, it would review documentation from a practicing audiologist and confer a credential of Doctor of Audiology, or Au.D., upon him or her based on his or her education and practical experience. The re-credentialing program was intended to be temporary, lasting only until the time that AFA anticipated that the Au.D. would be the standard entry-level degree for audiologists. AFA obtained an insurance policy with Hoosier which contained coverage and exclusions with respect to business liability, including advertising inJury liability. There were a total of three policies issued, one for each of the following policy periods: August 1, 1995 to August 1, 1996; August 1, 1996 to August 1, 1997; August 1, 1997 to August 1, 1998.\\nThe coverage portion of the policy stated that \\\"[Hoosier] will pay those sums that [AFA] becomes legally obligated to pay as damages because of . 'advertising injury' to which this insurance applies. [Hoosier] will have the right and duty to defend any 'suit' seeking those damages. [Hoosier] may at our discretion investigate any 'occurrence' and settle any claim or 'suit' that may result.\\\" R. 85. Further, the policy stated that the insurance applied to an \\\" 'advertising injury' caused by an offense committed in the course of advertising [AFA's] goods, products or services....\\\" Id. However, the policy also identified exclusions, and stated that the insurance did not apply, among other things, to an advertising injury that arose \\\"out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity....\\\" R. 89.\\nAn advertising injury was defined in the policy as meaning:\\n[Injury arising out of one or more of the following offenses:\\na. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services;\\nb. Oral or written publication of material that violates a person's right of privacy;\\nc. Misappropriation - of _- advertising ideas or style of doing business; or d. Infringement of copyright, title or slogan.\\nR. 98.\\nThe Underlying Action, ASHA v. AFA\\nAs a result of its re-credentialing program, AFA was sued by ASHA in the United States District Court for the District of Maryland. In its complaint against AFA, ASHA alleged that the activities engaged in by AFA constituted \\\"false advertising, false designation of origin, and unfair competition in violation of Section 48(a) of the federal Lanham Act and the common law of the State of Maryland.\\\" R. 44.\\nThe Declaratory Judgment Action, Hoosier v. AFA\\nAFA notified Hoosier of ASHA's suit against it. Thereafter, Hoosier issued a preliminary letter to AFA which stated, \\\"[blased upon a review of the policies issued by Hoosier, the complaint and the applicable facts provided to date, the poli-cles do not provide coverage for the claims alleged in the complaint.\\\" R. 96. Hoosier additionally informed AFA in this letter that there were a number of reasons that coverage could be reduced or excluded, among them, the fact that the complaint did not seek damages; that there was not an advertising injury; that the policy excluded an advertising injury that arose out of material done by or at the direction of the insured with knowledge of its falsity or the willful violation of a penal statute or ordinance committed with the consent of the insured; and that the claims alleged in the complaint were barred to the extent that they seek indemnity in excess of the applicable limits of the policies. The letter also directed that in order for Hoosier to complete its evaluation of the claim, AFA needed to provide Hoosier with specific information and documents. AFA did forward basic information about AFA and copies of its newsletters to Hoosier.\\nHoosier responded to AFA by stating that none of the offenses listed under the definition of advertising injury were alleged in ASHA's complaint and therefore, its initial position remained unchanged and it was denying coverage. After further correspondence between AFA and Hoosier, Hoosier filed a complaint for declaratory judgment against both AFA and ASHA seeking a determination that the policies did not provide coverage for the claims alleged by ASHA and thus, Hoosier did not have a duty to defend or indemnify AFA in the underlying action.\\nBefore AFA filed an appearance in the declaratory judgment action, Hoosier entered into a stipulation with ASHA which stated that ASHA was not seeking money damages in the underlying action. The stipulation was filed with the trial court and ASHA was dismissed from the declaratory judgment action. AFA was not a party to the stipulation.\\nAFA filed an answer and a counterclaim alleging that Hoosier had the duty to defend and indemnify AFA for the claims asserted in the underlying action and that Hoosier acted in bad faith in denying AFA a defense or indemnification.\\nHoosier filed a motion for summary judgment, asserting that there was no genuine issue of material fact in that: none of the claims fell within the coverage of the Hoosier policies, the knowledge of falsity exelusion applied, and ASHA was not seeking damages within the meaning of the policies; thus, Hoosier contended that it did not have a duty to defend or indemnify AFA and was entitled to judgment in its favor on its complaint as a matter of law. Additionally, Hoosier requested summary judgment in its favor on AFA's counterclaim for bad faith. AFA subsequently filed its motion in opposition to Hoogier's motion for summary judgment and its cross-motion for partial summary judgment. AFA asserted that there was no genuine issue of material fact in that: the claims alleged by ASHA constituted advertising injuries of either misappropriation of style of doing business or infringement of copyright, title or slogan, the knowledge of falsity exclusion did not apply, and ASHA did seek money damages in the underlying action; therefore, AFA contended that Hoosier was obligated to defend or indemnify AFA in the underlying action and AFA was entitled to judgment as a matter of law. Further, AFA asserted that it should be allowed to pursue its bad faith claim against Hoosier.\\nAfter oral argument before the trial court, the trial court denied Hoosier's motion for summary judgment and granted AFA's cross-motion for partial summary judgment on Hoosier's complaint for declaratory judgment. The trial court stated, in its order, that it found \\\"no genuine issues of material fact concerning the coverage to be afforded to AFA under the Hoosier policy, but [found] such issues concerning AFA's allegations of bad faith concerning Hoosier.\\\" R. 214. Essentially, the trial court granted summary judgment in favor of AFA on Hoosier's complaint and denied summary judgment to Hoosier on AFA's counterclaim regarding bad faith. Thus, the only remaining claim between the parties is the bad faith claim. Hoosier now appeals.\\nAdditional facts will be provided as nee-essary.\\nDiscussion and Decision\\nI, Standard of Review\\nThe purpose of summary judgment is to end litigation where no factual dispute exists and which may be determined as a matter of law. Choung v. Iemma, 708 N.E.2d 7, 11 (Ind.Ct.App.1999). On review of a trial court's decision to grant or deny summary judgment, our standard of review is well settled. We apply the same standard of review as the trial court: we must decide whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Fawcett v. Gooch, 708 N.E.2d 908, 909 (Ind.Ct.App.1999).\\nSummary judgment is appropriate only if \\\"the evidence sanctioned by Ind. Trial Rule 56(C) shows that there is no genuine issue of material fact and the moving party deserves judgment as a matter of law.\\\" Id. (citing Blake v. Calumet Constr. Corp., 674 N.E.2d 167, 169 (Ind.1996)). The party moving for summary judgment has the burden of making a pri-ma facie showing that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Choung, 708 N.E.2d at 11. Onee these two requirements are met by the moving party, the burden then shifts to the non-moving party to show the existence of a genuine issue by setting forth specifically designated facts. Id. Any doubts as to any facts or inferences to be drawn therefrom will be resolved in favor of the non-moving party. Id.\\nAdditionally, the trial court's specific findings of fact and conclusions of law are not required in the summary judgment context, and although they offer valuable insight into the trial court's rationale for its judgment and facilitate our review, they are not binding on us. Bernstein v. Glavin, 725 N.E.2d 455, 458 (Ind.Ct.App.2000), trans. denied. Further, the fact that the parties make cross-motions for summary judgment does not alter our standard of review. Freidline v. Civil City of South Bend, 733 N.E.2d 490, 493 (Ind.Ct.App.2000).\\nII. Grant of Summary Judgment-Advertising Injury Provision\\nHoosier argues that the trial court's decision that Hoosier had a duty to defend and indemnify AFA was erroneous because the policy held by AFA does not provide liability coverage for the claims alleged by ASHA in the underlying action. Hoosier contends that the claims ASHA asserted against AFA did not arise out of an advertising injury offense enumerated in the policy, and thus, the policy does not provide coverage for AFA's claim. Therefore, Hoosier argues that summary judgment in its favor on this issue was appropriate.\\nAn insurance company's duty to defend is broader than its coverage for liability or its duty to indemnify. Indiana Farmers Mut. Ins. Co. v. Ellison, 679 N.E.2d 1378, 1381-82 (Ind.Ct.App.1997), trans. denied. \\\"The duty to defend is determined from the allegations of the complaint and from the facts known or ascertainable by the insurer after an investigation has been made.\\\" Id. at 1382. If the pleadings fail to disclose a claim within the coverage limits, or one which is clearly excluded under the policy, and investigation reveals that the claim is outside the coverage of the policy, no defense is required. Id. As a matter of law, however, the insurer has a duty to conduct a reasonable investigation into the facts underlying the complaint before it may refuse to defend the complaint. Monroe Guar. Ins. Co. v. Monroe, 677 N.E.2d 620, 624 (Ind.Ct.App.1997), trans. dismissed.\\nIn the underlying action, ASHA alleged complaints against AFA for false advertising, false designation of origin, and unfair competition under the Lanham Act and Maryland common law. ASHA claimed that AFA used the terms \\\"Doctor of Audiology\\\" or \\\"Au.D.\\\" in commercial advertising of its credentialing services in brochures, newsletters, booklets, on its web site, and in the dissemination of material like lapel pins, and that the use of the term Doctor of Audiology is a commercial advertisement. ASHA asserted, among other things, that the use of the term \\\"Doctor of Audiology\\\" misrepresents the nature of AFA's credentialing services because it imparts a false message that the AFA credential is an academic degree. Further, ASHA alleged that the use of the word \\\"doctor\\\" in connection to one who had not earned the degree falsely leads one to believe that the audiologist did earn his or her doctoral degree. ASHA also alleged that AFA's use of \\\"Doctor of Audiology\\\" is a deliberate attempt to pass off its ereden-tial as an earned degree and thus constitutes a false designation of origin. With respect to its unfair competition allegations, ASHA claimed that the use of the term \\\"Doctor of Audiology\\\" gave AFA an unfair advantage in its competition with ASHA.\\nHoosier's \\\"advertising injury\\\" policy provision provides that \\\"[Hoosier] will pay those sums that [AFA] becomes legally obligated to pay as damages because of . \\\"advertising injury' to which this insurance applies. [Hoosier] will have the right and duty to defend any 'suit' seeking those damages.\\\" R. 85. The policy later defines an advertising injury as an:\\ninjury arising out of one or more of the following offenses:\\n*o oto\\nc. Misappropriation - of - advertising ideas or style of doing business; or\\nd. Infringement of copyright, title or slogan.\\nR. 93.\\nBecause insurance policies are contracts between parties, the law of contracts applies when determining policy liabilities. Davidson v. Cincinnati Ins. Co., 572 N.E.2d 502, 505 (Ind.Ct.App.1991), trans. denied. Ambiguous terms in an insurance policy are to be construed - against the insurer. American States Ins. Co. v. Kiger, 662 N.E.2d 945, 947 (Ind.1996). \\\"This is particularly true where a policy excludes coverage.\\\" Id. (citation omitted). Our Supreme Court was clear in its holding, stating that \\\"[this strict con-strual against the insurer is driven by the fact that the insurer drafts the policy and foists its terms upon the customer. 'The insurance companies write the policies; we buy their forms or we do not buy insurance.'\\\" Id. (quoting American Econ. Ins. Co. v. Liggett, 426 N.E.2d 136, 142 (Ind.Ct.App.1981)). Therefore, the insurer is bound by the plain, ordinary meaning of the words as viewed from the perspective of the insured. Cincinnati Ins. Co. v. BACT Holdings, Inc., 723 N.E.2d 436, 439 (Ind.Ct.App.2000), trans. denied.\\nThe analysis of an advertising injury liability provision presents a case of first impression in Indiana state courts. However, after the trial court issued its summary judgment order in this case, the Federal Court for the Southern District of Indiana issued an opinion addressing the definition of \\\"advertising injury\\\" in an insurance policy, specifically the provisions of \\\"misappropriation of advertising ideas or style of doing business\\\" and \\\"infringe, ment of copyright, title or slogan.\\\" Heritage Mut. Ins. Co. v. Advanced Polymer Technology, Inc., 97 F.Supp.2d 913 (S.D.Ind.2000). The provision at issue in Advanced Polymer was, in relevant aspects, identical to the provision in the Hoosier policy.\\nIn Advanced Polymer, coverage under an advertising injury liability provision was denied for patent infringement, unfair competition, and false designation of origin claims. 97 F.Supp.2d at 987. With respect to \\\"misappropriation of . style of doing business,\\\" Advanced Polymer acknowledged that courts often disagree about the breadth of the term \\\"misappropriation.\\\" Id. at 926. Some courts have construed it narrowly, to track the common-law tort of misappropriation, while others broadly define it in its lay sense to mean \\\"to take wrongfully.\\\" Id. (citations omitted). The Advanced Polymer court concurred \\\"with the vast majority of courts\\\" that style of doing business is defined as \\\"a company's comprehensive manner of operating its business.\\\" Id. at 928.\\nHoosier alleges that the claims alleged by ASHA in the underlying action do not fall within the \\\"misappropriation of style of doing business\\\" provision of the policy. Based on the Advanced Polymer decision, Hoosier argues that ASHA is not complaining that AFA misappropriated its style of doing business, or its comprehensive manner of operating its business. Rather, Hoosier asserts that ASHA's allegations refer to the fact that AFA was conferring a Doctor of Audiology credential as a valid academic degree, when in actuality, it was not. Further, Hoosier claims that ASHA could not have been complaining that AFA had misappropriated its manner of doing business because ASHA is not in the business of selling or advertising degrees. We disagree.\\nASHA is a non-profit professional association and has been issuing credentials since 1952. These credentials are issued by ASHA to individuals for entry-level practice in audiology and speech-language pathology. AFA, also a not-for-profit corporation, was established in 1988. AFA, its members, and other audiologists seek to raise the entry-level degree of audiologists to that of a doctor of audiology, or Au.D. Thus, AFA also issued credentials. Neither ASHA nor AFA issue degrees, only credentials. Based on dates alone, it is clear that AFA was an upstart, created years after ASHA.\\nBased on the Advanced Polymer definition of style of doing business, a company's comprehensive manner of operating its business, it is clear that ASHA's complaint about AFA and its issuance of the Au.D. credential would reasonably fall under the policy provision of \\\"misappropriation of . style of doing business.\\\" AFA was started after ASHA. Both are professional associations which issue credentials to audiologists.\\nAlthough Advanced Polymer found no coverage under the misappropriation of style of doing business provision under the facts presented therein, the case at hand is distinguishable in that we are dealing with claims by and against two yery similar associations. - The Advanced Polymer court, with respect to the misappropriation of style of doing business, dealt primarily with patent infringement and unfair competition; there, none of the allegations fell within the ambit of style of doing business, unlike the case at hand. In Advanced Polymer, the court noted that nowhere in the underlying complaint was the court informed of nature of the business, the number of products produced, whether the product advertised represents a similar product, or how the company operates its business or presents itself to the public, among other things. Here, ASHA clearly described both itself and AFA in its complaint, explained that both issue ereden-tials, and further, complained specifically about the credential that AFA was issuing. Thus, we hold that AFA was entitled to coverage based on the policy provision of misappropriation of style of doing business.\\nFurther, we note that although the insurance policy was not in fact illusory, it would seem that AFA had paid for insurance that appeared to cover almost nothing. Hoogier's assertions with respect to the misappropriation of style of doing business stated that essentially, in order for coverage to be extended, AFA would have had to been nearly identical to ASHA in all respects. We disagree, and hold that a \\\"style\\\" of doing business is not so restrictive.\\nHaving held that coverage should have been extended to AFA pursuant to the misappropriation of style of doing business provision of the policy, we must turn to the issue of whether the knowledge of falsity exclusion should apply in order to determine if summary judgment for AFA was proper.\\nIII. Grant of Summary Judgment-Knowledge of Falsity Exclusion\\nHoosier argues that the trial court's decision that Hoosier had a duty to defend and indemnify AFA was also erroneous because the policy's knowledge of falsity exclusion applied. Hoosier contends that AFA, in promoting its \\\"Doctor of Audiology\\\" credential, did so knowing that the meaning people would attach to the title was false. We disagree,.\\n- Generally, insurers are allowed to limit liability in any manner which is not inconsistent with public policy and an unambiguous exclusionary clause is ordinarily entitled to enforcement. American Family Life Assurance Co. v. Russell, 700 N.E.2d 1174, 1177 (Ind.Ct.App.1998), trans. denied. However, exclusions, exceptions, and limitations must be plainly expressed in the policy and the ary clause must bring within its seope the particular act or omission that will bring the exclusion into play. Id. Any doubts as to the coverage under the policy will be construed against the insurer in order to further the policy's basic purpose of indemnity. Id. \\\"Generally, a coverage exclusion is an affirmative defense, proof of which is the insurer's burden.\\\" Rozek v. American Fomily Mut. Ins. Co., 512 N.E.2d 232, 234 (Ind.Ct.App.1987).\\nHere, Hoosier's policy included a knowledge of falsity exclusion which stated that the insurance did not apply to an advertising injury \\\"[alrising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity.\\\" R. 89. Hoosier alleges that the trial court erred in granting summary judgment in favor of AFA based on the knowledge of falsity exclusion because AFA deliberately advertised a false degree and the underlying complaint specifically alleges AFA's deliberate use of the false and misleading title Doctor of Audiology designation.\\nHere, the knowledge of falsity exclusion, to apply, requires that an advertising injury arise out of materials published by AFA, and that AFA have knowledge of the material's falsity. AFA was engaged in a re-credentialing program. It would confer the credential doctor of audiology. AFA was not conferring academic degrees, but credentials, and its materials never claimed otherwise. As such, there was nothing false published by AFA and no way for AFA to have knowledge of any such falsity. Therefore, we hold that the trial court did not err in granting summary judgment in favor of AFA with respect to the knowledge of falsity exelusion.\\nBecause the trial court was correct in interpreting both the advertising injury provision and the knowledge of falsity exclusion, summary judgment for AFA on Hoosier's complaint was proper.\\nIV. Denial of Summary Judgment-Bad Faith Claim\\nHoosier claims that AFA should not be entitled to pursue its bad faith claim and that summary judgment should have been entered in favor of Hoosier with respect to the bad faith claim asserted by AFA because: 1.) Hoogier acted in accordance with Indiana law when it investigated the claim, advised AFA of its coverage position, and filed a declaratory judgment action; 2.) AFA waived its right to argue that the stipulation entered into between AHSA and Hoosier was procured in bad faith; and 3.) regardless of AFA's waiver, the stipulation was obtained and entered prior to AFA's appearance in the declaratory judgment action.\\nAn insurer has a duty to deal with its insured in good faith, and there is a cause of action for the tortuous breach of that duty. Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 519 (Ind.1993), see also County Line Towing, Inc. v. Cincinnati Ins. Co., 714 N.E.2d 285, 291 (Ind.Ct.App.1999), trans. denied. \\\"The insurer's obligation of good faith and fair dealing includes an obligation to refrain from causing an unfounded delay in making payment; making an unfounded refusal to pay policy proceeds; exercising an unfair advantage to pressure an insured into settlement of his claim; and deceiving the insured.\\\" County Line Towing, Inc., 714 N.E.2d at 291. Therefore, an insured who believes an insurance claim has been wrongly denied may have two distinct legal theories available, one for breach of the insurance contract and one in tort for the breach of the duty of good faith and fair dealing. Id. These two theories have separate, although often overlapping, elements, defenses, and recoveries. Id. '\\nA good faith dispute about the amount of a valid claim or whether the insured has a valid claim at all will not supply the grounds for recovery in tort for the breach of the obligation to exercise good faith. Becker v. American Family Ins. Group, 697 N.E.2d 106, 108 (Ind.Ct.App.1998). \\\"This is so even if it is ultimately determined that the insured breached its contract. That insurance companies may, in good faith, dispute claims, has long been the rule in Indiana.\\\" Id. Additionally, \\\"the lack of diligent investigation alone is not sufficient to support an award. On the other hand, for example, an insurer which denies liability knowing that there is no rational, principled basis for doing so has breached its duty.\\\" Id. Thus, poor judgment and negligence do not amount to bad faith; the additional element of conscious wrongdoing must also be present. Colley v. Indiana Farmers Mut. Ins. Group, 691 N.E.2d 1259, 1261 (Ind.Ct.App.1998), trans. denied. \\\"A finding of bad faith requires evidence of a state of mind reflecting dishonest purpose, moral obliquity, furtive design, or ill will.\\\" Id. As such, a bad faith determination inherently includes an element of eulpability. Id. Finally, fact issues may preclude summary judgment in favor of an insurer on an insured's bad faith claim. See Gooch v. State Farm Mut. Auto. Ins. Co., 712 N.E.2d 38 (Ind.Ct.App.1999), trans. denied.\\nA. Denial of Coverage\\nAn insurance company's duty to defend is broader than its duty to indemnify. . Employers Ins. Of Wausau v. Recticel Foam Corp., 716 N.E.2d 1015, 1025 (Ind.Ct.App.1999), trans. denied. And, as stated earlier, as a matter of law, the insurer has a duty to conduct a reasonable investigation into the facts underlying the complaint before it may refuse to defend the complaint. Monroe Guar. Ins. Co., 677 N.E.2d at 624. When an insurer questions whether an insured's claim falls within the seope of its policy coverage or raises a defense that its insured has breached a policy condition, the insurer has two options: 1.) file a declaratory judgment action for a judicial determination of its obligations under the policy, or 2.) hire independent counsel to defend its insured under a reservation of rights. Gallant Ins. Co. v. Wilkerson, 720 N.E.2d 1223, 1227 (Ind.Ct.App.1999). Thus, an insurer, after making an independent determination that it has no duty to defend, must either file a declaratory judgment for determination of its obligations or defend under a reservation of rights. Employers Ins. of Wausau, 716 N.E.2d at 1025.\\nHere, we agree that an insurance company has the right to a good faith dispute with its insured with respect to coverage, primarily where the coverage presents an issue of first impression. We recognize that Hoosier has the right to a good faith dispute and once it denied coverage, Hoosier properly filed for declaratory judgment. What troubles us, however, is the manner in which Hoosier acted in its dispute with AFA. Specifically, the numerous broad reasons Hoosier gave in explaining that coverage was excluded or denied in whole or part. Again, we are not saying that Hoosier acted in bad faith because it was challenging whether or not coverage existed. We are, however, saying that there is a genuine issue of material fact as to whether bad faith existed in the way in which Hoosier sought to secure its position, including the stipulation discussed below. It is not our role to determine whether Hoosier acted in bad faith; however, we hold that there is a genuine issue of material fact present and that the trial court did not err in denying summary judgment with respect to AFA's bad faith claim.\\nB. Stipulation\\nHoosier and ASHA entered into a stipulation which stated that ASHA was not seeking money damages in the underlying action against AFA and that ASHA waived its right to any benefit under the Hoosier insurance policies. Thus, ASHA also waived its rights to participate in the declaratory judgment action and the complaint for declaratory relief was dismissed against ASHA.\\nWith respect to this stipulation, Hoosier alleges that AFA has waived any argument because it did not raise the stipulation as an example of bad faith until it filed proposed findings of fact and conclusions of law to the trial court. Waiver notwithstanding, Hoosier alleges that the stipulation cannot constitute bad faith. Hoosier claims that because the stipulation was entered into prior to AFA's appearance in the declaratory judgment action, AFA's argument should be rejected. Hoosier additionally claims that the stipulation actually benefits AFA in the underlying action, although Hoosier does concede that the stipulation would lead to a finding of no coverage from the date of the stipulation forward.\\nThe fact that Hoosier and ASHA entered into the stipulation at issue here creates a genuine issue of material fact regarding whether Hoosier acted in bad faith in dealing with AFA. It is not necessary to determine whether or not AFA's argument with respect to the stipulation was waived. The fact that Hoosier entered into the stipulation without AFA's knowledge, particularly when it states that ASHA was not seeking monetary damages when indeed, the underlying action was never amended to reflect this fact, clearly creates a genuine issue of material fact. Essentially, Hoosier entered into a stipulation with ASHA, which would ereate no coverage, and that stipulation was false: it stated that ASHA sought no monetary damages in the underlying action; however, the complaint was never changed and thus, ASHA was seeking monetary damages. A genuine issue of material fact exists, and thus, the trial court properly determined that AFA's bad faith claim against Hoosier could proceed.\\nConclusion\\nWe hold that the trial court did not err in granting summary judgment in favor of AFA and denying Hoosier's motion for summary judgment in that the advertising injury provision does provide coverage to AFA and the knowledge of falsity exclusion does not apply. Further, the trial court did not err is finding that AFA's bad faith claim against Hoosier may proceed because there remains a genuine issue of material fact regarding whether Hoogier's actions in dealing with AFA constitute bad faith,. Accordingly, we affirm.\\nAffirmed.\\nDARDEN and RILEY, JJ., concur.\\n. Oral argument was held in Indianapolis, Indiana on March 8, 2001.\\n. Additionally, it appears that each of the three policies were identical with respect to the advertising injury liability coverage and exclusion provisions. Because the policies appear before us numerous times, we will cite to the first policy provided to us in the record.\\n. According to AFA's brief, the action between ASHA and AFA was settled and \\\"[nlo judgment was taken by either party and neither party paid the other's costs.\\\" Brief of Appellee Audiology Foundation of America at 7. i\\n. Because we hold that coverage was proper under the misappropriation of style of doing business provision, we need not address whether or not coverage would also exist under the infringement of copyright, title, or slogan provision.\\n. Because AFA only alleges that the claims fall within the misappropriation of style of doing business, we will not discuss the misappropriation of advertising ideas. Advanced Polymer noted that the clause actually incorporated two separate injuries. Id. at 926.\\n. In its counterclaim, AFA asserted in Counts I and II that Hoosier had the duty to defend and indemnify AFA, respectively. Count III was with respect to the bad faith claim AFA asserted. Here, although actions with respect to defense and indemnification may arise, specifically whether or not Hoosier acted in bad faith when denying to defend or indemnify, the issue is with respect to whether Hoosier acted in bad faith generally. Whether summary judgment was appropriate with respect to the duty to defend and indemnify was addressed above.\\n. Although not specifically raised in its bad faith section, AFA had presented the trial court with information pertaining to the stipulation entered into between Hoosier and ASHA in its cross-motion for summary judgment and its brief in support.\"}"

ind/10840930.json

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+"{\"id\": \"10840930\", \"name\": \"Brenda GUNTER, Appellant-Plaintiff, v. VILLAGE PUB and Carol Reed Miller, Appellee-Defendants\", \"name_abbreviation\": \"Gunter v. Village Pub\", \"decision_date\": \"1993-01-25\", \"docket_number\": \"No. 10A01-9207-CV-244\", \"first_page\": \"1310\", \"last_page\": \"1314\", \"citations\": \"606 N.E.2d 1310\", \"volume\": \"606\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T02:00:27.446101+00:00\", \"provenance\": \"CAP\", \"judges\": \"ROBERTSON, J., concurs.\", \"parties\": \"Brenda GUNTER, Appellant-Plaintiff, v. VILLAGE PUB and Carol Reed Miller, Appellee-Defendants.\", \"head_matter\": \"Brenda GUNTER, Appellant-Plaintiff, v. VILLAGE PUB and Carol Reed Miller, Appellee-Defendants.\\nNo. 10A01-9207-CV-244.\\nCourt of Appeals of Indiana, First District.\\nJan. 25, 1993.\\nMitchele J. Harlan, Harris, Harlan & Merideth, Jeffersonville, for appellant plaintiff.\\nSandra W. Lewis, Smith, Bartlett, Heeke & Carpenter, Jeffersonville, for appellee-defendants.\", \"word_count\": \"1908\", \"char_count\": \"11875\", \"text\": \"BAKER, Judge.\\nPlaintiff-appellant Brenda Gunter appeals the trial court's grant of summary judgment in favor of defendant-appelliee Village Pub. Gunter raises one issue for our review which we restate as: whether the trial court erred when it granted Vil lage Pub's motion for summary judgment because there are material questions of fact about Village Pub's duty to protect Gunter from Carol Miller's attack. Because we find there are material questions of fact, we are required to reverse the grant of summary judgment.\\nFACTS\\nThe facts most favorable to Gunter, the non-movant, follow. On the night of August 14, 1987, Gunter arrived alone at the Village Pub sometime after 10:00 p.m. She ordered an alcoholic beverage, spoke to an old friend, Mike Sowders, and then sat down at a table by herself. Sowders was in the pub with Carol Miller. Gunter had been involved previously with Miller's former husband, and, although Gunter did not know Miller, Miller made it no secret that she disliked Gunter. Demonstrating her animosity, Miller approached Gunter's table two or three times to deliver harassing remarks. The first time Miller approached Gunter's table, Miller called Gunter a \\\"bitch,\\\" and suggested Gunter must \\\"want\\\" Mike Sowders since she already had had one of Miller's men. Later, Miller advised Gunter that as a New Albany Police Department employee, she was going to have Gunter arrested when Gunter left the pub. Miller also laughed at Gunter and said Gunter was making a fool of herself by dancing with an unidentified man in the bar.\\nAngered by Miller's behavior, Gunter summoned the Village Pub's manager, Kamran Javid, and told him about Miller's comments and threat to have her arrested. Gunter claims Javid assured her he would talk to Miller, although Gunter never saw him do so. Sometime later, Gunter left her table and walked towards the restroom. As she strolled past Miller's table, a chair was pushed into her path. Gunter admits she looked directly at Miller, called her a \\\"hussy,\\\" and walked into the restroom. Record at 188. Miller followed Gunter into the restroom and socked Gunter in the face. The blow broke Gunter's nose.\\nGunter's complaint alleged the pub negligently breached its duty to keep its property in a safe condition. Village Pub moved for summary judgment, and the trial court granted the motion. Gunter now appeals.\\nDISCUSSION AND DECISION\\nStandard of Review\\nGunter argues the trial court erroneously granted Village Pub's motion for summary judgment because there were material questions of fact regarding the pub's duty to make its business premises safe for Gunter. In reviewing the propriety of 'the grant of summary judgment, this court applies the same standard employed by the trial court. Hamilton v. Roger Sherman Architects Group, Inc. (1991), Ind.App., 565 N.E.2d 1136, 1137. Summary judgment is proper when the designated pleadings, depositions, answers to interrogatories, admissions, and affidavits show no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. Indiana DPW v. Hupp (1992), Ind.App., 605 N.E.2d 768; Ind.Trial Rule 56(C). We resolve any doubt against the proponent of the motion, taking all facts properly asserted by the party opposing the motion as true.\\nDUTY\\nGunter's action hinges on Village Pub's duty of care, and we begin with a brief summary of duty law in Indiana. Before a defendant can be held liable in an action for negligence, the plaintiff must show the defendant had a duty to protect the plaintiff from the harm suffered. T.S.B. v. Clinard (1990), Ind.App., 553 N.E.2d 1253, 1255. Whether a duty existed is a question of law for the court, although questions of fact may be interwoven with this determination. Douglass v. Irvin (1990), Ind., 549 N.E.2d 368, 369 n. 1. When addressing the duty issue, we must consider the nature of the relationship between the parties and whether the party being charged with negligence had knowledge of the situation or circumstances surrounding the relationship. T.S.B., supra, at 1256.\\nA duty may also be created by gratuitous or voluntary assumption. Robinson v. Kinnick (1989), Ind.App., 548 N.E.2d 1167, 1168, trans. denied. The assumption of a duty creates a special relationship between the parties and a corresponding duty to act in the manner of a reasonably prudent person. Id. Whether a party assumed a duty and the extent of that duty are questions for the fact-finder. Id. Similarly, whether a party breached its duty is a factual question generally not appropriate for summary disposition. See Douglass, supra, at 370.\\nBusiness Invitees\\nIn Indiana, landowners have a duty to exercise reasonable care to make their premises safe for business invitees. Burrell v. Meads (1991), Ind., 569 N.E.2d 637, 639. When the landowner is the pro-prictor of a tavern, the duty includes protecting patrons from reasonably foreseeable disorderly acts of other patrons. Welch v. Railroad Crossing, Inc. (1986), Ind.App., 488 N.E.2d 383, 388. The proprietor is not the insurer of his or her patrons' safety, however. Id. \\\"A duty to anticipate and to take steps to protect against a criminal act arises only when the facts of a particular case make it reasonably foreseeable that a criminal act is likely to occur.\\\" Id. at 388 (original emphasis). Relevant facts may include the assailant's behavior either on the day of the injury or on previous occasions. Id.\\nAs Village Pub's invitee, Gunter asserts the pub had a duty to exercise reasonable care to make its business premises safe for her. That duty, she argues, included the duty to protect her from Miller's foreseeable attack. Even if Village Pub did not already have a duty to protect her from the attack, Gunter contends the pub assumed that duty when Javid promised to talk to Miller after Gunter told him about Miller's threats.\\nWe agree with Gunter the evidence she designated to preclude summary judgment demonstrates issues of material fact which make summary judgment inappropriate in this case. Gunter stated in her deposition that she told Village Pub's manager that a \\\"blond headed lady,\\\" later identified to be Miller, had \\\"threatened to have [Gunter] arrested and she called [Gunter] a bitch and she [approached Gunter's] table several times and [Gunter] didn't want any problems.\\\" Record at 187. Gunter also stated that upon reporting Miller's behavior to the manager, the manager assured her he would talk to Miller.\\nThis evidence creates questions of fact about whether Village Pub assumed a duty to protect Gunter from Miller's blow and whether it was foreseeable the attack was likely to occur. Regardless of this court's assessment of Gunter's likelihood of sue-ceeding at trial, and without intentions of making Village Pub strictly liable for bar room brawls, the existence of the factual issues in this case make the grant of summary judgment in Village Pub's favor erroneous. See Tucher v. Brothers Auto Salvage Yard (1991), Ind.App., 564 N.E.2d 560, 562 (summary judgment is not appropriate merely because the non-movant appears unlikely to prevail at trial).\\nProvoked Attack\\nFinally, we address Village Pub's argument it had no duty to protect Gunter from Miller's attack because Gunter provoked the attack when she called Miller a \\\"hussy.\\\" In support of its theory, the pub cites Prosser on Torts \\u00a7 61 at 401 (3rd Ed.) cited with approval in Broadhurst v. Davis (1970), 146 Ind.App. 329, 331, 255 N.E.2d 544, 545-46, for the proposition that a landowner has \\\"no obligation to protect the invitee against dangers which are known to him, or which are so obvious or apparent to him that he may reasonably be expected to discover them.\\\" Applying Professor Prosser's analysis here, Village Pub argues summary judgment was proper because Gunter assumed the risk of Miller's attack when Gunter disregarded the ill will she knew Miller felt towards her and provokingly called Miller a \\\"hussy.\\\"\\nVillage Pub's argument is unpersuasive. First, the pub misinterprets Indiana law. As our supreme court has enunciated, the duty of care a commercial business owes its invitees is not extinguished by its invitees' knowledge of the potential risks existing on the premises. Douglass, supra, at 370. While the comparative knowledge of the landowner and invitee is relevant when determining whether the landowner breached his or her duty, the invitee's knowledge is not relevant when determining whether a duty existed. Id. Accordingly, Gunter's knowledge of the risk Miller posed may be properly considered when determining whether Village Pub breached its duty of care towards Gun-ter. Contrary to Village Pub's artful argument, however, Gunter's knowledge of that risk cannot be used to extinguish the duty of care Village Pub owed Gunter in the first instance.\\nVillage Pub's argument also fails because its assertions are replete with questions of material fact inappropriate for summary disposition. In light of the designated facts before us, for example, the issues of whether Gunter's name-calling was a provocative act, and, if it was, whether Gunter voluntarily incurred the risks of that act when she called Miller a \\\"hussy'\\\" are both questions for the fact finder. See Forrest v. Gilley (1991), Ind.App., 570 N.E.2d 934, 936, trams. denied (the defense of incurred risk is normally a question for the trier of fact).\\nThe trial court's grant of summary judgment in Village Pub's favor is reversed, and the cause is remanded for further proceedings consistent with this opinion.\\nROBERTSON, J., concurs.\\nHOFFMAN, J., dissents with separate opinion.\\n. As defined in Webster's Ninth New Collegiate Dictionary 588 (1988), a \\\"hussy\\\" is a \\\"a lewd or brazen woman\\\" or \\\"a saucy or mischievous girl\\n. We disagree with Judge Hoffman's assessment of the facts in his dissenting opinion. Specifically, the record reveals Miller's threat of arrest was not the only information about Miller's behavior that Gunter reported to Village Pub. Gunter also told the pub that Miller called her a \\\"bitch,\\\" approached her table several times, and Gunter did not want any problems. Record at 187. Based on this testimony, we believe there is a question of fact about whether Miller's attack was foreseeable.\\nTo the extent Judge Hoffman argues a business owner must have knowledge of a patron's specific physical threats before that patron's attack will be considered foreseeable, we believe that standard is much too limiting, and is inconsistent with the case law. As this court enunciated in Welch, supra, at 388, evidence of ill will, belligerence, or even boisterousness may be sufficient to provide notice or warning that an attack is imminent.\"}"

ind/10846613.json

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+"{\"id\": \"10846613\", \"name\": \"Dennis Dewayne GEANS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff\", \"name_abbreviation\": \"Geans v. State\", \"decision_date\": \"1993-11-09\", \"docket_number\": \"No. 20A05-9301-CR-002\", \"first_page\": \"435\", \"last_page\": \"439\", \"citations\": \"623 N.E.2d 435\", \"volume\": \"623\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:48:53.881704+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHARPNACK, C.J., and CONOVER, J., concur.\", \"parties\": \"Dennis Dewayne GEANS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.\", \"head_matter\": \"Dennis Dewayne GEANS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.\\nNo. 20A05-9301-CR-002.\\nCourt of Appeals of Indiana, Fifth District.\\nNov. 9, 1993.\\nThomas A. Murto, Murto & Holbrook, Goshen, for appellant-defendant.\\nPamela Carter, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plain-tiff.\", \"word_count\": \"1612\", \"char_count\": \"10066\", \"text\": \"RUCKER, Judge.\\nDennis D. Geans was charged with three counts of Nonsupport of a Child, a Class D felony-one count for each of his three minor children. After a trial by jury Geans was convicted of all charges and received three consecutive eighteen month sentences. Geans now appeals raising three issues for our review which we restate as:\\n1) Whether the evidence was sufficient to sustain the convictions?\\n2) Whether Geans received effective assistance of counsel?\\n3) Whether the trial court erred in imposing sentences on each of the three counts?\\nWe affirm.\\nThe facts most favorable to the judgment reveal that Pamela and Dennis Geans were married September 11, 1971 and divorced July 20, 1990. Pamela Geans was granted custody of the three minor children of the parties, Sean, Aubrea and Lindsay. Dennis Geans was granted the right of reasonable visitation and ordered to pay $199.00 a week in child support. For the first three months after the divorce Geans paid child support on a fairly consistent basis. However, for a nine month period from November, 1990 to July, 1991 he paid no child support. Thus, in August, 1991, Geans was charged with three separate counts of Nonsupport of a Child.\\nAt trial, Geang' ex-wife testified that Ge-ans did not pay child support as ordered by the court although he did purchase various items of clothing and toys for the three children. Geans' son Sean testified that Geans gave him small amounts of money, a pair of boots, and other clothing. Geans' daughter Aubrea testified that she received a dress from her father. Geans took the stand in his own defense and testified that he did not pay court ordered child support during the disputed period because he was unable to do so. Geans confirmed that he purchased various items of clothing for all three children. Geans was convicted as charged and this appeal ensued in due course.\\nI.\\nGeans first contends the evidence is insufficient to support the convictions. According to Geans the State has failed to carry its burden and thus the conviction should be reversed.\\nOur standard of review for sufficiency of the evidence is well-settled. We will neither reweigh the evidence nor judge the credibility of witnesses. We examine only the evidence most favorable to the state along with all reasonable inferences to be drawn therefrom, and, if there is substantial evidence of probative value to support the conviction, it will not be set aside. Litel v. State (1988), Ind., 527 N.E.2d 1114.\\nThe State appears to argue that Geans' failure to pay court ordered child support is sufficient to sustain the convictions. We cannot agree. \\\"Support\\\" in the context of a divorce proceeding is substantially different than \\\"support\\\" in the context of a eriminal proceeding for Nonsupport of a Child. In the former it is strictly a matter of money, dollars and cents. The intentional nonpayment is punishable by contempt of court and could result in the violator's incarceration. See Ind.Code \\u00a7 31-1-11.5-13; Holman v. Holman (1985), Ind.App., 472 N.E.2d 1279. In the latter, money is not directly in issue. Rather, Ind.Code \\u00a7 35-46-1-1 clearly dictates \\\" 'support' means food, clothing, shelter, or medical care.\\\" The distinction is critical.\\nThere is no question that faced with a dissolution order to pay a sum certain in child support, a noncustodial parent cannot discharge that obligation by making voluntary financial contributions to the custodial parent, by paying support directly to the dependent child or by paying expenses for the dependent child. See Bendix v. Bendix (1990), Ind.App., 550 N.E.2d 825, trans. denied (payments made directly to children are non-conforming and do not offset support obligations) O'Neil v. O'Neil (1989), Ind., 535 N.E.2d 523 (father not entitled to credit against support arrearage by reason of his direct contributions to daughter's educational costs). On the other hand, that same parent may escape criminal liability by doing that for which he or she would find no refuge in a dissolution court, namely, providing a dependent child with food, clothing, shelter or medical care. However, to escape criminal liability the parent must provide more than a mere token amount of support. Shuttleworth v. State (1984), Ind.App., 469 N.E.2d 1210, 1214.\\nThe record reveals that Geans provided some support in the form of clothing to each of his dependent children. The total amount of support provided however was minimal at best. Although substantial amounts of food, clothing and shelter may preclude criminal liability, the token amounts provided in this case are simply not enough to avoid prosecution. The State presented sufficient evidence to show that Geans failed to support his dependent children.\\n18\\nNext, Geans contends the trial court erred in imposing sentences on each of the three convictions. According to Ge-ans his alleged failure to provide support is a single act and thus only one offense was committed. We disagree. Ind.Code \\u00a7 85-46-1-5 dictates in relevant part, \\\"[A] person who knowingly or intentionally fails to provide support to his dependent child commits nonsupport of a child, a Class D felony.\\\" The test for determining whether separate sentences may be imposed upon multiple counts is whether the charged offenses are themselves the same and not whether they arose from the same criminal act or course of conduct. Henderson v. State (1989), Ind., 534 N.E.2d 1105, 1106. Here, the charged offenses are not the same. There are three separate victims, Sean, Aubrea, and Lindsey, each of whom is entitled to support. Three separate crimes were committed. It was not error for the trial court to impose separate sentences for each offense.\\nIIL\\nFinally, Geans contends that he was denied effective assistance of counsel. In support of his claim Geans directs our attention to portions of his ex-wife's testimony accusing him of battery, residential entry, theft and harassment. According to Geans this evidence of prior bad acts was inadmissible and his trial counsel rendered ineffective assistance for not objecting to it.\\nWhen reviewing a claim of ineffective assistance of counsel, we initially presume that counsel's representation was within the wide range of reasonable professional assistance. Dillon v. State (1986), Ind., 492 N.E.2d 661. On appeal of a criminal conviction the defendant has the burden to rebut the presumption of competency with strong and convincing evidence. Burr v. State (1986), Ind., 492 N.E.2d 306. In order to prevail on a claim of ineffective assistance of counsel, a defendant must show 1) counsel's representation was deficient and 2) the deficient performance so prejudiced the defendant as to deprive him of a fair trial. Steele v. State (1989), Ind., 536 N.E.2d 292, citing Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. We will not reverse unless defendant established that but for counsel's errors, the result of the proceeding would have been different. Steele, 536 N.E.2d at 293.\\nWhen an ineffective assistance claim is based on counsel's failure to object, the defendant must show the objection would have been sustained if timely made. Grigsby v. State (1987), Ind., 503 N.E.2d 394. In this case Geans has not made the requisite showing.\\nThe record here reveals the testimony concerning Geans' battery of Pamela was introduced to explain her reason for obtaining a divorcee. The testimony concerning Geans' alleged harassment of his ex-wife and his possible residential entry, which involved Geans allegedly taking property belonging to his ex-wife, was part of the story explaining Geans' reason for refusing to pay court ordered child support. Apparently, Geans' ex-wife asked a male companion to live in her home. Geans learned of the companion's presence and discontinued paying the court ordered support. According to the ex-wife, her actions were motivated by fear of Geans; he apparently had been harassing his ex-wife, had broken into her home, and had removed items belonging to her.\\nWhere evidence of prior bad acts completes the story of events surrounding the commission of an offense, then the evidence may be properly admitted as part of the res gestae of the crime. Benefiel v. State (1991), Ind., 578 N.E.2d 338, 346, cert. denied (1992), \\u2014 U.S. \\u2014, 112 S.Ct. 2971, 119 L.Ed.2d 591. Thus, even if trial counsel had objected to the now challenged testimony, the objection would have been properly overruled. However, even assuming the testimony was properly objectionable, Geans' argument must nonetheless fail. Geans has not shown that but for counsel's errors, the result of the proceeding would have been any different. Steele, 536 N.E.2d at 293. The evidence in this case overwhelmingly shows that Geans did not support his children during the disputed period. Geans focused his defense on his inability to pay. The jury apparently rejected the defense. Accordingly, Geans has failed to demonstrate that he received ineffective assistance of counsel.\\nJudgment affirmed.\\nSHARPNACK, C.J., and CONOVER, J., concur.\\n. The statement of facts in Geans' brief is a summary of each witnesses' trial testimony. We have repeatedly stated that the appellate rules contemplate a narrative statement of the facts; a witness by witness summary of the testimony is not a statement of facts within the meaning of Ind.App. Rule 8.3(A)(5). Hoover v. State (1991), Ind.App., 582 N.E.2d 403, adopted (1992), Ind., 589 N.E.2d 243. We admonish counsel that failure to abide by the rules of procedure may result in waiver of issues presented for review.\\n. Ind.Code \\u00a7 35-46-1-5(d) dictates in relevant part \\\"[IJt is a defense that the accused person was unable to provide support.\\\"\"}"

ind/10878118.json

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+"{\"id\": \"10878118\", \"name\": \"Billy W. EDRINGTON and Christine L. Edrington, Appellants-Plaintiffs, v. RUSH COUNTY BOARD OF COMMISSIONERS, Appellee-Defendant\", \"name_abbreviation\": \"Edrington v. Rush County Board of Commissioners\", \"decision_date\": \"1995-03-30\", \"docket_number\": \"No. 70A01-9410-CV-339\", \"first_page\": \"397\", \"last_page\": \"399\", \"citations\": \"648 N.E.2d 397\", \"volume\": \"648\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T18:46:38.217835+00:00\", \"provenance\": \"CAP\", \"judges\": \"NAJAM and CHEZEM, JJ., concur.\", \"parties\": \"Billy W. EDRINGTON and Christine L. Edrington, Appellants-Plaintiffs, v. RUSH COUNTY BOARD OF COMMISSIONERS, Appellee-Defendant.\", \"head_matter\": \"Billy W. EDRINGTON and Christine L. Edrington, Appellants-Plaintiffs, v. RUSH COUNTY BOARD OF COMMISSIONERS, Appellee-Defendant.\\nNo. 70A01-9410-CV-339.\\nCourt of Appeals of Indiana, First District.\\nMarch 30, 1995.\\nRonald L. Wilson, Badell & Wilson, Rush-ville, for appellants.\\nDavid E. Northam, Earnest, Foster, Eder, Levi & Northam, Rushville, for appellee.\", \"word_count\": \"1045\", \"char_count\": \"6348\", \"text\": \"OPINION\\nBAKER, Judge.\\nAppellants-plaintiffs Billy and Christine Edrington appeal the trial court's grant of summary judgment in favor of appellee-de-fendant Rush County Board of Commissioners (Board).\\nFACTS\\nThe undisputed facts are that the Edring-tons are the owners of real estate located in the Stackhouse Park subdivision in Rush County, Indiana. The streets and alleys in the subdivision, including Elizabeth Street which intersects the Edringtons' property and an alley adjacent to their property, were dedicated to public use upon the recording of the plat in 1898 by a distant prior owner.\\nOn August 24, 1998, the Edringtons filed an action for declaratory relief, seeking a judicial determination that Elizabeth Street and the alley adjacent to their property had been vacated due to non-use for over six years, pursuant to IND.CODE \\u00a7 8-20-1-16 (the six-year statute). The complaint was filed against the Board, which is the local governing body having jurisdiction over roads and alleys located in Rush County. Subsequently, the Edringtons filed a motion for summary judgment claiming that the street and the alley were vacated due to non-use by operation of the six-year statute. In response, the Board filed a cross-motion for summary judgment asserting that the statute was inapplicable. After a hearing, the trial court granted the Board's motion for summary judgment and denied the Edringtons' motion for summary judgment, holding that the six-year statute does not apply to the facts of the case.\\nDISCUSSION AND DECISION\\nThe Edringtons appeal the denial of their motion for summary judgment and the grant of the Board's motion for summary judgment. Summary judgment shall be granted where the designated evidentiary matter shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C), Hermann v. Yater (1994), Ind.App., 631 N.E.2d 511, 518. On appeal, we are bound by the same standard as the trial court, and we consider only those matters which were designated at the summary judgment stage. Id. Since the parties do not dispute any material facts, our review is confined solely to a question of law. Ed Wiersma Trucking Co. v. Pfaff, (1994), Ind. App., 648 N.E.2d 909, 910.\\nThe question of law which the trial court determined and which we now review is whether the six-year statute operates to vacate the street and the alley on the Edring-tons' property. IC. \\u00a7 8-20-1-16 provides:\\nEvery public highway already laid out, or which may hereafter be laid out, and which shall not be opened and used within six (6) years from the time of its being so laid out, shall cease to be a highway for any purpose whatever; but if any distinct part thereof shall have been opened and used within six (6) years, such part shall not be affected by the provisions of this section, nor shall this section be applied to streets and alleys in any city or town.\\nThe Edringtons contend that pursuant to LC. \\u00a7 8-20-1-16, Elizabeth Street and the alley are no longer public roadways because they have not been used or developed for over six years. In support of their contention, the Edringtons presented an affidavit of John Wilson in which he stated that the street and the alley had not been used or developed between 1970 and 1990 when he owned the property. Recognizing that the six-year statute was repealed in 1988, the Edringtons assert that because the street and the alley were not used between 1970 and 1988, a period obviously exceeding six years, they have ceased being public roadways by operation of law under the statute.\\nThe parties do not dispute that Elizabeth Street and the alley adjacent to the Edringtons' property were voluntarily dedicated to public use upon the recording of the plat by the property owners in 1898. However, the six-year statute does not apply when a landowner voluntarily dedicates his land to public use as in the present case. Smith v. State, (1940), 217 Ind. 648, 29 N.E.2d 786. Rather, the statute applies where the property in question was laid out as a public roadway by the Board of County Commissioners through condemnation proceedings. Id.; Columbia Realty Corp. v. Harrelson, (1978), 155 Ind.App. 604, 614, 298 N.E.2d 804, 810. As our supreme court noted in Smith, the six-year statute is \\\"a part and parcel of a statute authorizing the con demnation of real estate by proceedings had on petition filed with the board of commissioners of the county....\\\" Smith, 217 Ind. at 647, 29 N.E.2d at 788. See also, Smolek v. Board of County Comm'rs of Pulaski County, (1979), 179 Ind.App. 608, 606, 386 N.E.2d 997, 1000 (the six-year statute does not apply where the roadway was established by public usage rather than through the actions of the Board of Commissioners).\\nAs our supreme court held in 1940, we reiterate today that I.C. $ 8-20-1-16 does not apply where a landowner has voluntarily dedicated his land to public use. Thus, because the street and the alley were established by a landowner's voluntary dedication of the property to public use, rather than by an action of the Board, the six-year statute does not apply. Accordingly, the trial court properly granted the Board's motion for summary judgment and denied the Edring-tons' motion for summary judgment.\\nJudgment affirmed.\\nNAJAM and CHEZEM, JJ., concur.\\n. This statute was repealed in 1988.\\n. LC. \\u00a7 8-20-1-16 refers to use \\\"within six (6) years from the time of its being so laid out\\\". Thus, if the statute were to apply in this case, the relevant six-year time period would be 1893-1899. There is no evidence in the record, however, regarding the use of the street and the alley during that time period.\\n. However, as the trial court noted, landowners such as the Edringtons are not without a remedy. IND.CODE \\u00a7 36-7-3-12 provides procedures for the vacation of a public way or public place upon petition. These procedures include notice to interested parties and a hearing on the petition.\"}"

ind/10914090.json

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+"{\"id\": \"10914090\", \"name\": \"OSCO, INC., Appellant-Defendant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellee-Plaintiff\", \"name_abbreviation\": \"Osco, Inc. v. St. Paul Fire & Marine Insurance Co.\", \"decision_date\": \"1995-10-25\", \"docket_number\": \"No. 46A03-9503-CV-95\", \"first_page\": \"548\", \"last_page\": \"550\", \"citations\": \"656 N.E.2d 548\", \"volume\": \"656\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:47:33.309509+00:00\", \"provenance\": \"CAP\", \"judges\": \"BAKER and KIRSCH, JJ., concur. |\", \"parties\": \"OSCO, INC., Appellant-Defendant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellee-Plaintiff.\", \"head_matter\": \"OSCO, INC., Appellant-Defendant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellee-Plaintiff.\\nNo. 46A03-9503-CV-95.\\nCourt of Appeals of Indiana.\\nOct. 25, 1995.\\nLaurence A. McHugh, Joseph R. Fullen-kamp, Kimberly D. Finlaw, Barnes & Thorn-burg, Indianapolis, for appellant.\\nJohn C. Hamilton, Doran, Blackmond, Ready Hamilton & Williams, South Bend, Stephen M. Kelley, Timothy J. Clarke, Donald J. Parthum, Jr., Kelley, Casey, & Clarke, P.C., Grosse Pointe Woods, Michigan, for appellees.\", \"word_count\": \"1052\", \"char_count\": \"6708\", \"text\": \"OPINION\\nROBERTSON, Judge.\\nOsco Inc., a business engaged in hauling waste oil, became Hable for pollution damage/environmental contamination to two Superfund sites under the Comprehensive Environmental Response Compensation and Liability Act [CERCLA]. Osco's insurer, the St. Paul Fire and Marine Insurance Company, initiated the present declaratory judgment action arguing Osco's claim was exelud-ed under the pollution exclusions of the insurance policies in question.\\nThe trial court entered judgment in favor of St. Paul on the issue of its duty to indemnify Osco for its CERCLA lability, and Osco appeals. The trial court entered judgment in favor of Osco on the issue of St. Paul's duty to defend Osco in the CERCLA matter and St. Paul appeals.\\nWe affirm the judgment in favor of St. Paul on the issue of the duty to indemnify. We reverse the judgment in favor of Osco on the issue of the duty to defend and reverse and remand with instructions that the trial court enter judgment in favor of St. Paul.\\nFACTS\\nThe operative facts are not disputed. Osco became obligated to pay damages under CERCLA with respect to environmental contamination at two Superfund sites for its part in hauling waste oil to these sites over the years. Both Superfund sites had been contaminated by the storage of waste oil in unlined lagoons and other storage methods that permitted the release of hazardous waste into the environment over a period of years.\\nOver the relevant years, Osco had had several insurance policies issued by St. Paul. Several of the policies involved in the present case had a standard pollution exclusion clause which read as follows:\\nThis insurance does not apply:\\n*# a\\nto bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalies, toxic chemicals, liquids, contaminants or pollutants into or on land, the atmosphere or any water course or body of water; but this exelusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.\\n(Emphasis added). One policy had the following exclusion:\\nPollution. We won't cover injury or damage caused by the discharge, dispersal, release or escape of pollutants such as.... This exelusion won't apply to sudden accidents involving pollutants.\\n(Emphasis added).\\nSt. Paul refused to defend or indemnify Oseo for the CERCLA liability and initiated the present declaratory judgment action. The matter was submitted to the trial court on cross motions for summary judgment. As noted above, the trial court entered judgment in favor of St. Paul on the issue of indemnification and entered judgment in favor of Osco on the issue of the duty to defend. Both parties have appealed (or cross-appealed) the respective judgments entered against them.\\nDECISION\\nOsco urges that the pollution exclusion does not operate because the term \\\"sudden\\\" does not involve a temporal element {does not mean \\\"quick\\\") and simply means an \\\"unexpected\\\" loss. Osco points out that some jurisdictions have adopted this interpretation and urge us to implement this interpretation.\\nHowever, the parties agree that Tennessee law governs the interpretation of the insurance policies in question. As such, the case of United States Fidelity & Guaranty Company v. Murray Ohio Manufacturing Company (M.D.Tenn.1988), 693 F.Supp. 617, affirmed 875 F.2d 868 (6th Cir.1989), guides our decision in the present case. The Murray eourt held that, with respect to the type of standard pollution exclusions involved in the present case, the term \\\"sudden\\\" combines both the idea of \\\"unexpected\\\" and the idea of \\\"quick.\\\" Id. at 621. The Murray court declined to read the temporal connotation out of the term \\\"sudden\\\" that it possesses in its everyday use. Id. Accordingly, the Murray court held that the pollution exclusion operated such that the insurance company had neither the duty to indemnify or defend the company faced with CERCLA lability for environmental contamination that had taken place over a period of years. Id. at 628.\\nOsco argues that it is covered under some of the St. Paul policies due to a \\\"broadening endorsement\\\" that provides coverage for personal injury claims due to wrongful entry or eviction, or other invasion of the right of private occupancy. We disagree. The pollution damage involved in the present case is not the type of personal injury covered under the endorsement and, in any event, the pollution exclusion of the policies in question nevertheless operates to deny coverage for the type of pollution damage involved in the present case. See Titan Corporation v. Aetna Casualty and Surety Company (1994), 22 Cal.App.4th 457, 27 Cal.Rptr.2d 476 (Pollution damage does not equate to personal injury an occupier of land might suffer when his right of occupancy was disturbed; such interpretation would negate the pollution exclusion); Accord O'Brien Energy Systems v. American Employers' Insurance Company (1993), 427 Pa.Super. 456, 629 A.2d 957, appeal denied; Gregory v. Tennessee Gas Pipeline Company (5th Cir.1991), 948 F.2d 203; American Universal Insurance Company v. Whitewood Custom Treaters, Inc. (D.S.D.1989), 707 F.Supp. 1140 (pollution exclusion carries over into the endorsement providing \\\"personal injury\\\" liability coverage).\\nCONCLUSION\\nThe pollution damage at the Superfund sites involved in the present case was caused by the storage of waste oil in unlined lagoons and other areas which permitted the oil to contaminate the environment over a period of years. Accordingly, the pollution exclusions of the St. Paul policies operate and St. Paul has neither the duty to defend nor indemnify Osco with respect to the CERCLA claims involved in the present case. Therefore, we affirm the judgment of the trial court with respect to the issue of the duty to indemnify. We reverse the judgment with respect to the issue of the duty to defend and reverse and remand with instructions that the trial court enter judgment in favor of St. Paul.\\nBAKER and KIRSCH, JJ., concur. |\\n. Indiana law requires the same result. Seymour Manufacturing Company, Inc. v. Commercial Union Insurance Company (1995), Ind.App., 648 N.E.2d 1214, 1219-20, trans. pending.\"}"

ind/10929590.json

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+"{\"id\": \"10929590\", \"name\": \"In re The Marriage of Vickie G. (Taylor) FRIAR, Appellant (Petitioner), v. Joel L. TAYLOR, Appellee (Respondent)\", \"name_abbreviation\": \"Marriage of Friar v. Taylor\", \"decision_date\": \"1989-11-02\", \"docket_number\": \"No. 18A02-8902-CV-040\", \"first_page\": \"599\", \"last_page\": \"601\", \"citations\": \"545 N.E.2d 599\", \"volume\": \"545\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:07:53.353733+00:00\", \"provenance\": \"CAP\", \"judges\": \"CONOVER, J., concurs.\", \"parties\": \"In re The Marriage of Vickie G. (Taylor) FRIAR, Appellant (Petitioner), v. Joel L. TAYLOR, Appellee (Respondent).\", \"head_matter\": \"In re The Marriage of Vickie G. (Taylor) FRIAR, Appellant (Petitioner), v. Joel L. TAYLOR, Appellee (Respondent).\\nNo. 18A02-8902-CV-040.\\nCourt of Appeals of Indiana, Second District.\\nNov. 2, 1989.\\nL. Ross Rowland, Lapin, Rowland & Doyle, Muncie, for appellant.\\nDonald H. Dunnuck, Dunnuck, Teagle & Hunt, Muncie, for appellee.\", \"word_count\": \"1351\", \"char_count\": \"8202\", \"text\": \"BUCHANAN, Judge.\\nCASE SUMMARY\\nPetitioner-appellant Vickie Friar (Vickie) appeals from the dissolution of her marriage to Joel Taylor (Joel), elaiming the trial court erred when it granted custody of Vickie's two youngest children to Joel, claiming they were not children of the marriage within the meaning of Ind.Code IC 81-1-11.5-2(c) (1988).\\nWe reverse.\\nFACTS\\nThe facts most favorable to the judgment reveal that the parties were married on February 5, 1970. Two children were born to the parties, and one died in 1981. The surviving child, Curtis, was born July 27, 1974. Joel underwent a vasectomy after Curtis was conceived. The vasectomy was checked one month after it was performed, and again a year later, and was found to have taken effect.\\nOn April 28, 1981, Vickie gave birth to her first daughter. On December 17, 1983, Vickie gave birth to her second daughter. Vickie admitted she committed adultery, and admitted Joel was not the father of the children. Vickie claimed that Joel had agreed to her plan to become impregnated by a third party, but Joel vehemently denied that claim.\\nVickie petitioned for dissolution on January 4, 1988, alleging all three children were children of the marriage. On January 15, 1988, Vickie was given provisional custody of the children and Joel was ordered to pay $80 per week in child support.\\nOn April 18, 1988, Joel filed for a blood grouping test of the children and the parties. On August 3, 1988, Joel filed a motion for relief from the January 15th temporary support order, claiming he was not the father of the two youngest children, and submitted the results of the blood test which showed a 00.00 percent probability he was the father of the two youngest children. On August 4, Vickie amended her petition for dissolution to reflect only one child of the marriage. On August 29, a judge pro-tem granted Joel's motion for relief, and reduced Joel's child support obligation to $40 per week. At a hearing on Joel's motion, both parties agreed Joel was not the father of the two youngest children.\\nA final hearing was held on September 26, 1988, and Joel indicated at that time he was not seeking custody of his child, Curtis. The trial court issued its findings on September 28, and signed the decree of dissolution on October 14, 1988. In the decree, the trial court determined that all three surviving children were \\\"born of the marriage,\\\" and gave custody of all three to Joel. The court also divided the property, giving the marital residence to Joel and a lien on the residence to Vickie to the extent of her equity in the property.\\nISSUE\\nVickie raises several issues. Because we reverse we only consider:\\nWhether the trial court erred when it awarded Joel custody of the two youngest children?\\nDECISION\\nPARTIES' CONTENTIONS-Vickie argues that the two children were not children of the marriage under the statute, and therefore the trial court could not determine their custody. Joel responds that equitable considerations support the custody award and therefore the trial court's action was proper.\\nCONCLUSION-The trial court committed reversible error in granting custody of the two youngest children to Joel.\\nThe statute defining the term \\\"child\\\" is a model of clarity for our purpose. It, IC 81-1-11.5-2(c), provides:\\n\\\"The term 'child' means a child or children of both parties to the marriage and includes children born out of wedlock to the parties as well as children born or adopted during the marriage of the parties.\\\" (Emphasis supplied.)\\nWe need no rule of construction to interpret such plain meaning. \\\"Both\\\" means both. To conclude otherwise is to mutilate the statute beyond recognition.\\nThis statute, enacted in 1985, was interpreted by the Indiana Supreme Court in 1987. Speaking for a unanimous court in State ex rel. McCarroll v. Marion County Superior Court No. 1 (1987), Ind., 515 N.E.2d 1124, 1125, Justice Givan said:\\n\\\"In the case at bar, Heather is not a child of both parties. She was not born out of wedlock to the parties nor had she been adopted by Kenneth at the time the respondent ordered custody to Virginia Brundage.\\nTherefore, we find that Heather is not 'a child' of the marriage of relator and Kenneth under Ind.Code \\u00a7 31-1-11.5-2 and 31~-1-11.5-7. Consequently, the respondent court exceeded its jurisdiction by ordering the custody of Heather to Virginia Brundage.\\\"\\nThus they concluded that the term \\\"child\\\" referred only to a child of both parties.\\nIn his motion for relief from the temporary support order, Joel asserted that the results of the blood tests ordered by the court revealed that there was a 00.00 percent probability that he was the biological father of the two youngest children. Record at 59-60. He testified that the blood tests conclusively determined he was not the biological father of the two youngest children, record at 166, and he concedes on appeal that he is not the biological father of the two youngest children. Appellee's Brief at 9. The trial court could not award Joel custody of the two youngest children under these cireumstances.\\nJoel argues that the equitable doctrines discussed in R.D.S. v. S.L.S. (1980), Ind.App., 402 N.E.2d 30 (Buchanan, J. dissenting), give the trial court the authority to award custody to him. While Joel makes a compelling argument that the burden of supporting the children should be imposed upon him, we cannot conclude these equitable doctrines extend the jurisdiction of the trial court and allow it to determine the custody of the two youngest children.\\nHis argument is that because he assumed the position of in loco parentis the trial court could award him custody. That doctrine, however, was developed to impose the obligation of support upon a man who intends to continue his relationship with children with whom he has assumed a parental status. The supreme court, in McCarroll, in effect determined that the trial court in a dissolution proceeding lacks the jurisdiction to determine the custody of children who are not children of both parties.\\nLastly, we must consider Vickie's contention as to the property division. In this regard there is IC 81-1-11.5-11(c)(8) (1988):\\n\\\"'The economic cireumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the fomily residence or the right to dwell in that residence for such periods as the court may deem just to the spouse having custody of any children.\\\" (Emphasis supplied.)\\nThe trial court in awarding custody of all of the children to Joel also gave him the family residence. In view of this error the whole property division question should be redetermined.\\nThe trial court's judgment is reversed and this cause is remanded for further proceedings consistent herewith.\\nCONOVER, J., concurs.\\nSULLIVAN, J., concurs with opinion.\\n. Ind.Code 31-6-6.1-8 (1988) provides, in pertinent part:\\n\\\"(a) Upon the motion of any party, the court shall order all the parties to the action to undergo blood testing. The tests shall be performed by a qualified expert approved by the court.\\n(b) The results of the tests, together with the finding of the expert constitute conclusive evidence if the results and finding exclude a party as the biological father of the child. The results and finding are admissible in all paternity proceedings, unless the court excludes the results for finding for good cause....\\\"\"}"

ind/10932270.json

@@ -0,0 +1 @@
+"{\"id\": \"10932270\", \"name\": \"Jerry W. KELLY, Appellant, v. STATE of Indiana, Appellee\", \"name_abbreviation\": \"Kelly v. State\", \"decision_date\": \"1989-06-01\", \"docket_number\": \"No. 52S02-8906-CR-433\", \"first_page\": \"25\", \"last_page\": \"26\", \"citations\": \"539 N.E.2d 25\", \"volume\": \"539\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T21:29:10.933528+00:00\", \"provenance\": \"CAP\", \"judges\": \"~ SHEPARD, CJ., and DICKSON, J., concur.\", \"parties\": \"Jerry W. KELLY, Appellant, v. STATE of Indiana, Appellee.\", \"head_matter\": \"Jerry W. KELLY, Appellant, v. STATE of Indiana, Appellee.\\nNo. 52S02-8906-CR-433.\\nSupreme Court of Indiana.\\nJune 1, 1989.\\nSusan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, India napolis, for appellant.\\nLinley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.\", \"word_count\": \"450\", \"char_count\": \"2795\", \"text\": \"DeBRULER, Justice.\\nAppellant Kelly was convicted on two counts and received consecutive eight (8) and (4) year sentences. The first was for operating while intoxicated, resulting in death, I.C. 9-11-2-2 and I.C. 9-11-2-5, the other for operating while intoxicated causing injury, I.C. 9-11-2-4. The Court of Appeals, Second District, affirmed the former and reversed the latter in an opinion appearing as Kelly v. State (1988), Ind.App., 527 N.E.2d 1148. Both parties have filed petitions to transfer. They are granted.\\nThe trial below was to the court upon a stipulation of facts. Kelly was intoxicated and, in such state, drove his semi-tractor into a small convoy consisting of two tractors and a pickup truck, each being driven by a member of the Wood family, killing one and injuring another.\\nOn appeal, Kelly made the following claims:\\n1. His consent to trial on the Stipulation as to Testimony was involuntary,\\n2. He received ineffective assistance from trial counsel,\\n3. His sentences were improper.\\nIn resolving the challenge to the sentences, the Court of Appeals concluded that there had been but a single accident that had resulted in the death and the personal injury, and that there had been but a single violation of 1.C. 9-11-2-2, the statute defining the crime of operating a vehicle while intoxicated. The court concluded that the legislative intent found in the language and construction of the statute is that where multiple egregious results are produced in a single accident by an intoxicated driver, such results do not increase the number of crimes, only the severity of the penalty. This interpretation of the statute and this application of the statute by the Second District is a true reading of the statute.\\nThe Second District also resolved the remaining claims of appellant Kelly against him in a correct manner. Accordingly this Court does now, per Justices DeBruler and Dickson and Chief Justice Shepard, pursuant to Appellate Rule 11, order that the opinion of the Second District not be vacated or held for naught, but instead that it be and now hereby is in all respects summarily affirmed. Justices Givan and Pivarnik vote to grant transfer and affirm the trial court in all respects, as they read the provisions of this same statute as calling for multiple crimes where multiple injuries or deaths occur as they did in this instance.\\nSummary affirmance ordered.\\n~ SHEPARD, CJ., and DICKSON, J., concur.\\nGIVAN and PIVARNIK, JJ., dissent.\"}"

ind/10935211.json

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+"{\"id\": \"10935211\", \"name\": \"In the Matter of the ESTATE OF Elizabeth D. COOK, Deceased\", \"name_abbreviation\": \"In re the Estate of Cook\", \"decision_date\": \"1988-10-25\", \"docket_number\": \"No. 70A01-8805-CV-170\", \"first_page\": \"853\", \"last_page\": \"855\", \"citations\": \"529 N.E.2d 853\", \"volume\": \"529\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T01:58:41.559688+00:00\", \"provenance\": \"CAP\", \"judges\": \"RATLIFF, C.J., and SULLIVAN, J., concur.\", \"parties\": \"In the Matter of the ESTATE OF Elizabeth D. COOK, Deceased.\", \"head_matter\": \"In the Matter of the ESTATE OF Elizabeth D. COOK, Deceased.\\nNo. 70A01-8805-CV-170.\\nCourt of Appeals of Indiana, First District.\\nOct. 25, 1988.\\nLinley E. Pearson, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for appellant.\\nRobert J. Eder, Earnest, Foster, Eder, Levi & Northam, Rushville, for appellee.\", \"word_count\": \"1055\", \"char_count\": \"6572\", \"text\": \"NEAL, Judge.\\nSTATEMENT OF THE CASE\\nThe Indiana Department of State Revenue, Inheritance Tax Division (the State), appeals an adverse judgment entered by the Rush Circuit Court denying its petition for rehearing and redetermination of tax.\\nWe affirm.\\nSTATEMENT OF THE FACTS AND ISSUE\\nElizabeth D. Cook (the decedent) died testate after which her last will and testament naming her only heir, her son, Charles E. Cook (Cook), as sole beneficiary and executor was admitted to probate on October 2, 1986. The court appointed Cook executor and authorized administration without supervision. During the administration of the estate, Cook, acting under his authority as executor, sold the decedent's real estate located in Rushville, Indiana, utilizing the services of a realtor and an abstractor. The expenses for the services of the realtor and abstractor, $3,850 and $290 respectively, were listed as a deduction under Schedule D in the schedule of all property. Cook stated that the reason for the sale was that he lived in Crown Point and the Rushville property was of no use to him as he had no experience in handling rentals. The proceeds of 'the sale were ultimately distributed to Cook personally upon final settlement of the estate.\\nThe State challenges the inclusion of the realtor and abstractor's fees in Schedule D. Exclusion of those fees would increase the estate tax liability $207.\\nDISCUSSION AND DECISION\\nWhere a personal representative is authorized to proceed with unsupervised administration, he has the power to sell estate real estate at public or private sale and employ agents and persons to assist him. He has the power to pay all expenses incurred in the administration of the estate. IND. CODE 29-1-7.5-8. Under IND. CODE 29-1-15-21 a personal representative may employ a broker and incur abstract fees in selling real estate. Making distribution of the estate or any part thereof is a proper basis for a sale of real estate. IND. CODE 29-1-15-3(f). The power of the unsupervised personal representative to employ personnel to assist him in disposing of estate property is limited only to that which the court determines to be reasonable. 1B G. Henry, Probate Law and Practice at 605 (Tth ed. 1978).\\nIND. CODE 6-4.1-8-18 permits certain deductions from the gross estate for inheritance tax purposes.\\n(a) For purposes of this section, the term \\\"property subject to the inheritance tax\\\" means property transferred by a decedent under a taxable transfer.\\n(b) The following items, and no others, may be deducted from the value of property interests transferred by a resident decedent under his will, under the laws of intestate succession, or under a trust:\\n(9) Expenses incurred in administering property subject to the inheritance tax, including but not limited to reasonable attorney fees, personal representative fees, and trustee fees;\\nConceding that Indiana has no statute or case which so holds, the State argues that a sole heir-executor may not deduct the expenses of selling real estate where the sale was for his benefit and not for the benefit of the estate. It argues that an ambiguity exists in the statutory scheme, in which case we must construe it against the party claiming the deduction. Matter of Estate of Pfeiffer (1983), Ind.App., 452 N.E.2d 448. The State further claims that an expense that is not actually necessary for the settlement of the estate does not constitute an administrative expense for tax purposes. Hence, it concludes that the expenses incurred here were for the benefit of the sole heir and not the estate. Thus, it does not qualify as a Schedule D deduction.\\nWe accept the argument that costs and expenses of administration are generally considered those necessary in the administration of the estate, and that only proper expenses are eligible for Schedule D deductions. We agree that excessive expenses or those incurred in matters not connected with the estate are not deductible: However, we reject the contention that reasonable expenses incurred in selling the property of the estate are deductible only if the sale is absolutely necessary in order to pay the decedent's debts, expenses of administration, taxes, expenses necessary to preserve the estate, or to effect distribution.\\nIn order to resolve this case we need not engage in statutory construction or analyze minutely the cases from other jurisdictions and the statutes upon which they were decided, for the statutory scheme in Indiana is clear and unambiguous. In re Estate of Coffman (1979), 181 Ind.App. 348, 391 N.E.2d 861. The determination and collection of inheritance taxes and the rights and obligations of both the Department of State Revenue and the taxpayers are governed exclusively by statute. Indiana Department of State Revenue v. Estate of Rogers (1984), Ind.App., 459 N.E.2d 69.\\nIn this instance the executor was empowered by statute to sell the real estate in order to make distribution. The statute does not, as urged by the State, impose any limitation upon that power because only one beneficiary existed instead of several. The statutes authorize him to incur these expenses. The fees charged are not al leged to be unreasonable. In plain words, the statute provides that expenses incurred in administering property subject to inheritance tax are deductible, Consequently, realtor and abstract fees are deductible.\\nAll experienced probate practitioners are aware that in the administration of estates decisions are commonly made which reflect the personal desires of the beneficiaries and are not governed by some stark necessity. Such decisions include the desire of a widow or heir or multiple heirs, to distribute a going business in kind or sell it, cash securities or keep them, and sell real estate or personal property where retaining it is inconvenient, cumbersome, or impractical. The interest of the estate normally parallels that of the beneficiaries. If the legislature had desired that expenses incurred as a result of these judgment matters be excluded from Schedule D deductions, it would have said so. It did not. It is not our prerogative to enlarge upon the legislative policy. ~\\nFor the above reasons, this cause is affirmed.\\nJUDGMENT AFFIRMED.\\nRATLIFF, C.J., and SULLIVAN, J., concur.\"}"

ind/10975637.json

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+"{\"id\": \"10975637\", \"name\": \"DEARBORN FABRICATING AND ENGINEERING CORP., INC,, Appellant (Defendant Below), v. William D. WICKHAM, Pamela Wickham, Le Ann Wickham, and Jennifer Wickham, Appellees (Plaintiffs Below)\", \"name_abbreviation\": \"Dearborn Fabricating & Engineering Corp. v. Wickham\", \"decision_date\": \"1990-03-27\", \"docket_number\": \"No. 71S03-9003-CV-228\", \"first_page\": \"1135\", \"last_page\": \"1139\", \"citations\": \"551 N.E.2d 1135\", \"volume\": \"551\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:46:05.706343+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHEPARD, C.J., and DeBRULER and GIVAN, JJ., concur.\", \"parties\": \"DEARBORN FABRICATING AND ENGINEERING CORP., INC,, Appellant (Defendant Below), v. William D. WICKHAM, Pamela Wickham, Le Ann Wickham, and Jennifer Wickham, Appellees (Plaintiffs Below).\", \"head_matter\": \"DEARBORN FABRICATING AND ENGINEERING CORP., INC,, Appellant (Defendant Below), v. William D. WICKHAM, Pamela Wickham, Le Ann Wickham, and Jennifer Wickham, Appellees (Plaintiffs Below).\\nNo. 71S03-9003-CV-228.\\nSupreme Court of Indiana.\\nMarch 27, 1990.\\nR. Kent Rowe, Jerry E. Huelat, Martin J. Gardner, Rowe, Foley & Huelat, South Bend, for appellant.\\nDouglas A. Mulvaney, Stutsman Law Office, Elkhart, for appellees.\", \"word_count\": \"2273\", \"char_count\": \"14151\", \"text\": \"DICKSON, Justice.\\nThis case presents a question of first impression in Indiana: whether a minor child has an independent claim for loss of parental consortium when a parent is negligently injured by a third person. The trial court and the Court of Appeals held that minor children may assert such a claim. Dearborn Fabricating and Eng'g Corp. v. Wickham (1988), Ind.App., 582 N.E.2d 16.\\nWilliam D. Wickham; his wife, Pamela; and their two children, Le Ann and Jennifer, filed a complaint against Dearborn Fabricating and Engineering Corp. seeking damages for personal injuries William sustained when he fell through a hole in a catwalk. Count VII alleged a cause of action on behalf of Le Ann and Jennifer for the loss of the support, services, society and companionship of their father. < Dear-born filed a motion to dismiss Count VII for failure to state a claim for relief. The trial court granted the motion in part by striking the word \\\"support\\\" (which the Wickhams do not challenge) and denied the motion as to the balance of the allegations. Id.\\nWriting for the Third District Court of Appeals, Judge Staton, with Judges Gar-rard and Miller concurring, noted that seven states since 1980 have recognized the action, but that thirty-three jurisdictions still refuse to do so. Id. See also Annotation, Child's Right of Action for Loss of Support, Training, Parental Attention, or the Like, Against a Third Person Negligently Injuring Parent, 11 AL.R.Ath 549 (1982). After identifying five arguments advanced by those courts declining to recognize the cause of action, the Court of Appeals opinion succinetly evaluated each argument with sound reasoning and concluded that Indiana should recognize a minor's cause of action for loss of consortium when the parent is negligently injured by a third party. Since its decision in Dear-born, the Third District Court of Appeals, comprised of a panel of judges different from those in Dearborn, decided Bourton-Malow Co., Inc. v. Wilburn (1989), Ind. App., 547 N.E.2d 1128, in which Judges Hoffman and Shields (Staton, J., dissenting on this issue) declined to follow Dearborn, preferring to leave the issue for legislative resolution. To the contrary, we find the question of whether the common law should recognize a child's action for loss of parental consortium to be entirely appropriate for judicial determination. We grant transfer to review this new question of law.\\nOne of the strongest arguments favoring the recognition of damages for loss of parental consortium is its similarity to damages customarily allowed for others with analogous claims. In the converse of the present facts, injuries to a child will entitle a parent to seek damages for loss of the child's services, society, and companionship. School City of Gary v. Claudio (1980), Ind.App., 418 N.E.2d 628. Similarly, an injured person's spouse may bring an action for loss of consortium. Troue v. Marker (1969), 258 Ind. 284, 252 N.E.2d 800 (wife's claim)} Burk v. Anderson (1952) 282 Ind. 77, 109 N.E.2d 407 (husband's claim). Absent overriding considerations, relationship losses suffered by a child of an injured person should receive comparable treatment.\\nThe appellant-defendant Dearborn argues that one such consideration is the childbearing and sexual relations aspect of the spousal relationship not present in that of parent and child. The \\\"predominant element\\\" in the concept of consortium has been described as the loss of the sexual relationship. - Nee Salin v. Kloempken (1982), Minn., 822 N.W.2d 786, 738 (quoting Thill v. Modern Erecting Co. (1969), 284 Minn. 508, 510-11, 170 N.W.2d 865, 867-68).\\nThere are significant differences between the marital relationship and the parent-child relationship that support the limitation of a cause of action for loss of consortium to the marital relationship. As we stated above, the spousal action rests in large part on the deprivation of sexual relations and the accompanying loss of childbearing opportunity, which does not exist as an element of damages in the child's action.\\nSalin, 822 NW.2d at 789. However, we view such deprivation as but one component of a spouse's consortium action. \\\"The other elements-love, companionship, affection, society, comfort, services and solace-are similar in both relationships and in each are deserving of protection.\\\" Berger v. Weber (1981), 411 Mich. 1, 14, 808 N.W.2d 424, 426.\\nAnother difference often discussed is that actions by children for loss of parental consortium create problems of multiplication of actions and damages not present in the spousal context.\\nIf the claim were allowed there would be a substantial accretion of liability against the tortfeasor arising out of a single transaction (typically the negligent operation of an automobile). Whereas the assertion of a spouse's demand for loss of consortium involves the joining of only a single companion claim in the action with that of the injured person, the right here debated would entail adding as many companion claims as the injured parent had minor children, each such claim entitled to separate appraisal and award. The defendant's burden would be further enlarged if the claims were founded upon injuries to both parents. Magnification of damage awards to a single family derived from a single accident might well become a serious problem to a particular defendant as well as in terms of the total cost of such enhanced awards to the insured community as a whole.\\nBorer v. American Airlines, Inc. (1977), 19 Cal.3d 441, 449, 568 P.2d 858, 868, 188 Cal.Rptr. 302, 307 (quoting Russell v. So-lem Transportation Co. (1972), 61 NJ. 502, 506, 295 A.2d 862, 864).\\nThe Supreme Court of Michigan responded to such an argument by noting that \\\"[m jultiplicity of actions arising out of the same tortious act are a present reality in tort law. - Multiple actions may result whenever a single tortious act injures more than one person or property owned by more than one person.\\\" Berger, 411 Mich. at 14, 308 NW.2d at 426. Although our Court of Appeals found that \\\"concern for multiple claims and protracted litigation can be minimized by requiring joinder of the minor's consortium claim with the injured parent's claim unless it is not feasible in a particular case[,]\\\" 582 N.E.2d at 17, it did not discuss the effect of Ind.Code \\u00a7 34-1-2-5, which tolls the statute of limitations during minority. As noted by the Supreme Court of Minnesota, such a tolling statute \\\"establishes a roadblock to joinder in parental consortium cases that could be removed only by enactment of legislation creating a uniform limitations period for both the parent's action for personal injuries and the child's action for loss of parental consortium.\\\" Salin, 822 N.W.2d at 740.\\nMore significant to us than this possible roadblock to consolidation created by the minors' statute of limitations, is the potential harm to the family which may be generated in children's actions for loss of consortium. We are particularly concerned that each claim for such damages will invite defendants to minimize the claim by seeking to prove inadequacy and weakness of a child's familial relationships, resulting in pretrial investigation, depositions, trial testimony, and final argument attacking the quality of parent-child relationship enjoyed by the child before the parent's injuries. Many loving children heretofore content would thus be likely to suffer significant emotional harm inflicted by the litigation process itself, in addition to that already resulting from the parent's injuries.\\nWhile the parent-child relationship may presently be attacked in the litigation of a parent's claim for loss of services, society, and companionship resulting from tortious injuries to a child, we perceive such efforts as directed more at the adult parent claiming the loss, with negligible potential for personal attack upon a child's values and perceptions. Furthermore, an adult pursuing a claim for loss of society and companionship or spousal consortium takes on the risk of litigation assault upon the familial relationship knowingly and voluntarily. But this is not so for a child. The parent's attorney will likely include the child's claim with that of the parent as a matter of course.\\nIt is this consideration which persuades us that a child's loss of consortium claim may be distinguished and treated differently from that of a parent or a spouse.\\nHowever, we acknowledge that this distinction has not been applied to preclude a child's damage claims in actions for the wrongful death of a parent. In actions brought under Ind.Code \\u00a7 34-1-1-2, recovery is allowed for loss of care, love and affection sustained by a decedent's spouse and the loss of parental care, training and guidance sustained by a decedent's children during their minority. See Andis v. Hawkins (1986), Ind.App., 489 N.E.2d 78, 82. The Supreme Court of Arizona noted:\\n[O]ften death is separated from severe injury by mere fortuity. [citation omitted| Both may cause a deleterious impact on the quality of consortium. It would be inconsistent to allow recovery for loss of consortium resulting from death but to deny recovery when the loss results from severe injury.\\nVillareal v. State, Dept. of Transportation (1989), 160 Ariz. 474, 479, 774 P.2d 213, 218.\\nOther courts have recognized \\\"two significant distinctions between the child whose parent is killed and one whose parent is disabled, both of which flow from the fact that in the latter case the living victim retains his or her own cause of action.\\\" Borer, 19 Cal.3d at 452, 563 P.2d at 865, 138 Cal.Rptr. at 309. The first distinction relates to the historical purpose of wrongful death statutes. At common law, the heirs of a deceased victim could not bring a cause of action against the tortfeasor.\\nThis loophole in the law curtailed the deterrent function of tort recovery, providing to tortfeasors a substantial incentive to finish off their victims. The wrongful death statutes thus met an obvious logical and social need.\\nSimilar policy reasons led the courts to permit the bereaved to recover for the loss of the affection and society of the deceased.... Recovery for loss of affection and society in a wrongful death action thus fulfills a deeply felt social belief that a tortfeasor who negligently kills someone should not escape liability completely, no matter how unproductive his victim.\\nId. at 452, 563 P.2d at 865, 138 Cal.Rptr. at 309. Where the parent is injured but not killed, the tortfeasor cannot \\\"escape with impunity,\\\" because the immediate victim retains a cause of action for his injuries; the child's claim is not essential to prevent the tortfeasor from totally escaping liability. Id. at 452, 563 P.2d at 866, 183 Cal.Rptr. at 310.\\nThe second distinction is that the wrongful death action serves as the only means by which the family unit can recover compensation for the loss of parental care and services when a parent is tortiously killed. \\\"While the parent lives, however, 'the tangible aspects of the child's loss can be compensated in the parent's own cause of action.[']\\\" [emphasis in original] Id. at 452, 563 P.2d at 866, 138 Cal.Rptr. at 810 (quoting Suter v. Leonard (1975), 45 Cal. App.3d 744, 748, 120 Cal.Rptr. 110, 112).\\nBut where the parent dies, compensation for loss of parental care and services can be recovered only through a wrongful death action. Whether or not this compensation encompasses recovery for the child's loss of society and companionship in addition to more pecuniary items such as lost wages from which support would have been furnished, the availability of some reparation for disadvantage to the child and to the victim's family furnishes a sufficient basis for allowing the child to recover for lost society and companionship in the case of a parent's death but not in the case of parental injury.\\nBerger, 411 Mich. at 48, 808 N.W.2d at 441-42 (Levin, J., dissenting).\\nFurthermore, we perceive a distinguishing difference between the relationship harm which could result from the litigation of a child's claim for the wrongful death of a parent and that from a child's loss of consortium claim when the parent is not fatally injured. In the latter event, the parent-child relationship continues and may well be negatively affected by litigation damage, perhaps resulting in enhanced emotional harm. In the former, the relationship is but a memory and not generally subject to consequential alteration. In addition, common decency would likely dampen any inclination to attack the quality of the relationship enjoyed by a surviving child with his late parent.\\nIt is therefore our conclusion that, apart from wrongful death actions, a child may not maintain an action for loss of parental consortium when the parent is negligently injured by a third person. We therefore vacate the opinion of the Court of Appeals, reverse the trial court's denial of the defendant's motion to dismiss Count VII, and remand this case to the trial court for further proceedings not inconsistent with this opinion.\\nSHEPARD, C.J., and DeBRULER and GIVAN, JJ., concur.\\nPIVARNIK, J., not participating.\\n. Since the Court of Appeals decision, an additional jurisdiction recognized the cause of action, Villareal v. State, Dept. of Transportation (1989), 160 Ariz. 474, 774 P.2d 213, and two others declined to do so. Gaver v. Harrant (1989), 316 Md. 17, 557 A.2d 210; Vaughn v. Clarkson (1989), 324 N.C. 108, 376 S.E.2d 236.\\n. This holding applies only to a child's action for loss of parental consortium. It does not preclude recovery for psychological or medical expenses, or other special damages, incurred by or on behalf of a child which proximately results from tortious injuries to a parent.\"}"

ind/11023350.json

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+"{\"id\": \"11023350\", \"name\": \"George F. POTEET, Appellant (Defendant Below), v. Monica BETHKE and Daniel Bethke, Appellees (Plaintiffs Below)\", \"name_abbreviation\": \"Poteet v. Bethke\", \"decision_date\": \"1987-05-18\", \"docket_number\": \"No. 46A04-8608-CV-263\", \"first_page\": \"652\", \"last_page\": \"657\", \"citations\": \"507 N.E.2d 652\", \"volume\": \"507\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T01:55:02.527512+00:00\", \"provenance\": \"CAP\", \"judges\": \"RATLIFF, C.J., and CONOVER, PJ., concur.\", \"parties\": \"George F. POTEET, Appellant (Defendant Below), v. Monica BETHKE and Daniel Bethke, Appellees (Plaintiffs Below).\", \"head_matter\": \"George F. POTEET, Appellant (Defendant Below), v. Monica BETHKE and Daniel Bethke, Appellees (Plaintiffs Below).\\nNo. 46A04-8608-CV-263.\\nCourt of Appeals of Indiana, Fourth District.\\nMay 18, 1987.\\nFred M. Stults, Jr., Stults, Custer, Ku-tansky & McClean, Gary, David L. Zoss, Stults, Custer, Kutansky & McClean, Valparaiso, for appellant.\\nDonald E. Transki, Michigan City, for appellees.\", \"word_count\": \"3068\", \"char_count\": \"18713\", \"text\": \"YOUNG, Judge.\\nGeorge Poteet appeals the partial denial of his \\\"Motion to Vacate Default Judgment.\\\" The only issue presented by his appeal is whether the trial court abused its discretion in not vacating the entire judgment on the basis that it was void for lack of personal jurisdiction. We reverse.\\nOn February 28, 1984, an automobile accident occurred involving vehicles driven by George Poteet and Monica Bethke. Monica and her daughter sustained injuries as a result of the accident. At the time the accident occurred, Poteet was living at 806 Liberty Street in Westville, Indiana and he gave that address to the investigating officer.\\nDue to marital difficulties, Poteet moved in September of 1984 from the Liberty Street address to 111 South Porter Street in Michigan City, Indiana. He did, however, apparently receive a letter from the Bethkes' attorney which had been sent to the Liberty Street address in October of 1984.\\nBy December 13, 1984, Poteet's insurer, Metropolitan, apparently had reached a settlement with the Bethkes' as to Monica's claim and had sent a $50,000 draft and a \\\"Release of All Claims\\\" form to the Bethkes. Although the Bethkes' cashed the draft, they failed to return the release form. On December 14, 1984, Poteet filed a form with the U.S. Post Office requesting that his address be changed from the Liberty Street address in Westville to the Porter Street address in Michigan City. Al though Poteet still resides in Michigan City, he moved from the Porter Street address to 107 Nevada Street in March of 1985. He did not file a change of address request when he made this move.\\nOn July 8, 1985, the Bethkes filed suit against Poteet. Service upon Poteet was made by sheriff who attached the summons and complaint to the door of 806 Liberty Street in Westville. A copy of the summons was sent to that same address by registered mail. Although Poteet's ex-wife, Jeanne Loane, had vacated the premises on July 1, 1985, she found the documents when she returned to prepare the house for sale. Not knowing what to do with the documents or where to locate Po-teet, Loane placed the documents in her car until later in the summer when she happened to see a county police officer. Loane gave the documents to the officer who said that he would take care of the matter. On August 7, 1985, the Bethkes obtained a default judgment against Poteet in the amount of $1,000,000.\\nOn or about August 10, 1985, Poteet's roommate at the Porter Street address received a copy of the summons and complaint. He stated in an affidavit that he delivered them to Poteet the same day he received them. Poteet claims to have received the documents on August 11, 1985. On August 19, 1985, Poteet was contacted at his place of employment by Fred Stults who had been hired as Metropolitan's attorney on August 15, 1985. Stults had located Poteet through the Westville Post Office and Poteet's former Porter Street landlord. Stults filed a motion to vacate the default judgment on behalf of Poteet on September 9, 1985. Except as to the issue of damages, the motion was denied.\\nPoteet claims that because he was not properly served with notice of the suit, the judgment against him was void for lack of personal jurisdiction and the trial court should therefore have vacated the entire judgment. Where the trial court lacks personal jurisdiction, the judgment is void. Smith v. Tisdal (1985), Ind.App., 484 N.E.2d 42. A void judgment is of no force or effect, Id., and must be set aside whether the party seeking relief does so by separate action or by a motion pursuant to Trial Rule 60(B)(6). Harvey, 4 Indiana Practice 215 (1971). Therefore the only issue we must resolve is whether the service upon Poteet was insufficient to render him subject to the trial court's jurisdiction.\\nService upon an individual may be made by leaving a copy of the summons and complaint at his dwelling house or usual place of abode. Ind. Rules of Procedure, Trial Rule 4.1(A)(8). The Bethkes rely upon Grecco v. Campbell (1979), 179 Ind.App. 530, 386 N.E.2d 960, for the proposition that 306 Liberty Street was Poteet's dwelling house or usual place of abode and therefore service upon him was properly made. As the court in Grecco noted, however, \\\"[what is or is not a party's 'dwelling house or usual place of abode' within the context of T.R. 4.1 is a question that must be determined on the particular facts of each case.\\\" Id. at 533, 386 N.E.2d at 962. The facts of this case are clearly distinguishable from those presented in Grecco.\\nIn Grecco, the summons and complaint were left at a house owned by the defendant while the defendant was staying with relatives due to illness and marital problems. The defendant found the documents upon his return to the house. He had been absent for approximately a month Default judgment was not entered until two weeks after the defendant had found the documents and sent them to his insurance company. In holding that the residence constituted the defendant's dwelling house or usual place of abode, the court specifically noted that the defendant was living in the house both prior to and after his problems and that he referred to his return as \\\"returning home.\\\" Id.\\nIn this case, Poteet had left the Liberty Street address approximately ten months before the summons and complaint were left there. Furthermore, Poteet's absence from that address was not temporary as was the case in @receo. Poteet had left the address permanently. Under these facts, we cannot conclude that the Liberty Street address was Potecet's dwelling house or usual place of abode. The service upon Poteet was therefore defective.\\nThe Bethkes argue that even if the service was defective it should not be set aside because it was reasonably calculated to inform Poteet of the action being instituted against him. (Appellee's Brief, p. 6 citing Ind.Rules of Procedure, Trial Rule 4.15(F) ). They essentially base their ar gument on the fact their attorney sent a copy of the complaint to Poteet's insurer and therefore it was aware of the suit. Apparently, the Bethkes are contending that Metropolitan was Poteet's agent for service of process or that giving notice to a liability insurer is reasonably calculated to inform the defendant of the pending litigation. We find both contentions unpersuasive in this case.\\nIn order for service to be based upon an agency relationship, the agent must have been designated to receive such service by or pursuant to a statute or a valid agreement. Ind.Rules of Procedure, Trial Rule 4.7. There is no evidence that such a designation existed in this case.\\nWe have found no Indiana cases which address whether a plaintiff may serve a defendant's liability insurer absent a statutory or contractual designation of the insurer as the defendant's agent for the purpose of service of process. The cases from other jurisdictions which have addressed the issue have done so in terms of a specific procedural rule which gave the trial court the discretion to permit a method of service not provided by other rules. Krueger v. Williams (1981), 410 Mich. 144, 300 N.W.2d 910 (interpreting GCR 1963, 105.8); Silvas v. Kelly (1984), 136 Mich.App. 790, 357 N.W.2d 772 (interpreting GCR 1963, 105.8); Feuchtbaum v. Constantini (1971), 59 N.J. 167, 280 A.2d 161 (interpreting R. 4:4-4(i)); Austin v. Millard (1978), 164 N.J.Super, 219, 395 A.2d 1267 (interpreting R. 4:4-4(i); Ledbetter v. Schnur (1969), 107 N.J.Super. 479, 259 A.2d 237 (interpreting R. 4:4-4(); Young v. Bunny Bazaar, Inc. (1969), 107 N.J.Super. 320, 258 A.2d 158 (interpreting R. 4:4-4); Rudikoff v. Byrne (1968), 101 N.J.Super. 29, 242 A.2d 880 (interpreting R. 4:4-4(}) in conjunction with New York CPLR 808(4)); Dobkin v. Chapman (1968), 21 N.Y.2d 490, 289 N.Y.S.2d 161, 286 N.E.2d 451 (interpreting CPLR 8308(4)); Lerman v. Church (N.Y. Supreme Ct.1967) 54 Misc.2d 402, 282 N.Y.S.2d 622 (interpreting CPLR 308(4)); Pieret v. Murray (1969) 59 Misc.2d 201, 298 N.Y.S.2d 201 (interpreting CPLR 808(4)).\\nIndiana has a rule similar to those addressed in the aforementioned cases. This rule provides:\\nUpon application of any party the court in which any action is pending may make an appropriate order for service in a manner not provided by these rules when such rule is reasonably calculated to give the defendant actual knowledge of the proceedings and an opportunity to be heard.\\nInd.Rules of Procedure, Trial Rule 4.14(B). The Bethkes, however, did not apply for a court order permitting them to serve Po-teet's insurer. Furthermore, an order permitting such service would have been inappropriate in this case.\\nIn determining whether service may be made upon the defendant's insurer, courts generally have considered four factors: 1) the plaintiff's need, 2) the public interest, 3) the reasonableness of the plaintiff's efforts to inform the defendant, and 4) the availability of adequate safeguards for the defendant. See eg. Krueger v. Williams (1981), 410 Mich. 144, 300 N.W.2d 910; Feuchtbaum v. Constantini (1971), 59 N.J. 167, 280 A.2d 161; Dobkin v. Chapman (1968), 21 N.Y.2d 490, 289 N.Y.S.2d 161, 286 N.E.2d 451. The plaintiff's need has been found to be apparent from the widespread potential for damage by motorists which exists due to our mobile population. Dobkin v. Chapman (1968), 21 N.Y.2d 490, 289 N.Y.S.2d 161, 169, 236 N.E.2d 451, 459. The public interest generally has been evidenced by proof of financial responsibility requirements, state recovery funds and provisions for service upon non-resident motorists. Id. but see Ledbetter v. Schnur (1969), 107 N.J.Super. 479, 259 A.2d 237 (public interest is best protected by discouraging the deliberate or inadvertent evasion of service). Adequate safeguards for the defendant's interests have been found to be available to the defendant by his ability to leave a forwarding address with the postal authorities, the police, his employer, his insurer or the plaintiff, Feuchtbaoum v. Constantini (1971), 59 N.J. 167, 280 A.2d 161, and a requirement that motorists inform the state licensing agency of any change in address. Dobkin v. Chapman (1968), 21 N.Y.2d 490, 289 N.Y.S.2d 161, 236 N.E.2d 451. The New Jersey Supreme Court, however, has noted that the opportunity for relief from judgment is an available safeguard for the defendant's interest. Feuchtboum v. Constantini (1971), 59 N.J. 167, 280 A.2d 161. In all of the cases which have discussed the issue, the issue was determined on the basis of the reasonableness of the plaintiff's efforts to inform the defendant.\\nWhere the court has held that service upon the defendant's insurer was proper, it was apparent that the plaintiff had undergone extensive efforts to inform the defendant. Krueger v. Williams (1981), 410 Mich. 144, 300 N.W.2d 910 (the plaintiff made diligent efforts to locate the defendant by hiring investigators who checked various locations); Feuchtbaum v. Constantint (1971), 59 N.J. 167, 280 A.2d 161 (the plaintiff apparently tried to locate the defendant through postal authorities, the police, the defendant's employer, and the defendant's insurer); Ledbetter v. Schnur (1969), 107 N.J.Super. 479, 259 A.2d 237 (the plaintiff made inquiries at the defendant's former New Jersey address, sent letters to that address which were returned marked \\\"moved leaving no forwarding address,\\\" made inquiries at the defendant's last known place of employment, the New Jersey Department of Motor Vehicles, the Maryland Department of Motor Vehicles and the Maryland police); Young v. Bunny Bazaar, Inc. (1969), 107 N.J.Super. 320, 258 A.2d 158 (the plaintiff made \\\"numerous attempts\\\" to locate defendant); Rudikoff v. Byrne (1968), 101 N.J.Super. 29, 242 A.2d 880 (the plaintiff made \\\"diligent inquiry\\\" which apparently included inquiry with New York authorities of which the defendant was legally obligated to inform of a change in his address); Dobkin v. Chapman (1968), 21 N.Y.2d 490, 289 N.Y.S.2d 161, 236 N.E.2d 451 (the plaintiff inquired about the defendant's whereabouts with the defendant's former neighbors, former employer, the New York Bureau of Motor Vehicles and the defendant's insurer. The plaintiff also sent mail to the defendant's new residence in California which was returned marked \\\"Moved-Left No Address.\\\" \\\"Further attempts\\\" were also unsuccessful); Lerman v. Church (N.Y.Sup.Ct.1967), 54 Misc.2d 402, 282 N.Y.S.2d 622 (\\\"efforts at personal service upon the defendant at last known address were futile,\\\" the process server was informed that the defendant had moved leaving no forwarding address despite the fact that the owner of automobile in which the plaintiff was a passenger had managed to serve the defendant on an earlier occasion).\\nFurther, the cases which have held that an order allowing such service was improper have done so on the basis that the plaintiff failed to show he made reasonable efforts to locate the defendant. Silvas v. Kelly (1984), 136 Mich.App. 790, 357 N.W.2d 772 (case remanded for determination of whether the affidavit of the plaintiff's investigator stated a sufficient factual foundation for obtaining the order despite the appellate court noting that extensive investigation apparently had taken place); Austin v. Millard (1978), 164 N.J. Super. 219, 395 A.2d 1267 (the plaintiffs failed to show they made any efforts to locate defendant or that such efforts would be futile); Pieret v. Murrey (1969), 208 Misc.2d 201, 298 N.Y.S.2d 201 (the plaintiff failed to show that service as provided by rules was impracticable; the court would grant order with the following information: affidavit by the plaintiff stating how long she knew the defendant and whether she ever knew where he worked; affidavit by the process server setting forth the names and addresses of the defendant's neighbors to whom he had spoken; a copy of the police blotter; copy of envelope returned by the post office stating that the defendant had moved and left no forwarding address; a letter from the motor vehicle department indicating whether their records showed the defendant had a driver's license and if so, under what address; a statement by the plaintiff's attorneys as to what they did to obtain information arising out of the deposition by the criminal court as to the issuance of a summons by the police to the defendant for operating a vehicle without a license).\\nIn this case, the Bethkes would not have been entitled to an order permitting them to serve Poteet's insurer even if they had applied for one under T.R. 4.14. The evidence shows that they made only one attempt to serve Poteet and fails to disclose any inquiries of Poteet's former neighbors, the postal authorities, or the motor vehicle department as to Poteet's current residence. While the Bethkes argue that Poteet would have received notice had he not violated federal regulations by failing to leave a change of address request with the postal authorities upon moving from Porter Street to Nevada Street, we find the argument unpersuasive. The Bethkes provide no authority for the proposition that citizens are required to inform postal authorities of a change of address. Rather, they merely cite to a Postal Bulletin which informs post office employees of how such requests are to be handled.\\nAlthough one court has noted that it is not unfair to allow service on the insurer because a defendant can avoid not receiving personal notice by keeping the state licensing agency, his insurer or the other party informed of his address, the court also noted that these things should be done until the defendant is reasonably assured that no claim will be asserted against him. Dobkin v. Chapman (1968), 21 N.Y.2d 490, 289 N.Y.S.2d 161, 169, 236 N.E.2d 451, 459. In this case, Poteet was reasonably assured that a claim by the Bethkes would not be asserted against him for Monica's injuries. Seven months prior to the suit, the Bethkes had cashed a $50,000 insurance draft which stated it was \\\"final payment for claims arising from [the] accident on 2/28/84.\\\" Under these circumstances, it would have been unfair to permit the Bethkes to serve Metropolitan under T.R. 4.14.\\nThe Bethkes failed to properly serve Po-teet with the summons and complaint. The Liberty Street address was not Poteet's \\\"dwelling house or usual place of abode\\\" for the purpose of service under T.R. 4.1(A)(8). Metropolitan was not Poteet's agent for service under TR. 4.7. The Bethkes did not request nor would they have been entitled to a court order allowing them to serve Metropolitan under TR. 4.14. As service upon Poteet was never properly effected, the trial court lacked personal jurisdiction of Poteet and therefore its default judgment was void. Where the judgment is void, the court must grant relief from it under T.R. 60(B)(6). The trial court therefore erred in granting relief only as to damages.\\nReversed and remanded with instructions to grant relief from the judgment in its entirety.\\nRATLIFF, C.J., and CONOVER, PJ., concur.\\n. It is unclear from the record how Poteet received this letter. Given that an apparent settlement was reached after the letter was received and that suit was not filed until approximately nine months later, we do not consider the fact that Poteet received the letter to be of importance in deciding the issue presented.\\n. This release pertained only to Monica's and her husband's claims for Monica's injuries. The Bethkes and Metropolitan apparently had agreed, however, on a $3,500.00 settlement as to the Bethkes' claim for injuries sustained by their daughter.\\n. It is unclear from the record whether the complaint Poteet's roommate received was forwarded from Liberty Street or was delivered by a sheriff after Loane turned over the documents she found at that address.\\n. This rule provides:\\nNo summons or the service thereof shall be set aside or be adjudged insufficient when either is reasonably calculated to inform the person to be served that an action has been instituted against him, the name of the court, and the time within which he is required to respond.\\n. Even though the Bethkes' claim for their daughter's injuries had not been formally set tled, a figure was apparently agreed upon. Po-teet therefore could have been reasonably assured that the entire matter had been taken care of and that no claim would be asserted against him.\"}"

ind/11027296.json

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+"{\"id\": \"11027296\", \"name\": \"Ronald JONES, Appellant (Claimant Below), v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, John C. Mowrer, David L. Adams, and Joe A. Harris, as Members of and Constituting the Review Board of the Indiana Employment Security Division, and U.S. Steel, Appellees (Employer Below)\", \"name_abbreviation\": \"Jones v. Review Board of the Indiana Employment Security Division\", \"decision_date\": \"1987-06-15\", \"docket_number\": \"No. 93A02-8611-EX-394\", \"first_page\": \"1322\", \"last_page\": \"1330\", \"citations\": \"508 N.E.2d 1322\", \"volume\": \"508\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T01:55:08.557367+00:00\", \"provenance\": \"CAP\", \"judges\": \"RATLIFFE, C.J., concurs.\", \"parties\": \"Ronald JONES, Appellant (Claimant Below), v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, John C. Mowrer, David L. Adams, and Joe A. Harris, as Members of and Constituting the Review Board of the Indiana Employment Security Division, and U.S. Steel, Appellees (Employer Below).\", \"head_matter\": \"Ronald JONES, Appellant (Claimant Below), v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, John C. Mowrer, David L. Adams, and Joe A. Harris, as Members of and Constituting the Review Board of the Indiana Employment Security Division, and U.S. Steel, Appellees (Employer Below).\\nNo. 93A02-8611-EX-394.\\nCourt of Appeals of Indiana, First District.\\nJune 15, 1987.\\nElizabeth Gail Tegarden, Legal Services Program of Greater Gary, Inc., Gary, for appellant.\\nLinley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellees.\", \"word_count\": \"5308\", \"char_count\": \"33177\", \"text\": \"ROBERTSON, Judge.\\nRonald Jones (Jones) seeks judicial review of the decision of the Review Board of the Indiana Employment Security Division (Review Board) denying his request for training under the Trade Act of 1974, 88 Stat.1978, 19 U.S.C. \\u00a7 2101 et seq. (Act).\\nWe reverse and remand.\\nJones, a former employee of U.S. Steel for twenty-five years, is a worker adversely affected by competition from foreign imports. He has been certified by the Secretary of Labor to be eligible for benefits and training provided by the Trade Adjustment Assistance Program. Jones was working toward an Associate Degree in Public Affairs with a concentration in criminal justice at Indiana University in May of 1985. He applied for training in the area of criminal justice. A deputy with the Indiana Employment Security Division determined that paralegal training would be a viable alternative within the program and excluded other cccupations within the criminal justice occupational area which were of interest to Jones, for \\\"lack of employment opportunities.\\\" Jones requested a hearing before an appeals referee, appeared pro se and presented evidence to rebut the deputy's determination. The appeals referee affirmed the denial of Jones's request for training, entering findings of fact and conclusions of law which the Review Board adopted. We remanded with instructions to the Review Board to enter findings and conclusions which would facilitate judicial review. 505 N.E.2d 881. The Review Board having entered specific findings of fact and conclusions of law in support of its decision, we must now consider whether Jones was denied training in accord with the Trade Act of 1974.\\nThe Review Board made the following entry:\\nFINDINGS OF FACT:\\n1. Claimant is a former employee of U.S. Steel having worked for said employer for 25 years (1-22-60 to 5-83-85). (Division Exhibit #1 TR pg 7).\\n2. A request for determination of entitlement to TRA (Trade Readjustment Act) benefits by Claimant was initiated on April 4, 1986, and processed as petition number 14767 (Division Exhibit # 1 TR pg 7 & 8).\\n8. A determination of eligibility was completed by the Gary Employment Security office on July 24, 1986, based on Claimant's request for training which would lead to an associate degree in public affairs with concentration in criminal justice. (Division Exhibit #8 TR pg 11.)\\n4. Claimant's requested program of training was determined to be excluded \\\"for lack of employment\\\" opportunities (Division Exhibit #8 TR pg 11) and a \\\"reasonable expectation of employment after training does not exist\\\". (Id.)\\n5. Claimant completed a Combined Report on Disputed Claim form on August 1, 1986 and filed the same with the Gary employment service office on the same date. (Division Exhibit #4 TR pg 12)\\n6. A notice of appeals referee hearing was issued to all parties on August 8, 1986. (Division Exhibit #5 TR pg 183 & 14); and the appeals hearing was conducted on August 19, 1986, (see referee docket Division Exhibit #6 TR pg 15) at Gary, Indiana. (TR pg 15)\\n7. The position of the Gary employment service office was presented by Mr. Freeman Franks, an Employment Service Specialist, TRA (TR pg 16) and stated that one of the requirements for determining eligibility for a TRA training program is that \\\"the person must have a reasonable expectancy of securing suit able employment in the occupation upon completion of training.\\\" (TR pg 19, lines 20-21); that the desired training pro gram was within the possibilities of Claimant's abilities as evidenced by the result of Claimant's aptitude test scores (TR pg 16, lines 14-24), and that the training requested was part of the minimum requirements in obtaining a position in that field sought (TR pg 19, line 38, TR pg 20, line 10).\\n8. Claimant noted that he had enrolled in a college and was doing B-grade level work (TR pg 28, lines 1-2). That he was over \\\"half-finished with this program\\\" (TR pg 28, line 10); that he had one more year to complete in order to receive or be awarded a criminal justice degree (TR pg 28, line 12-14). Claimant further stated \\\"there will be more jobs in security in the future and also criminal justice jobs outlook favorable today,\\\" (TR pg 24, lines 26-28). Claimant's Exhibit #1 and #2 (TR pg's 89-42) were offered to substantiate his contention that the potential for employment in the criminal justice field was favorable today; however, no correlation was shown between the course of training sought by Claimant at Indiana University in Gary, Indiana and the minimum requirements of jobs for guards, police officers, correction officers, juvenile correction officers, or any of the other positions detailed in related law enforcement areas in addition to others who work as judges, bailiffs, clerks, public defenders, prosecutors and investigators.\\n9. Claimant's pro-offered course list of classes at Indiana University, Gary, Indiana, was determined by the TRA Specialist to be an \\\"over view type\\\" of course, (TR pg 19, lines 1-7), which was not aimed or directed toward any specific or determinable class within the general classification of the criminal justice field; and a reasonable expectancy of employment at the completion of the training was not shown. Claimant's Exhibits 1 and 2 indicated an increase in employment possibilities within the broad spectrum of the \\\"Criminal Justice\\\" field, but showed not one bit of existing need for Claimant or others like him who may complete the course of study sought at Indiana University, Gary, Indiana.\\nThe general field of criminal justice as presented by Claimant as evidenced by Claimant's exhibits 1 and 2 (TR pg's 39-42) shows a wide range of positions (i.e. from city police to judges and prosecutors) that vary in requirements from a high school diploma to college and law degrees. Claimant did narrow his stated desire of job attainment to insurance investigator (TR pg 28, lines 22-283) when he said at the appeals hearing, \\\"I would like to do special investigator's work with insurance companies.\\\" However, there has been no showing by Claimant that such a position requires any skills or training program requirements beyond a high school diploma if that much, or that the course sought was programed for that position.\\n10. The TRA Specialist did conduct a survey, albeit not one of professional standards, of the local market regarding the general course of study for criminal justice associate degree sought by Claimant and found no need for persons so trained (TR pg 18, lines 7-81).\\nThe TRA Specialist, in his discussion with Claimant, explained that most areas of law enforcement and correctional officers did not require training beyond a high school diploma; and that the specific police training beyond that was conducted in-house or at the state facility at Plainfield, Indiana. (TR pg 20, lines 1-10).\\n11. Claimant's request for TRA funding could be interpreted as a request to study and take courses in a very general field of employment possibilities whereas the TRA program was designed to approve training of a worker eligible for trade adjustment assistance; [see 19 U.S.C. See. 2296(a) (1976) ] if suitable employment was available for the worker and if the worker received appropriate training. All of which is further conditioned upon the base premise that there is a reasonable expectation of employment following completion of such training.\\nA fair definition of \\\"reasonable\\\" would eliminate extreme possibilities when con sidering employment consideration for any applicant for TRA funding; and a reasonable definition of \\\"expectancy\\\" is anticipation of a probable occurrence such as an expectant number of years of life for a male or female based on statistical probabilities. Thus, in our particular order of TRA training, the program is aimed at providing training to eligible workers in programs with an anticipated probability that employment of the worker would follow upon completion of the training program.\\n12. Claimant's chosen field of study toward acquiring an associate degree in public affairs with a concentration in criminal justice has not been shown to meet the needs in a well-determined class of the work force with a reasonable expectation of employment following Claimant's completion of such training. Thus, in view of the above, the determination to deny claimant's request for training in his chosen field of study is a reasonable interpretation of the parameters of the program and is not too strict a view of the statutes intent. Further, the matter of whether the use of \\\"two years\\\" rather than \\\"104 weeks\\\" in speaking of the length of any such approved programs is not dispositive to the issues of the instant matter.\\nCONCLUSIONS OF LAW:\\n1. The act for Trade Adjustment Assistance is intended to approve training up to 104 weeks for eligible unemployed workers in areas of employment available to the worker in the event he receives appropriate training; and if there is a reasonable expectation of employment upon completion of this training.\\n2. Claimant, Ronald Jones, a former employee of U.S. Steel is one of a group of unemployed workers for which the TRA program is intended to help.\\n8. Claimant timely filed for assistance within the TRA program, and submitted himself and completed an aptitude test for purposes of attempting to determine a well defined area of the work foree for which Claimant might reasonably. expect employment after the completion of a readjustment training course programmed toward that defined field.\\n4. A review of Claimant's eligibility request and aptitude test results by the Employment Service Specialist, TRA, indicated Claimant would be eligible for TRA training in the general category of law aimed at the para-legal field of employment and there was a reasonable expectation of employment in that field at the conclusion of the course program by the Claimant and that said program was within the approved program list anticipated for completion within the time established by the Act.\\n5. Claimant's requested course of study toward acquiring an associate degree in public affairs with a concentration in criminal justice did not meet requirements of the TRA program which would reasonably lead to Claimant securing employment after completion of the course. 6. Claimant's requested course of study can best be described as sort of a \\\"liberal arts degree\\\" course of study that provides a fair foundation for any individual completing such program in a wide spectrum of employment possibilities but no reasonable expectation of employment in any one well defined area within the parameters of the intended assistance available in the TRA program benefits.\\n7. Thus the decision to deny Claimant his specific request for assistance to take courses at Indiana University at Gary, Indiana, toward acquiring an associate degree in public affairs with a concentration in criminal justice, was proper as there is no anticipated probability that such a program would provide suitable employment for Claimant upon completion of such a program.\\nL.\\nStandard of Review\\nWe review the Board's determination by applying the standard of review employed in the review of unemployment cases because eligibility determinations, when entrusted to State agencies administering state unemployment insurance pro grams, are to be reviewed \\\"in the same manner and to the same extent as determinations under the applicable state law and only in that manner and to that extent.\\\" 19 U.S.C. \\u00a7 2311(a); International Union, United Auto., Aerospace & Agricultural Implement Workers v. Brock (1986), 477 U.S. 274, 106 S.Ct. 2523, 2526, 91 L.Ed.2d 228; York v. Review Board (1981), Ind. App., 425 N.E.2d 707, 710.\\nIn determining whether the Board erred, our sole function is to determine whether the Review Board's findings of fact contain all specific facts relevant to the contested issue and whether the Board resolved those issues in conformity with law. Quillen v. Review Board (1984), Ind.App., 468 N.E.2d 238, 241. A contention that the Review Board's decision is contrary to law presents two questions: first, whether the evidence is sufficient to sustain the findings of fact; and, second, whether the findings of fact are sufficient to sustain the Review Board's decision. Citizens Gas & Coke Utility v. Review Board (1984), Ind.App., 471 N.E.2d 1175, 1176, trans. denied.\\nI.\\nThe Act\\nThe Trade Adjustment Assistance Program provides benefits and training to workers certified by the Secretary of Labor to have been adversely affected by competition from foreign imports. Under the program's scheme, the Secretary shall approve training for the certified worker, to the extent approved funds are available, if the Secretary determines that:\\n(A) there is no suitable employment (which may include technical and professional employment) available for the worker;\\n(B) the worker would benefit from appropriate training;\\n(C) there is a reasonable expectation of employment following completion of such training;\\n(D) training approved by the Secretary is available to the worker from either governmental agencies or private sources (which may include area vocational schools, as defined in \\u00a7 195(2) of the Vocational Education Act of 1968, and employers), and\\n(E) the worker is qualified to undertake and complete such training,. .\\n19 U.S.C. \\u00a7 2296(a). 'Upon approval, the worker is entitled to have payment of the costs of training paid by the Secretary on his behalf. Id.\\nFormerly, the Trade Act of 1974 authorized the Secretary of Labor to approve training of a worker eligible for trade adjustment assistance if the Secretary determined (1) that there was no suitable employment available for the worker, and (2) that suitable employment would be available for the worker if the worker received appropriate training. 19 U.S.C. \\u00a7 2296(a) (1976). However, the Act was substantial ly amended in 1981, requiring a more exhaustive and focused inquiry. Congress refined the simpler standard, that suitable employment be available after training, into an individualized determination involy-ing the five criteria recited above. See 19 U.S.C. \\u00a7 2296(a)(1)(B)-(E) (Supp. V, 1981). Moore v. Review Board (1983), Ind.App., 444 N.E.2d 910. The intent was to make assistance more accessible by easing the eligibility tests. See S.Rep. No. 1298, 93d Cong., 2d Sess. 131 (1974), reprinted in 1974 U.S.Code Cong. & Ad.News 7186, 7205; DeWhirst v. Review Board (1981), Ind.App., 419 N.E.2d 150, 151, trans. denied. The Act's most recent amendments were consider\\u00e9d with the expectation that with the changes, suitable and reasonably available training could be located or generated for most workers. See, S.Rep. No. 146, 99th Cong., 2d Session 349 (1986); 1986 U.S.Code Cong. & Ad.News 42, 311.\\nAgain, among the qualifying criteria is the requirement that there be a reasonable expectation of employment following the approved training. The Act no longer explicitly requires that the expected employment be \\\"suitable\\\" as defined previously under the Act's older formulation.\\nNeither the Trade Act of 1974 as amended nor the regulations issued by the Secretary of Labor affirmatively defines the language \\\"reasonable expectation of employment.\\\" The Act does provide that \\\"[fjor purposes of applying paragraph (1)(C), a reasonable expectation of employment does not require that employment opportunities for a worker be available, or offered, immediately upon the completion of training....\\\" 19 U.S.C. \\u00a7 2296(a)(2) (Supp. 1986) (effective April 7, 1986). The Secretary of Labor has instructed state agencies that the criterion concerning reasonable expectation of employment does not mean employment immediately upon completion of training. Dept. of Labor, General Administration Letter No. 7-86, 51 FR. 21027, 21028, (June 10, 1986).\\nAccording to the Secretary of Labor, if suitable employment is not available to an individual, it is the responsibility of the state agency to explore, identify, develop and secure training opportunities. 20 C.F.R. \\u00a7 685.28(a), 48 FR. 9444, 9454 (proposed March 4, 1983.) The state agency is responsible for the selection and approval of training which offers a reasonable expectation of employment following such training, 20 CRF. \\u00a7 635.26(d), and must document the standards and procedures used to select occupations and training institutions. Id.\\nWith respect to the selection of occupational areas in which training may be provided, the state agency is directed by the Secretary of Labor to \\\"approve training in occupations for which an identifiable demand exists either in the local labor market or in other labor markets for which relocation planning has been implemented.\\\" 20 C.F.R. \\u00a7 635.23(d)(1). The state agency must exclude certain occupations, among them, those for which a\\n(i) [IJack of employment opportunities as substantiated by job orders and other pertinent labor market data [exists]; or\\n(ii) [olecupations which provide no reasonable expectation of permanent employment; or\\n(iii) [sJelfemployment and occupations for which remuneration is wholly or primarily in the form of a commission.\\n20 C.F.R. \\u00a7 623.23(d)(8).\\nTo briefly summarize the Act's requirements as implemented by the Department of Labor and as relevant to the instant case, the state agency is to approve training which offers, from an objective perspective, a reasonable expectation of employment upon completion. Training is to be approved in occupations where a demand can be identified in the labor market. An occupation must be excluded from consideration for training, again upon an objective basis (job orders and pertinent labor market data), when the occupation lacks employment opportunities.\\nIIL.\\nDecision\\nAdopting the Review Board's definition of an expectation of employment and applying the requirements of the Act, we believe the central question to be addressed by the Review Board was whether, objectively, the claimant could anticipate probable employment following training in the area of criminal justice. We agree with Jones that the Review Board's findings and conclusions indicate that the Review Board did not give proper consideration to the requirements of the Act and the regulatory guidelines established to implement it in resolving this question. Moreover, we agree that the Review Board has relieved the state agency of the responsibility of documenting standards and procedures used to evaluate occupations and training institutions.\\nAs we read the entry, the Review Board found that while the outlook for employment in criminal justice was favorable, finding 8, and evidence in the record \\\"indicated an increase in employment possibilities within the broad\\\" criminal justice field, finding 9, Jones's choice of course work was too general in nature to qualify him for training assistance; it was not directed toward a specific occupation. Furthermore, Jones had not shown \\\"one bit of existing need for Claimant or others like him who may complete the course of study sought\\\" by Jones, finding 9; neither had Jones shown an \\\"anticipated probability that such a program would provide suit able employment . upon completion of such a program.\\\" Conclusion 7, emphasis added. As far as an objective basis for excluding various criminal justice occupations, the Review Board made only one finding: \\\"[the TRA Specialist did conduct a survey, albeit not one of professional standards, of the local market regarding the general course of study for criminal justice associate degree sought by claimant and found no need for persons so trained (TR pg 18, lines 7-31)\\\" Finding 10.\\nAs an initial matter we note that the record contains no evidence that the state agency considered any occupation within the criminal justice field other than paralegal or legal assistant, occupations in which Jones expressed no interest. The record indicates that the state agency surveyed five local attorneys for purposes of determining whether law offices would hire an individual studying criminal justice through the Indiana University Public and Environmental Affairs program. The agency concluded from this sampling that law offices would have more use for a paralegal. This is the only evidence in the record which has any tendency to show a lack of opportunity for individuals with an Associate Degree in Criminal Justice. Clearly, it is not a reliable, statistical basis under the facts of this case for concluding that there is no demand whatsoever in any of the occupations in which Jones expressed interest, particularly in light of the evidence presented by Jones, dated December 1984, predicting an increase in opportunities in the criminal justice field.\\nWe believe it was incumbent upon the state agency to make greater efforts to obtain the information necessary for mean ingful review of the petition and to develop a methodology which will elicit complete and accurate data. This responsibility cannot be shifted to the claimant by finding that there was no showing of \\\"existing need\\\" for persons with the training sought by Jones. Jones appeared pro se. When a claimant appears without representation of counsel at an unemployment compensation hearing in Indiana, the referee is required to insure a complete presentation of the case. 640 I.A.C. 1-11-3; Lucas v. Review Board (1981), Ind.App., 416 N.E.2d 906, 907 n. 5; DeWhirst v. Review Board (1981), Ind.App., 419 N.E.2d 150, 151 n. 4. As the Employment Security Division has been given the role of actively pressing the parties to produce all relevant proofs at their command, and, when necessary, to independently take steps to get the facts, the lack of evidence cannot be used against the claimant. Lucas, supra. This is particularly true in this case where the Secretary of Labor has specified that it is the responsibility of the state agency to explore and identify training opportunities, and to select, with the use of documented standards and procedures, the occupations which offer a reasonable expectation of employment.\\nWith respect to those of the Board's findings which suggest that Jones must entertain a reasonable expectation of obtaining \\\"suitable\\\" employment, we again point out that the Act no longer explicitly requires a determination that suitable employment be available. However, since it is apparent that training will only be approved if \\\"suitable\\\" employment is not available for the worker, 19 U.S.C. \\u00a7 2296(a)(1)(A), we believe it would be reasonable for the Board to consider whether the training requested can be expected to ultimately result in \\\"work of a substantially equal or higher skill level than the worker's past adversely affected employment, and wages for such work at not less than 80 percent of the worker's average weekly wage\\\", 19 U.S.C. \\u00a7 2296(f) (1986), as \\\"suitable\\\" employment is defined by the Act. The Review Board made no findings with respect to the comparative skill and wages levels; moreover, the record indicates that no evidence was taken directly on this point. In the absence of evidence of this nature, the Review Board could not have given proper consideration to the question of \\\"suitable\\\" employment; consequently, we must conclude that the Review Board's findings which incorporate this element are not supported by substantial evidence, and are therefore contrary to law.\\nFinally, we note that Congress anticipated that for some occupations and types of training, workers may need to commute or relocate. It specifically provided for subsistence payments, job search allowances and relocation allowances to assist the adversely affected worker to return to work in equivalent or better employment as quickly as possible. See eg., 19 U.S.C. \\u00a7 2296(b); \\u00a7 2297, \\u00a7 2298. We conclude from the provision of these benefits that a worker may entertain a reasonable expectation of employment in labor markets other than the local market. Hence, in determining whether an identifiable demand exists in a particular occupation, the state agency should factually determine whether relocation planning might be implemented.\\nIn light of the absence of a factual basis in the record to support the Review Board's determination that no reasonable expectation of employment following completion of the training requested exists for Jones, we must conclude that the Review Board's decision is contrary to law. We reverse and remand to the Review Board for reconsideration and factual determination in accord with the directives of the Secretary of Labor and the provisions of the Act. To the extent that the Review Board's definition of a reasonable expectation of employment incorporates a requirement of expecting \\\"suitable\\\" employment, it will be necessary for the Review Board to factually develop the record on that question as well.\\nReversed and remanded.\\nRATLIFFE, C.J., concurs.\\nMILLER, J., concurs in part and dissents in part with separate opinion.\\n. Created by the Trade Expansion Act of 1962, Pub.L. No. 87-794. The program was substantially expanded and modified by the Trade Act of 1974, Pub.L. No. 93-618, 88 Stat.1978.\\n. Examining the Board's findings of fact and conclusions of law, we observe that under the heading \\\"Conclusions of Law\\\", some of the preliminary comments are in essence a continuation of the Board's factual findings rather than legal conclusions. Similarly, we note that the Board has characterized legal conclusions as findings of fact. Recognizing that as a general rule we must accord the Board's findings of fact substantial deference, we will not exalt form over substance. See, Public Service Co. of Indiana, Inc. v. Review Board (1983), Ind.App., 451 N.E.2d 371, 374. Accordingly, where we determine that the Board has resolved questions of law, we will not accord that degree of deference granted a question of fact. The question whether the Board conformed to the statutory standards and legal principles involved in producing its order, i.e. whether the Board considered some factor or element which it is apparent improperly influenced the result, is purely a legal question and one properly for the courts to determine in any judicial review. Public Service Commission of Indiana v. City of Indianapolis (1956), 235 Ind. 70, 82-83, 131 N.E.2d 308, 312-313.\\n. Regulations implementing the Trade Act of 1974 have been codified at 29 C.F.R. \\u00a7 91 et seq. The Secretary of Labor proposed revised regulations following the program's revision by the Omnibus Reconciliation Act of 1981. The revised regulations, published at 48 FR. 9444 (March 4, 1983) were never finally promulgated. Similarly, subsequent to the Act's amendment in 1986 by the Consolidated Omnibus Reconciliation Act of 1984, Pub.L. 99-272, the Secretary issued General Administration Letter No. 7-86, 51 F.R. 21027 (June 10, 1986), providing operating instructions to state agencies for implementing and administering the amendments to the program. Formal rule-making procedures have not been instigated for these instructions either. The parties agree that the proposed regulations do not have the force and effect of law given legislative rules issued by an agency pursuant to statutory authority to create new law, rights or duties. See, Batteron v. Francis (1977), 432 U.S. 416, 425 and n. 9, 97 S.Ct. 2399, 2405 and n. 9, 53 LEd.2d 448. However, it is well settled that an agency charged with a duty to enforce or administer .a statute has inherent authority to issue interpretative rules informing the public of the procedures and standards it intends to apply in exercising its discretion. American Medical Association v. Heckler (S.D.Ind.1985), 606 F.Supp. 1422, 1440; Production Tool Co. v. Employment & Training Administration (7th Cir.1982), 688 F.2d 1161, 1166. Even interpretative rules are binding on the regulated parties in the sense that they set, for the time, the legal minima of behavioral standards, and inform the parties that actions not in conformity with an agency's interpretation of a statute may be viewed by the agency as a violation of the statute. AMA v. Heckler, supra; Alcaraz v. Block (9th Cir.1984), 746 F.2d 593, 614. The legislative /interpretative rule distinction is relevant to the extent it guides courts in determining the standard of judicial review. Alcaraz id. In Indiana, an agency's interpretations of the statute are to be afforded great weight and are not to be disturbed so long as they have a rational basis. Hearing & Speech Clinic v. Ind. Dept. of Welfare (1984), Ind.App., 466 N.E.2d 462, 464-465; Ind. Dept. of Pub. Welfare v. Crescent Manor (1981), Ind.App., 416 N.E.2d 470, trans. denied. Neither party has argued that these regulations, as written are irrational.\\n. Generally, administrative decisions must be based upon ascertainable standards to insure that agency action will be orderly and consistent. Standards should be stated with sufficient precision to provide those having contact with the agency fair warning of the criteria by which they will be judged. Midwest Street Erection Co. v. Commissioner of Labor (1985), Ind.App., 482 N.E.2d 1369, 1371, trans. denied.\"}"

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+"{\"id\": \"11060901\", \"name\": \"Mary C. KRANDA, Appellant (Plaintiff Below), v. HOUSER-NORBORG MEDICAL CORPORATION and Keim T. Houser, M.D., Appellees (Defendants Below)\", \"name_abbreviation\": \"Kranda v. Houser-Norborg Medical Corp.\", \"decision_date\": \"1981-05-05\", \"docket_number\": \"No. 3-480A107\", \"first_page\": \"1024\", \"last_page\": \"1044\", \"citations\": \"419 N.E.2d 1024\", \"volume\": \"419\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:09:31.266759+00:00\", \"provenance\": \"CAP\", \"judges\": \"HOFFMAN, P. J. (sitting by designation), and MILLER, J., concur.\", \"parties\": \"Mary C. KRANDA, Appellant (Plaintiff Below), v. HOUSER-NORBORG MEDICAL CORPORATION and Keim T. Houser, M.D., Appellees (Defendants Below).\", \"head_matter\": \"Mary C. KRANDA, Appellant (Plaintiff Below), v. HOUSER-NORBORG MEDICAL CORPORATION and Keim T. Houser, M.D., Appellees (Defendants Below).\\nNo. 3-480A107.\\nCourt of Appeals of Indiana, Fourth District.\\nMay 5, 1981.\\nDaniel J. Harrigan, Bayliff, Harrigan, Cord & Maugans, P. C., Kokomo, Edward A. Zych, Matthews-Petsche & Associates, South Bend, for appellant.\\nEdward A. Chapleau, Chapleau, Mclner-ny, Minczeski & Farabaugh, South Bend, for appellees.\", \"word_count\": \"9306\", \"char_count\": \"56971\", \"text\": \"YOUNG, Presiding Judge.\\nMary C. Kranda, appellant-plaintiff, appeals from a negative judgment in a medical malpractice action against Houser-Nor-borg Medical Corporation and Dr. Keim Houser, M. D. The trial court granted judgment on the evidence as to the issue of informed consent and the issue of the defendant corporation's liability. The jury returned a verdict for Dr. Houser and judgment was entered accordingly.\\nOn appeal, Kranda raises a number of issues for our consideration. For purposes of review, we have consolidated similar questions.\\n(1) Whether the trial court erred in permitting members of the review panel to testify and in admitting each individual panel members' written opinion into evidence.\\n(2) Whether the opinion of the Medical Review Panel should be excluded because it was rendered pursuant to the Indiana Medical Malpractice Act which Kranda contends is unconstitutional.\\n(3) Whether the trial court erred in refusing to admit into evidence the deposition of Dr. Roseman who testified at trial and the minutes of the Medical Review Panel meeting.\\n(4) Whether the trial court erred in withdrawing the issue of informed consent from the jury's consideration.\\n(5) Whether the trial court erred in the imposition of a \\\"one pass rule.\\\"\\n(6) Whether the trial court erred in giving certain instructions and in refusing certain requested instructions.\\n(7) Whether the trial court erred in granting judgment on the evidence in favor of defendant Houser-Norborg Medical Corporation.\\nWe affirm.\\nIn October 1975 Kranda consulted Dr. Keim Houser, an obstetrician-gynecologist employed by Norborg-Houser Medical Corporation, concerning problems she was having with vaginal warts. At this time, Dr. Houser also noted a Bartholin cyst deep within the tissue on the left side of her vagina. From Kranda's medical history, Dr. Houser knew that a similar cyst had been surgically removed from the same area in 1972 and that Kranda suffered from Crohn's disease which had resulted in a number of hospitalizations.\\nAfter several attempts to treat the warts with medication, Dr. Houser recommended and scheduled the surgical removal of them. Before this surgery, Kranda developed problems with the Bartholin cyst. She consulted Dr. Norborg about this problem, who prescribed antibiotics and hot baths. When this treatment caused the cyst to fill with pus and open, Dr. Norborg stated that he would schedule removal of the cyst on the same date as her other surgery.\\nOn January 28, 1976 Dr. Houser did a preoperative examination and discussed the possibility of removing the cyst during the surgery for the warts. At this time he did not discuss her Crohn's disease or the risks associated with it in surgery. Dr. Devet-sky, Kranda's treating physician for her Crohn's disease, discussed with Dr. Houser the use of steroids and stated that he would order the necessary steroids. Neither doctor discussed the effect of steroids on the healing process with Kranda.\\nSurgery was performed on February 6, 1976 by Dr. Houser. During the surgery, he removed the remaining part of the Bar-tholin gland and the cyst. In this process, Dr. Houser brought the cyst up and did a rectal exam to determine the location of the scar tissue from the prior surgery. He peeled the tissue away from the cyst. Dr. Houser testified that he could not see where the rectum was because of tissue fibrosis and scarring. As he was removing the cyst, he recognized a small rent (tear) in the. rectal mucosa. Dr. Houser repaired this rectal laceration by sutures placed close to the rectum. That evening Dr. Houser told Kranda of the rectal entry and the repair and stated that he did not think there would be any problems.\\nOn February 10, 1976 Kranda was released. That evening she felt gas escaping from the incision. Fecal matter escaped from a hole not present prior to surgery. The following day she saw Dr. Houser who could find no fecal matter escaping from a hole. The deep rectal sutures were still intact. On the 13th of February she again went to see Dr. Houser for the same problem. Because Dr. Houser was not in the office his father, also an obstetrician-gynecologist, saw her and upon examination recognized a fistula. He recommended heat treatment until he could consult with his son, Dr. Keim Houser. On the same day, Kranda saw her internist. In view of her underlying illness, he immediately recommended going to Chicago for repair surgery. She entered Rush-Presbyterian-St. Lukes Hospital in Chicago the next day. At St. Luke's, Dr. Roseman, a surgeon, performed a temporary colostomy which diverted the fecal matter from the rectum to promote the healing of the fistula. Following this operation, a bowel obstruction developed as a result of her Crohn's disease and part of the bowel had to be removed. She underwent another operation for an ileostomy. In January 1977 Dr. Roseman eliminated the ileostomy and made the colostomy partial. Kranda then improved; however, several days later she developed an abscess which was lanced several times before she returned to St. Luke's Hospital for a complete colostomy. Other than activation of her Crohn's disease, Kranda has had no further complications. She currently has a complete colostomy.\\nAppellant Kranda first claims error in the trial court allowing two panel members to testify regarding their decisions and in admitting each panel member's written opinion because each opinion was based upon casual conversations with other physicians. Kranda refers to Indiana Code 16-9.5-9-4 to support her contention that the only information to be considered under this act is evidence submitted in writing by the parties. While Section 4 might leave that impression if read alone, Section 6 of the same act permits the panel to consult with medical authorities. Kranda argues, however, that this language means only that the panel may consult treatises, journals, medical textbooks and similar medical authorities. Therefore, she contends the panel member's opinions were not formulated in accordance with the statute and members should not be able to testify or have their opinions admitted. We disagree. In construing a statute words used are to be given their usual and ordinary meaning; a court should not so construe a statute as to willfully and unnecessarily narrow its provisions. Evansville-Vanderburgh School Corporation v. Roberts, (1979) Ind.App., 395 N.E.2d 291. To assign Kranda's meaning to the statutory term \\\"medical authorities\\\" would unnecessarily narrow this provision. The ordinary meaning given to \\\"authorities\\\" includes both written materials and individuals qualified in the field. See e. g. Webster's Third New International Dictionary 146 (1976). In addition, the term appears to refer to individuals when read in the context of the section which states that \\\"[t]he panel may consult with medical au thorities.\\\" IC 16.9.5-9-6. Ordinarily one consults with a person rather than a book or written materials.\\nKranda further claims that these consultations are impermissible because she had no opportunity to cross-examine these consulted physicians, had no knowledge of these conversations and could not offer rebuttal evidence. However, Section 5 of the same act provides either party with the opportunity to convene the panel and question members concerning any matters relevant to the issues to be decided by the panel. Thus, she had access to this information in her opportunity to question members as to whether and what consultations were made. She then had the opportunity to offer rebuttal evidence. Her claim is therefore without merit and the admission of testimony and the opinions were not error in this respect.\\nIn addition, Kranda contends that these opinions are inadmissible because panel members were not advised of the law of evidence or legal standards applicable to a medical malpractice case. The record does not support this contention. Dr. Cook, one member of the panel, testified that the panel had a copy of the malpractice statute which the chairman went through in detail in the panel's introductory preparation. Furthermore, the statute contemplates that the panel will function in an informal and reasonable manner. Johnson v. St. Vincent's Hospital, Inc., (1980) Ind., 404 N.E.2d 585. The panel does not conduct a hearing or trial and does not render a decision or judgment. Rather than adjudicate the merits of the claim, its purpose is to conduct a rational inquiry into the extent and source of the patient's injuries for the purpose of forming its expert opinion. Id. at 596. The chairman acts in an advisory capacity only, supervising the panel to assure that each party has a reasonable opportunity to present its evidence and authorities. See, e. g. Johnson, supra. Nothing in the record suggests that the chairman did not fulfill his duty. Furthermore, we find nothing in the statute requiring the panel to comply with the formal rules of evidence in conducting its inquiry. Therefore we cannot find the opinions inadmissible on this basis.\\nKranda also argues that each individual panel member's testimony and written opinion are inadmissible because they are hearsay and are contrary to IC 16-9.5\\u2014 9-7 and IC 16-9.5-9-9 which she con tends provides only for a collegial opinion. We reject the hearsay argument. First, an expert witness can draw upon all sources of information coming to his knowledge or through the results of his investigation, in order to enable him to formulate an opinion. Trinity Universal Insurance Co. v. Town of Speedway, (1965) 137 Ind.App. 510, 210 N.E.2d 95. The fact that the expert consulted with other individuals does not render his testimony hearsay and therefore inadmissible. Id. In Rosenbalm v. Winski, (1975) 165 Ind.App. 378, 332 N.E.2d 249, this court restated the rule in Trinity. The hearsay \\\"considered\\\" must be of a type normally found reliable and customarily relied upon by the expert in the practice of his profession. Rosenbalm, supra. Applying the foregoing to the present case, any hearsay considered by panel members consisted of information from other doctors \\u2014 a source of information normally found reliable and customarily relied upon by experts in the medical profession. In addition Sections 4 and 6 of the Medical Malpractice Act, referred to above, permit consultations with other doctors and also requires panel members to testify if they are called. To accept Kranda's argument would be contrary to the case law of Indiana, as well as this statutory scheme. Thus, the testimony was not inadmissible because the opinions may have been based, in part, on hearsay.\\nKranda finally argues that these opinions are inadmissible because they were not in the form of a collegial opinion which she insists the statute requires. In the present case each panel member submitted his own opinion as part of the panel opinion. We cannot agree that the trial court erred in admitting these separate opinions as part of the whole opinion. Indiana Code 16-9.5-9-9 permits any report of the expert opinion reached by the panel to be admitted and states that such is not conclusive. Further, Kranda's contention would prevent a panel member from dissenting. The statute does not prohibit individual panel member-opinions nor does it indicate that the Legislature contemplated a unanimous concensus in the opinion. In fact Section 10 of the Act contemplates the possibility of not having a majority opinion. Just as this court may issue its opinion in the form of three concurring opinions, so also may the medical review panel issue its opinion in such a manner. Even assuming error in this respect, we could not determine if such was harmful error because Kranda has not provided us with these opinions to review in making this determination. For these reasons, we reject this contention.\\nKranda next argues that the Indiana Medical Malpractice Act, IC 16-9.5-1-1 et seq. is unconstitutional for the following reasons:\\n(a) The Act has a \\\"substantially chilling effect\\\" on the exercise of constitutionally protected rights including the right to redress for injuries, access to the courts, and trial by jury because it requires submission of the claim to the review panel.\\n(b) The Act is vague to the point of being capable of an interpretation violative of constitutionally protected rights by requiring a procedure to be followed that does not provide a method of resolving legal, procedural and evidentiary disputes.\\n(c) The Act violates Article 1 Section 12 of the Indiana Constitution which states in pertinent part: \\\"Justice shall be administered . speedily, and without delay.\\\" by creating a quasi-judicial procedure which results in extended delay before a case can be filed in a Court of Law and which does not provide any method of resolving the controversy.\\n(d) The Act violates equal protection of laws under the Fourteenth Amendment of the United States Constitution and Article 1, Section 23 of the Indiana Constitution for it creates an artificial, arbitrary, and unreasonable legislative classification between persons subjected to its provisions.\\n(e) The Act violates Article 7, Section 1 of the Indiana Constitution in that it constitutes an improper delegation of Judicial Power to the Indiana Department of Insurance.\\n(f) The monetary limitation upon a plaintiff as provided by the Act is an unwarranted violation of the plaintiff's constitutional right to trial by jury in that a jury is not permitted to assess reasonable compensation on an individual basis and the limitation on damages creates an impermissible irrebuttable presumption by depriving an injured person of the right to prove that his individual claim is not excessive, even though it exceeds the Statutory Limitation.\\n(g) The Act violates the due process rights found in the United States and Indiana Constitutions by preventing a patient from recovering reasonable damages commensurate with the injury incurred.\\n(h) The Act violates the right to trial by Jury as guaranteed by the Seventh Amendment of the United States Constitution and Article 1, Section 20 of the Indiana Constitution by increasing the burden of proof imposed upon plaintiffs in overcoming the Medical Review Panel opinion.\\n(i) The Act violates the plaintiff's constitutional right to a trial by an impartial Jury, in that the Medical Review Panel is composed of fellow-doctors and colleagues of the defendant doctor; that these fellow-doctors and colleagues already benefit by the very existence of the Medical Malpractice Act; and that these fellow-doctors and colleagues also benefit directly and indirectly by a finding of no Malpractice in this case since this will serve to keep down the insurance premiums paid by the members of the Medical Review Panel as well as keep down the amount of any future judgment in any possible unrelated Malpractice actions against the Members of this Medical Review Panel.\\nOur Supreme Court in Johnson, supra has upheld the constitutionality of this Act. In Kranda's reply brief, she concedes that Johnson, supra is dispositive of many of these constitutional issues. However, she claims that several issues were not directly discussed in Johnson. Although we disagree, we will briefly address these issues separately.\\nKranda first claims that the court did not address the Act's \\\"chilling effect\\\" on constitutionally protected rights. Kranda urges us to find that the Act has a \\\"substantial chilling effect\\\" on her right to redress for injuries, access to courts and trial by jury because it requires submission of the claim to the review panel. As was noted in Whitaker v. St. Joseph's Hospital, (1981) Ind.App., 415 N.E.2d 737, this argument was indeed specifically rejected when our Supreme Court in Johnson, supra at 591-596, 604 upheld the constitutionality of the Act on this point.\\nKranda next contends that the Act creates a procedure prohibitively costly in time and money without corresponding benefits. The court in Johnson discussed the expense and delay when it said:\\nDelay in the commencement of a trial and the expense of investigating and marshalling evidence are part and parcel of the preparation of any piece of civil litigation. Delay routinely occurs between the decision to prosecute a claim and the trial. Expenses for investigation and preparation attend the pre-trial prep aration of all claims. The panel submission requirement generates evidence admissible at a future trial of the claim. The delay in the trial occasioned by this process and the cost attendant to it are in major part like those to be expected in any case. The participation by the parties in the panel processes will satisfy to a great extent their preparation needs. Such satisfaction will tend to reduce total aggregate time for trial preparation. Thus, the delay complained of will be offset to an appreciable extent. The cost to the party in whose favor the opinion is rendered would be in the range that such party would expect to pay to develop such evidence individually. And the cost to the party against whom the opinion is rendered has been subjected to a cost by the process which would be much the same as he expects to pay to discover his opponent's evidence.\\nJohnson, supra at 592. Our Supreme Court has, therefore, upheld the procedure as not being unduly costly in time or money.\\nKranda also claims that the Act creates a quasi-judicial procedure without an administrative remedy. She relied upon a portion of the Indiana Constitution, Article 1, Section 12 which states \\\"Justice shall be administered . speedily, and without delay.\\\" This procedure was thoroughly analyzed in Johnson, supra at 591-596; Whitaker, supra at 746. Further, the right to trial is fully accorded to the plaintiff after the delay occasioned by the panel submission requirement; her remedy is provided through this adjudicative process in court. Thus, this argument is rejected.\\nHer contention that the Act gives judicial power to the Department of Insurance must also fail. She claims that the Act allows the Department to determine the jurisdiction of the court and that it ousts the civil courts of jurisdiction until the \\\"medical review panel\\\" hands down its opinion which has no force of law. Despite assertions to the contrary the legislature has not delegated judicial power to the Indiana Department of Insurance through this Act. Whitaker, supra, at 746. As this court stated:\\nSuch power clearly resides with the courts. Neither the Indiana Department of Insurance nor the medical review panel makes an adjudication on the merits of a claim. Neither conducts a hearing or a trial and neither renders a decision or a judgment on the claims before it. The Department of Insurance is merely to advise those who inquire as to the status of the health care providers. The medical review panel is to conduct a rational inquiry into the source and extent of the patient's injury for the purpose of forming its expert medical opinion. Johnson, supra at 596. These are not judicial functions.\\nId. The procedure requiring filing of a proposed complaint with the Commission and submission of the claim to the panel before the filing of suit has been upheld in Johnson, supra and requires no further discussion.\\nFinally Kranda claims that the Act violates the separation of powers doctrine. Because the Act permits the panel opinion to be admitted into evidence, she contends that the Legislature has usurped the courts' judicial authority to rule on the admissibility of evidence. This argument was also discussed and rejected in Johnson, supra at 597, 598. Additionally, she makes an argument based on hearsay which we have rejected earlier in this opinion. Therefore, this claim of a violation of the separation of powers doctrine fails as did her other constitutional attacks.\\nWe now turn to Kranda's assignment of error relating to the trial court's refusal to admit certain items into evidence. Kranda first claims the court erred when it refused to permit the entire deposition of Dr. Roseman to be read into evidence. Dr. Roseman testified for Kranda at trial. Notwithstanding his trial testimony, Kranda argues that Roseman's deposition should have been read to the jury because the two panel members who testified considered it in formulating their opinion. The authorities cited by Kranda do not support her contention nor does the Medical Malpractice Act require or even suggest the admission of materials submitted to the panel. Therefore we must consider whether the exclusion was an abuse of discretion. A trial judge has considerable latitude in the admission or rejection of evidence. Lovko v. Lovko, (1978) Ind.App., 384 N.E.2d 166. Because the same facts and opinion were covered in the doctor's trial testimony, the jury already had the information before it which the panel had considered. The trial court's exclusion of the deposition was within its discretion inasmuch as the contents of it were put into evidence through the doctor's trial testimony. See e. g. Auto-Teria, Inc. v. Ahern, (1976) 170 Ind.App. 84, 352 N.E.2d 774; Killion v. Updike, (1974) 161 Ind.App. 577, 316 N.E.2d 837. Therefore the trial court committed no error in excluding the deposition.\\nWe also find no abuse of discretion in the court refusing to admit the panel minutes. The Act does not require their admission. In addition, Kranda first offered them for evidence on recross of a defense witness. As the court correctly noted, the minutes were beyond the scope of the redirect of the witness. The second time the minutes were offered into evidence, defense counsel objected, because they were not listed in the pretrial order. While the pretrial order can be amended, see e. g. Colonial Mortgage Co. of Indiana, Inc. v. Windmiller, (1978) Ind.App., 376 N.E.2d 529, Kranda did not move to have it amended. The court committed no error in sustaining the objection and refusing to admit the minutes.\\nKranda further argues trial court error in granting a judgment on the evidence in favor of defendants Houser and the medical corporation as to the issue of informed consent. In considering a motion for judgment on the evidence, the trial court must look only to the evidence and the reasonable inferences drawn therefrom most favorable to the nonmoving party. To sustain a TR. 50(A) judgment for a defendant, the evidence must be susceptible of but one inference in favor of the moving party and without conflict. Ind.Rules of Procedure, Trial Rule 50(A); Stockberger v. Meridian Mut. Ins. Co., (1979) Ind.App., 395 N.E.2d 1272.\\nIf reasonable persons might differ or if there is any, evidence or legitimate inference to support the plaintiff's allegations, a judgment on the evidence is improper. Id.; Huff v. Travelers Indemnity Company, (1977) 266 Ind. 414, 363 N.E.2d 985. Such a motion \\\"may properly be granted only if there is no substantial evidence or reasonable inference derived therefrom supporting an essential element of the claim: a complete failure of proof.\\\" Ortho Pharmaceutical Corp. v. Chapman, (1979) Ind.App., 388 N.E.2d 541, 544.\\nKranda contends she gave no informed consent because Dr. Houser and the medical corporation failed to warn of the risk of untoward consequences. With the above standard for judgment on the evidence in mind, we must examine Kranda's evidence, if any, relating to necessary disclosures. An action prefaced on the doctrine of informed consent is one based on negligence; therefore, the plaintiff must show (1) a duty owed to her, and (2) a breach of that duty (by falling below the set standard of care) (3) which proximately caused a compensable injury. See e. g. Revord v. Russell, (1980) Ind.App., 401 N.E.2d 763, at 766. Indiana recognizes the duty of a physician to make a reasonable disclosure of material facts relevant to the decision which the patient is requested to make. Id. (citing Joy v. Chau, (1978), Ind.App., 377 N.E.2d 670, 676-77).\\nThe general rule is that expert medical testimony is required to establish the content of such \\\"reasonable disclosure\\\" unless the situation is clearly within the realm of laymen's comprehension as where the disclosure is so obvious that laymen could recognize the necessity of such disclosure. Revord, supra (citing Annot., 52 A.L.R.3rd 1084 (1973)). Experts are ordinarily indispensable to identify and elucidate for the fact finder the risks of therapy and the consequences of leaving existing maladies untreated. Revord, supra at 766 (quoting Canterbury v. Spence, (C.A.D.C.1972) 464 F.2d 772, 786). Because Bartholin cyst surgery is not a matter within the common knowledge or experience of laymen, medical testimony was required to establish a prima facie case under informed consent. Kranda presented two medical witnesses, neither of whom were gynecologists or physicians devoting special attention to Bartholin cyst treatment. Even assuming each to have been competent to testify as to a \\\"reasonable disclosure\\\" for a gynecologist, neither testified that a \\\"reasonable disclosure\\\" would include the risk of injury to the rectum. In fact all medical testimony indicated that such an injury would not be expected. All expert witnesses, including defendant Houser, testified that they had never seen the rectum entered in this type of surgery. Therefore, Kranda failed to show that even if Houser had made a full disclosure, the risk of injury actually suffered (entering the rectum and resulting fistula) should have been among the risks disclosed.\\nKranda did testify that had she known this risk (of cutting the rectum), she would not have submitted to the treatment. However, there is no evidence that revelation of any other risk would have changed her consent. Thus, the only evidence that she would have foregone the treatment was based upon a risk which defendant had no duty to disclose. Because proximate cause is a necessary element in any tort case, there must be a causal relationship between the physician's failure to inform and the injury to plaintiff. Revord, supra. There is no proximate cause if the plaintiff would have submitted to the treatment even if full disclosure had been made. Revord, supra (citing Natanson v. Kline, (1960) 186 Kan. 393, 350 P.2d 1093, modified, 187 Kan. 186, 354 P.2d 670). Because there is no evidence that any risk, other than cutting the rectum, would have negated her consent and because that risk was not established as one which the doctor had a duty to disclose, Kranda has failed to establish that she would not have consented if a full disclosure had been given. Therefore, the judgment on the evidence was proper because there is no evidence to support the element of proximate cause.\\nKranda next contends that Local Rule 7(C) of the Rules of the St. Joseph Superior Court regarding jury selection is an abuse of discretion. The right of a civil litigant to peremptory challenges is granted by Ind.Code 34-1-20-7. However, a trial court, in the exercise of its discretion, may to some extent direct the manner of conducting the impanelling of juries and the manner of exercising the right of peremptory challenges. Cochran v. State, (1978) 269 Ind. 157, 378 N.E.2d 868. Reasonable limitations on such right may be fixed so long as the right of challenge is not taken away, and reasonable opportunity is given to challenge. Lund v. State, (1976) 264 Ind. 428, 345 N.E.2d 826; Veach v. McDowell, (1962) 133 Ind.App. 628, 184 N.E.2d 149. Local rule 7(C) permits counsel for each party to examine the panel once \\\"without passing\\\" . Each counsel reserves peremptory challenges until all counsel have examined the panel once. When the party is required to exercise his challenges, he has heard the examination by his opponent and has had an opportunity to conduct his own examination. As was noted in Wasy v. State, (1955) 234 Ind. 52, 123 N.E.2d 462, a party then has at hand all the requisite information for making an intelligent choice of whether to challenge those before him. Thus the rule itself is proper.\\nWe have no record of the voir dire examination of the jury or objections made, therefore, we are unable to make a determination as to whether or not the court properly, applied the rule. Appellant has the duty to bring a record which supports his claimed errors and which is sufficient to permit an intelligent decision of the issues. Ind. Rules A.P. 7.2(A)(2); Anderson v. Indiana State Emp. Appeals Commission, (1977) 172 Ind.App. 529, 360 N.E.2d 1040. Thus the issue of whether the rule was properly applied is waived.\\nKranda challenges several instructions given by the trial court. The trial court gave the following instruction over objection:\\n\\\"You are instructed that expert testimony is necessary in this case to establish the standard of care to be exercised by physicians and surgeons. In determining what the standard of care was in the treatment rendered, you will be guided solely by the experts who have testified on the subject and you may not define a standard of care of your own.\\\"\\nA similar instruction was accepted in Davis v. Schneider, (1979) Ind.App., 395 N.E.2d 283. See, also Long v. Johnson, (1978) Ind.App., 381 N.E.2d 93. Kranda argues that such an instruction misleads the jury because it gives the impression that the panel member's opinion is conclusive. No such impression exists. The instruction was given to instruct the jury concerning the establishment of an appropriate standard of care owed by Houser to Kranda. The instruction is sufficiently clear and we do not believe that it would have misled the jury into believing the only experts to consider in determining this standard were the panel members. The general rule in malpractice cases is that, in determining whether the physician and surgeon have exercised ordinary skill and care in the diagnosis of the disease, the treatment of the patient, and the result obtained thereby, the jury must be guided solely by the testimony of physicians and surgeons because of the scientific nature and character of the questions usually involved in such cases. The jury cannot set up standard of skill and care of its own. Davis, supra at 288 (quoting Adkins v. Ropp, (1938) 105 Ind.App. 331, 335, 14 N.E.2d 727, 729). Kranda argues further in her brief that the instruction is defective because expert evidence is not required in that the treatment warranted an inference of lack of care. Because this argument was not the same basis that she argued to the trial court; we need not address this issue. TR. 51(C); Davis, supra.\\nKranda's next allegation of error concerning instructions arises from the court giving the following:\\nIn determining the weight to which the testimony of any expert witness is entitled, you should consider the experience of the witness in the field with respect to which he has testified, how recently he has actively practiced or participated in such field, whether he is familiar with the advanced state of medical practice in such field in the community wherein the defendants have practiced or in similar communities, whether said witness is permitted or prohibited from practicing the specialty, regarding which he testified, in hospitals in the community wherein the defendants practice or in similar communities.\\nIn her brief, Kranda raises only two objections to this instruction which were also raised at trial. She first claims that whether or not the expert witness had experience in the field with respect to which he testified or whether he practiced in it or was familiar with such a field should not be considered in determining the weight to be given to that testimony. We disagree. To qualify as an expert witness on a subject, the witness must have sufficient skill, knowledge or experience in that field in order for his opinion to be of any value to the jury. Davis, supra at 290. The jury may consider what experience or familiarity the witness has in the field about which he testified in determining the weight to be given to such testimony.\\nKranda further argues that the reference in the instruction to \\\"in such field in the community . or in similar communities\\\" applies the \\\"locality rule\\\" which is not applicable to a medical specialist, in particular a Board Certified physician in obstetrics and gynecology where expert testimony suggested a national standard in this field. The \\\"modified locality rule\\\" is accepted as the law in Indiana. Joy v. Chau, (1978) Ind.App., 377 N.E.2d 670. The Supreme Court of Indiana approved an instruction applying the \\\"modified locality\\\" rule to physicians practicing a medical spe-ciality in Worster v. Caylor, (1953) 231 Ind. 625, 110 N.E.2d 337. Id. The rule recently received approval in Bassett v. Glock, (1977) Ind.App., 368 N.E.2d 18. Further, the only expert who was not from the same community was from Chicago. The expert testimony suggested that Chicago was a similar community as related to the practice of gynecology. Thus, even if such instruction were erroneous we do not feel that the instruction could have been the basis of the verdict. Therefore, the giving of it would be harmless error.\\nKranda also challenges the following instruction:\\nYou are instructed in this case that if you find from a fair preponderance of the evidence that the defendants in this case exercised that degree of skill and knowledge in their treatment which was ordinarily possessed by physicians and surgeons in similar circumstances and in similar fields of specialty at the time of this incident, then the plaintiff cannot recover in this action.\\nShe claims that this instruction is improper because it is argumentative, negative and repetitious. Although stated in the negative, it is a correct statement of the law and not argumentative. While we recognize mandatory instructions are not the best type of instructions to give a jury, cases reversing on this ground generally have more than one such instruction urging the jury repeatedly to return a verdict for one of the parties. See White v. Evansville American Legion Home Ass'n, (1965) 247 Ind. 69, 210 N.E.2d 845. In White, supra the court told the jury eighteen different times, in substance, that the plaintiff could not recover. In the present case, we find no other mandatory instruction. Thus, we do not have the situation in White, supra, where the jury could easily conclude that the trial judge is repeatedly urging them to return the verdict for the defendant.\\nFurther, we do not find this instruction unduly repetitious with the Court's Instruction Number 4. The court's instruction is a general statement defining negligence whereas this instruction applies the law to the particular facts of this case. Even if the instruction was repetitious, this court is reluctant to reverse a judgment solely on that ground. Keeshin Motor Express Co. v. Glassman, (1942) 219 Ind. 538, 38 N.E.2d 847. We recognized the principle that unnecessary repetition may be reversible error; however, in any set of instructions there is apt to be some reiteration of the applicable rules of law. Id. [0]nly in exceptional cases, and particularly where from the whole record we cannot fairly say that a correct result was reached, will we attempt to reverse. Keeshin, supra.\\nInstruction Number 11 which is also raised as error reads as follows:\\nYou are instructed that a physician is not bound to use any particular method of treatment; if, among physicians and surgeons of ordinary skill and learning, more than one method of treatment is recognized, it is proper for a doctor to adopt any recognized method of treatment. The fact that another method of treatment existed, or that another physician would have used a different method does not establish negligence.\\nThe chief objection appears to be that the jury was not informed that it must consider the facts and circumstances of this particular case in determining if Dr. Houser selected an appropriate method of treatment. The same objection was raised and rejected in Joy v. Chau, (1978) Ind.App., 377 N.E.2d 670 when it accepted a similar instruction. Kranda's second argument is that the instruction confuses the jury by pointing to one issue. It is elementary that the instructions to the jury must be viewed as a whole and construed in harmony with each other and it is not necessary for any one instruction to contain all the law applicable to the case. Joy, supra (citing Evans v. Breeden, (1975) 164 Ind.App. 558, 330 N.E.2d 116). Other instructions established the duty owed to plaintiff and the standard of care required. When construed together, the instructions adequately address the issue of negligence in making the decision concerning treatment and in performing the surgery. Additionally, the jury was instructed that it must construe all the instructions as a whole and in harmony with each other, and that it must consider the evidence in light of the law as contained in the instructions. When these instructions are read as a whole, they do not mislead the jury.\\nKranda also claims that the court's instruction defining negligence was misleading because it allowed the jury to apply it equally to the plaintiff as well as to the defendants. The instruction provides:\\nNegligence is the failure to do what a reasonably careful and prudent person would have done under the same or like circumstances, or the doing of something which a reasonably careful and prudent person would not have done under the same or like circumstances; in other words, negligence is the failure to exercise reasonable and ordinary care.\\nReasonable and ordinary care is such care as a reasonable, careful and ordinarily prudent person would exercise under the same or similar circumstances.\\nWe do not see how this instruction could cause the jury to consider any contributory negligence of plaintiff. It does not refer to plaintiff. When read in context with the other instructions, it is clear that the instruction is referring to the defendant's basis of liability. Without more we can find no error in the court giving this instruction.\\nThe court's instruction defining proximate cause is claimed to be defective because it refers to proximate cause in the singular; thereby, foreclosing the jury's consideration of more than one cause. Kranda's problem is that she did not object to this instruction when it was read as a Preliminary Instruction. To permit Kranda to contest the rereading of a Preliminary Instruction after it became a Final Instruction would effectively void the statutory language of TR. 51(A) unless the evidence presented or events occurring at trial have changed the possible application of the instructions. See, e. g. Cochrane v. Lovett, (1975) 166 Ind.App. 684, 337 N.E.2d 565. This specific objection was available at the time the preliminary instruction was given and was not affected by the evidence or events at trial. Therefore, this question is waived. Even if not waived we would find no error because Final Instruction Number 10 adequately covered the law of proximate cause, and that defendant's negligence need not be the sole proximate cause. Thus when read as a whole, the instructions defeat this objection.\\nThe objection to the court's instruction number 11 was based on the unconstitutionality of the Medical Malpractice Act which has been held constitutional by our Supreme Court in Johnson v. St. Vincent's Hospital, supra. Therefore, we need not discuss this contention.\\nThe court's instruction number 12 was given which was a peremptory instruction removing the issues of informed consent and liability of the medical corporation from the jury. A peremptory instruction may be given when there is absence of evidence to establish one or more of the elements essential to plaintiff's right to recover. Gibson v. Froman, (1966) 138 Ind.App. 497, 212 N.E.2d 25. Because we have decided the issue of informed consent was properly withdrawn from the jury, this instruction as to that issue was not error. The part of the instruction concerning the medical corporation, although error, was harmless error in view of the verdict in favor of the defendant doctor and our decision that the granting of the TR. 50 motion was harmless error.\\nKranda next contends that the court erred in refusing to give her tendered instructions numbered 1, 2, 3, 4, 5, 12, and 13. In considering whether any error results from refusal of a tendered instruction we must determine: (1) whether the tendered instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; (3) whether the substance of the tendered instruction is covered by other instructions which are given. Dahlberg v. Ogle, (1978) Ind., 373 N.E.2d 159, 165 (quoting Davis v. State, (1976) 265 Ind. 476, 355 N.E.2d 836).\\nKranda's tendered instruction number 1 outlined Houser's duty to use reasonable skill and diligence ordinarily exercised by other members of Houser's profession. The substance of this instruction was specifically set forth in Final Instructions numbered 2, 3, and 6. It is not error to refuse an instruction if the substance is covered by other instructions which are given. Dahlberg v. Ogle, supra.\\nKranda tendered an instruction on res ipsa loquitur which, although a correct statement of the law, was refused because evidence of specific acts of negligence were presented. Presentation of evidence of specific acts of negligence is no longer recognized as a valid basis for removal- of the doctrine of res ipsa loquitur from a lawsuit. New York, Chicago & St. Louis R. Co. v. Henderson, (1957) 237 Ind. 456, 146 N.E.2d 531. However, we must affirm a trial court's action if there is any legal ground upon the record for affirmance, even if the reason given by the trial court is erroneous. Elmore v. City of Sullivan, (1978) Ind.App., 380 N.E.2d 108. Thus we must determine if there was a proper ground for rejecting this instruction.\\nIn Carpenter v. Campbell, (1971) 149 Ind.App. 189, 271 N.E.2d 163 this court discussed the use of this doctrine in a medical malpractice case:\\nAs a general proposition it may be stated that the doctrine of res ipsa loquitur permits negligence to be inferred from the unusual character of an injury suffered when it occurs while a patient and his actions or reactions are under a doctor's care and exclusive control. For the doctrine to be applicable, the injury must be of a character which would not occur but for an act of negligence and it must be caused by an agency or instrumentality within the exclusive control of the physician. In the last analysis, res ipsa loquitur is an evidentiary doctrine \\u2014 a mere method of proof. It is premised upon an assumption that in certain instances an occurrence is so unusual that absent a reasonable justification those in control of the situation should be held responsible.\\nThe doctrine may be invoked in medical malpractice actions, when a layman is able to say that as a matter of common knowledge the consequences of the professional treatment are not those which ordinarily result if due care is exercised when there is no basis of common knowledge for such a conclusion, application of the doctrine may be grounded upon expert testimony. Id. at 271 N.E.2d 167. From the evidence presented, there is no question that the injury occurred while Kranda was under Dr. Houser's care and exclusive control. The issue, then, is whether the injury was of such character which would not ordinarily occur but for an act of negligence. Brook v. St. John's Hickey Mem. Hosp., (1977) Ind.App., 368 N.E.2d 264 (rev'd on different grounds 269 Ind. 270, 380 N.E.2d 72). In the present case, there is no basis of common knowledge for such a conclusion; therefore, we must determine if there is expert testimony to support this conclusion.\\nDr. Cook and Dr. Plain testified that in their combined seventy-five years of clinical experience they had never seen a fistula following a Bartholin gland excision. Dr. Houser stated that he had never entered the patient's rectum in thirty prior Bartholin cyst operations. In addition Dr. Roseman testified that he had not heard of a surgeon entering the rectum via the vagi na. Generally, this evidence would support the conclusion that this injury is one which does not ordinarily occur. However, this evidence is defective in that no expert testified that this injury would not ordinarily occur but for negligence. Furthermore, no one testified that this would not ordinarily occur in Bartholin cyst surgery on a Crohn's disease patient who had one prior surgery and resulting scar tissue. Each, in fact, testified that the situation made the surgery more complicated and more difficult. No one was familiar with a similar situation. Thus, we find no evidence to support the conclusion that the injury was one which would not ordinarily occur in the exercise of due care and the refusal of Kranda's instruction on this subject was proper.\\nKranda next alleges error in the court's refusal of the following tendered instruction:\\nIf you find from a greater weight of the evidence that the symptoms and physical conditions existing in the plaintiff, Mary Kranda, were such as to require a careful and prudent physician and surgeon to make further investigation or more and different tests before making a diagnosis, and if you find from the evidence that the defendant, Keim T. Houser, M.D. did not make such investigations or tests, and if you further find from the evidence that as a direct and proximate result of such failure, if any, the plaintiff Mary Kranda received improper treatment from which she later suffered, then you may find the defendant Keim T. Houser, M.D liable for all the damages and injuries suffered by the plaintiff Mary Kranda as a result of such failure.\\nThis instruction incorrectly states the law. It would permit the jury to consider any evidence to determine if a careful and prudent physician and surgeon would have made further investigation and tests before diagnosis. A court instruction correctly stated that the only evidence to be considered on such an issue is medical expert testimony. Davis, supra; therefore this instruction could mislead the jury, Further, the required care must relate to physicians and surgeons who devote special attention to the ailment, its diagnosis and treatment in similar localities. Bassett, supra. The refusal of a defective instruction is not error. Smith v. State, (1979) Ind., 388 N.E.2d 484. In addition, we note that the substance of this instruction was covered by other court instructions. See, e. g. Evans v. Breeden, (1975) 164 Ind.App. 558, 330 N.E.2d 116. Therefore, the refusal of this instruction was proper.\\nKranda also tendered an instruction that if a physician or surgeon, such as Dr. Houser, knows or should know that a specialist in another field of medicine is required in order to effectuate proper treatment to the patient, it is the duty of the doctor to so advise the patient. As Kranda notes in her brief, this instruction sets out the duty of a doctor to refer a patient to a specialist when the patient's ailment is beyond the doctor's abilities. Rahn v. United States, (1963) 222 F.Supp. 775, 780, 35 A.L.R.3d 349. No expert testified that Dr. Houser should have referred Kranda to another doctor. Dr. Cook testified that he consults with an internist or gastroenterologist when he has a gynecology patient with Crohn's disease. While this testimony could support an instruction concerning a duty of consultation, it does not provide probative evidence of a duty of referral in this case. Therefore, the trial court did not err in refusing this instruction. Furthermore, the legal principle contained in this instruction was also covered in other court instructions given by the court. See e. g. Evans, supra.\\nKranda argues that her tendered instructions concerning the doctor's limited liability for an occurrence of malpractice and the fact that any recovery in excess of the $100,000.00 limitation is recovered from the Patient Compensation Fund should have been given in light of publicity surrounding the medical malpractice \\\"crisis\\\" and the extravagant claims of financial disaster made by the health care industry. While these tendered instructions are correct statements of the law, they are not relevant to the issues at hand. Instructions must be relevant to the issues as formulated at trial, and this requirement is not necessarily satisfied by a correct statement of the law. Hotz v. Gelsthorpe, (1979) Ind.App., 387 N.E.2d 78. The purpose of instructing jurors is to advise them of a particular question they are to determine and to inform them as to the law and how to apply it to the facts as they find them to be from the evidence. Coleman v. Chapman, (1966) 139 Ind.App. 385, 220 N.E.2d 285. There is no question before the jury concerning the subject of these instructions. In addition, the instructions are objectionable not only because they are irrelevant but because they tend to prejudice the jury against the defendant as do other collateral sources of compensation instructions. See, e. g. Miller v. Alvey, (1965) 246 Ind. 560, 207 N.E.2d 633. The instruction was properly refused.\\nKranda finally argues that the trial court erred in granting judgment on the evidence in favor of defendant Houser-Norborg Medical Corporation. The trial court sustained this motion on the basis that a medical corporation cannot be liable for malpractice because it cannot practice medicine. In Birt v. St. Mary Mercy Hosp. of Gary, Inc., (1977) Ind.App., 370 N.E.2d 379 this court held that the corporate entity organized under the Indiana Medical Professional Corporation Act is liable for malpractice committed by one of its members. Therefore, the trial court did err in granting judgment on the evidence as to the corporation when it had also ruled that Kranda had made a prima facie case against defendant Dr. Houser. However, this error was harmless because of the jury's verdict for defendant Houser.\\nKranda argues for the first time in her reply brief that the corporation's liability need not be based on vicarious liability. Rather the corporation can be liable for its own acts of negligence. Because this argument was not included in her motion to correct errors or her original brief and because she failed to direct us to any part of the record which would support this proposition, she has waived this issue. A.R. 8.3(A)(7); see, e. g. Clow Corp. v. Ross Tp. School Corp., (1979) Ind.App., 384 N.E.2d 1077; Highland v. Williams, (1975) 166 Ind.App. 492, 336 N.E.2d 846; Saloom v. Holder, (1974) 158 Ind.App. 177, 307 N.E.2d 890.\\nThe judgment of the trial court is affirmed.\\nHOFFMAN, P. J. (sitting by designation), and MILLER, J., concur.\\n. Her Crohn's disease was first discovered in 1969. Crohn's disease is an inflammation of the ileum of the small bowel and large colon. As a result of this disease, Kranda had already had three feet of her intestine in the right colon removed.\\n. Indiana Code 16.-9.5-9-4 reads in part:\\nThe evidence to be considered by the medical review panel shall be promptly submitted by the respective parties in written form only. The evidence may consist of medical charts, x-rays, lab tests, excerpts of treatises, depositions of witnesses including parties and any other form of evidence allowable by the medical review panel. Depositions of parties and witnesses may be taken prior to the convening of the panel. The chairman of the panel shall advise the panel relative to any legal question involved in the review proceeding and shall prepare the opinion of the panel as provided in section 7 [16-9.5-9-7], A copy of the evidence shall be sent to each member of the panel....\\n. IC 16-9.5-9-6 provides:\\nThe panel shall have the right and duty to request all necessary information. The panel may consult with medical authorities. The panel may examine reports of such other health care providers necessary to fully inform itself regarding the issue to be decided. Both parties shall have full access to any material submitted to the panel.\\n. IC 16-19.5-9-5 provides:\\nEither party, after submission of all evidence and upon ten [10] days' notice to the other side, shall have the right to convene the panel at a time and place agreeable to the members of the panel. Either party may question the panel concerning any matters relevant to issues to be decided by the panel before the issuance of their report. The chairman of the panel shall preside at all meetings. Meetings shall be informal.\\n. IC 16-9.5-9-3 provides in part:\\nThe attorney shall act as chairman of the panel and in an advisory capacity but shall have no vote. It is the duty of the chairman to expedite the selection of the other panel members, to convene the panel, and expedite the panel's review of the proposed complaint. The chairman may establish a reasonable schedule for submission of evidence to the medical review panel but must allow sufficient time for the parties to make full and adequate presentation of related facts and authorities.\\n. IC 16-9.5-9-7 provides:\\nThe panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within [30] days, render one or more of the following expert opinions which shall be in writing and signed by the panelists:\\n(a) The evidence supports the conclusion that defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.\\n(b) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.\\n(c) That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury.\\n(d) The conduct complained of was or was not a factor of the resultant damages. If so, whether the plaintiff suffered: (1) any dis ability and the extent and duration of the disability, and (2) any permanent impairment and the percentage of the impairment.\\n.See note 7 on page 1034.\\n7. IC 16-9.5-9-9 provides:\\nAny report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such expert opinion shall not be conclusive and either party shall have the right to call, at his cost, any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify. A panelist shall have absolute immunity from civil liability for all communications,' findings, opinions, and conclusions made in the course and scope of duties prescribed by this article.\\n. IC 16-9.5-9-10 provides in part:\\nFees of the panel including travel expenses and other expenses of the review shall be paid by the side in whose favor the majority opinion is written. If there is no majority opinion, then each side shall pay one-half [V2] of the cost.\\n. Local Rule 7(C) of the St. Joseph Superior Court reads in part:\\n\\\"Where counsel conduct some portion of the examination, counsel for each party may examine the panel once without passing. Counsel may be permitted to reopen the examination of passed jurors, on motion, in the discretion of the Court. Counsel shall reserve preemptory (sic.) challenges until all counsel have examined the panel once. All counsel shall then approach the bench and make their challenges in the manner and sequences that.the Judge directs, and shall then pass. Jurors who are not thus excused will be deemed accepted by all parties and may not be examined further by counsel without leave of Court.\\\"\\n. From the context of the rule, \\\"without passing\\\" appears to be used in this paragraph to mean \\\"without accepting.\\\" Thus, counsel can pass the jury once to the opponent for examination without exercising any peremptory challenges.\\n. The objections to this instruction were the same as those considered in determining the propriety of withdrawing these issues from the jury and, therefore, are discussed fully elsewhere in this opinion.\\n. IC 16-9.5-2-2 generally provides that a physician found negligent \\\"is not liable for an amount in excess of $100,000.00 for an occurrence of malpractice\\\" and that any amount in excess of $100,000.00 is recoverable from the patient's compensation fund.\"}"

ind/11063612.json

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+"{\"id\": \"11063612\", \"name\": \"William COWELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below)\", \"name_abbreviation\": \"Cowell v. State\", \"decision_date\": \"1981-02-23\", \"docket_number\": \"No. 680S166\", \"first_page\": \"839\", \"last_page\": \"842\", \"citations\": \"416 N.E.2d 839\", \"volume\": \"416\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T01:53:35.702228+00:00\", \"provenance\": \"CAP\", \"judges\": \"GIVAN, C. J., and DeBRULER, PRENTICE and PIVARNIK, JJ., concur.\", \"parties\": \"William COWELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).\", \"head_matter\": \"William COWELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).\\nNo. 680S166.\\nSupreme Court of Indiana.\\nFeb. 23, 1981.\\nHarriette Bailey Conn, Public Defender of Indiana, Ihor N. Boyko, Deputy Public Defender, Indianapolis, for appellant.\\nTheodore L. Sendak, Atty. Gen. of Indiana, Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellee.\", \"word_count\": \"1333\", \"char_count\": \"8474\", \"text\": \"HUNTER, Justice.\\nThe petitioner is before this Court appealing from the denial of his petition for relief under Post-Conviction Relief, Rule 1. He was convicted by a jury of first-degree murder and sentenced to life imprisonment. The conviction was affirmed by this Court in a unanimous opinion, Cowell v. State, (1975) 263 Ind. 344, 331 N.E.2d 21. His petition now raises this sole issue:\\n1. Whether the defendant was denied his right to effective assistance of counsel.\\nIn post-conviction proceedings, the burden of proof rests with the petitioner to establish his grounds for relief by a preponderance of the evidence. Laird v. State, (1979) Ind., 385 N.E.2d 452; Davis v. State, (1975) 263 Ind. 327, 330 N.E.2d 738. It is the responsibility of the judge hearing the petition to weigh the evidence and judge the credibility of witnesses, and his determination denying relief will be reversed only where the evidence is without conflict and leads unerringly to a result other than that reached by the trial court. Baker v. State, (1980) Ind., 403 N.E.2d 1069; Riner v. State, (1979) Ind., 394 N.E.2d 140.\\nFirst, defendant contends that his representation was inadequate due to a conflict of interest on the part of his trial attorney. The evidence discloses that after defendant's arrest, his wife contacted a local law firm and secured counsel for defendant, paying the firm with her own money. Several days after obtaining legal representation for defendant, she approached this same firm and secured representation for herself concerning some civil matters and an unrelated criminal charge against her.\\nAt the time of defendant's trial, his attorney represented both the defendant and his wife. The wife and her daughter (defendant's stepdaughter) were subpoenaed by the state and testified as witnesses for the prosecution. It is undisputed that the firm was also retained by defendant's wife for the purpose of protecting her daughter whom the wife feared might be culpable as an accessory after the fact for transporting and harboring defendant following the murder.\\nDefendant postulates that there was some sort of a deal between the state and these witnesses that they would testify in exchange for nonprosecution of the respective criminal liabilities facing them. Defendant does not expand upon this argument but we assume he means that whether his trial attorney was actively involved in the alleged \\\"deal\\\" or not, he was probably aware of it and was therefore restrained in his cross-examination of these witnesses, not wanting to jeopardize the chance of favorable treatment for them.\\nEven assuming that such a deal did exist, there are several problems with defendant's argument. First, the wife's testimony as a prosecution witness did not implicate the defendant in any way. Therefore, there was nothing on which to cross-examine which might have placed defendant's attorney in a position of conflict. Second, and most important, while the daughter's testimony did implicate defendant, defendant at no time denied that he had committed the murder. Rather, having made a confession to police and admitting his guilt on the stand, his defense was that of insanity.\\nOn cross-examination, defendant's attorney elicited from the daughter that at the time of the offense, she thought defendant was \\\"sick\\\" and \\\"disturbed.\\\" In addition, although defendant's wife did later give testimony implicating defendant, it occurred during her role as a defense witness in which she described defendant's mental instability consistent with the insanity defense.\\nWe certainly do not dispute case precedent which holds that a defendant is denied his constitutional right to effective assistance of counsel when his trial attorney, without defendant's knowledge and consent, concurrently represents a prosecution witness who gives damaging testimony and whose interests are adverse to those of defendant. Stephens v. United States, (5th Cir. 1979) 595 F.2d 1066; Castillo v. Estelle, (5th Cir. 1974) 504 F.2d 1243; United States ex rel. Williamson v. LaVallee, (E.D.N.Y. 1968) 282 F.Supp. 968; Scott v. District of Columbia, (D.C.Mun.App.1953) 99 A.2d 641, aff'd, (1954) 94 U.S.App.D.C. 227, 214 F.2d 860. However, as noted in United States ex rel. Williams v. LaVallee, supra:\\n\\\"The mere fact of dual representation, standing alone, does not create a Sixth Amendment violation. A conflict of interest must first be established.\\\" Id. at 974.\\nWe agree with the judge presiding at the post-conviction hearing that there was no conflict of interest under the facts of this case. Defendant admitted at the post-conviction hearing that he had told his trial attorney he had done the killing and that he had never proclaimed his innocence to him. Defendant asserted for the first time at the post-conviction hearing that he did not commit the murder. There having been no actual or possible conflict at the time of trial, we are not inclined to view defendant's previously unrevealed claim of innocence as grounds for establishing a conflict of interest and ineffective representation on the part of his attorney. See Martin v. State, (1974) 262 Ind. 232, 314 N.E.2d 60, cert. denied, (1975) 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 841.\\nNext, defendant maintains that his right to effective assistance of counsel was violated because his trial attorney failed to obtain a psychiatrist to examine him and present evidence in his favor in time for trial. He also notes that due to his lawyer's failure to comply with statutory requirements, his motion for a continuance, in which more time was sought in order to secure the services of a particular psychiatrist, was denied. Cowell v. State, (1975) 263 Ind. 344, 331 N.E.2d 21.\\nThe record of the original trial proceedings reveals that defendant's trial attorney represented to the court several days before trial that about a week prior to that, he first learned that several psychiatrists, who had submitted reports earlier indicating that they thought defendant was insane at the time of the crime, had reversed their opinion. He stated that attempts had been made to locate other psychiatrists who would be willing to examine defendant but that these attempts had been fruitless. In the motion for a continuance, defense counsel mentioned the name of a particular psychiatrist whom he thought would agree to examine defendant, but he was currently out of town. The motion was denied, and trial proceeded without any psychiatric testimony being offered on behalf of defendant.\\nEven assuming that defense counsel could have been more diligent in securing a psychiatric examination for defendant, we are not prepared to hold that defendant's representation was so inadequate as to reduce the trial, taken as a whole, to a mockery of justice. Baker v. State, (1980) Ind., 403 N.E.2d 1069; Huggins v. State, (1980) Ind., 403 N.E.2d 332. This Court has consistently sought to determine if and how a defense attorney's alleged inadequacies have harmed defendant at trial. Huggins v. State, supra; Crisp v. State, (1979) Ind., 394 N.E.2d 115.\\nHere, defendant presented no proof at the post-conviction hearing that the psychiatrist whose attendance was sought via the continuance, or any other psychiatrist, would have testified in support of the insanity defense. Besides defendant himself, defense counsel called two lay witnesses who testified as to defendant's mental instability. Also, on cross-examination, defense counsel elicited from two lay witnesses for the state testimony very favorable to the insanity defense. Furthermore, we note that defendant was examined by two court-appointed psychiatrists. They testified that defendant was sane, but defendant's attorney extensively cross-examined them as well as the psychiatrist called by the state. We hold that defendant's contention that he was denied effective assistance of counsel is without merit.\\nFor all the foregoing reasons, there was no trial court error and the judgment of the trial court should be affirmed.\\nJudgment affirmed.\\nGIVAN, C. J., and DeBRULER, PRENTICE and PIVARNIK, JJ., concur.\"}"

ind/11063776.json

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+"{\"id\": \"11063776\", \"name\": \"ALUMINUM COMPANY OF AMERICA, a corporation, Appellant (Plaintiff Below), v. The CITY OF LAFAYETTE, Indiana, Appellee (Defendant Below)\", \"name_abbreviation\": \"Aluminum Co. of America v. City of Lafayette\", \"decision_date\": \"1980-11-19\", \"docket_number\": \"No. 2-879 A 252\", \"first_page\": \"312\", \"last_page\": \"314\", \"citations\": \"412 N.E.2d 312\", \"volume\": \"412\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:54:28.305034+00:00\", \"provenance\": \"CAP\", \"judges\": \"BUCHANAN, C. J., and SULLIVAN, J., concur.\", \"parties\": \"ALUMINUM COMPANY OF AMERICA, a corporation, Appellant (Plaintiff Below), v. The CITY OF LAFAYETTE, Indiana, Appellee (Defendant Below).\", \"head_matter\": \"ALUMINUM COMPANY OF AMERICA, a corporation, Appellant (Plaintiff Below), v. The CITY OF LAFAYETTE, Indiana, Appellee (Defendant Below).\\nNo. 2-879 A 252.\\nCourt of Appeals of Indiana, Second District.\\nNov. 19, 1980.\\nJohn J. Dillon and William T. Rosenb-aum, Dillon, Hardamon & Cohen, Indianapolis, Thomas L. Ryan, Stuart, Branigan, Ricks & Schilling, Lafayette, for appellant.\\nRichard T. Heide, Kristin F. Magneson and Robert L. Bauman, Lafayette, for ap-pellee.\", \"word_count\": \"857\", \"char_count\": \"5356\", \"text\": \"SHIELDS, Judge.\\nAppellant Aluminum Company of America (Alcoa) appeals from a denial of a remonstrance to annexation by the City of Lafayette (City).\\nWe reverse in part.\\nIC 18-5-10-25 (Burns Code Ed.), which specifies the findings required to sustain the annexation of land by a city, provides in pertinent part:\\n\\\"If the evidence establishes that:\\n(c) The annexing city has developed a fiscal plan and has established a definite policy to furnish the territory to be annexed within a period of three [3] years, governmental and proprietary services substantially equivalent in standard and scope to the governmental and proprietary services furnished by the annexing city to other areas of the city which have characteristics of topography, pattern of land utilization and population density similar to the territory to be annexed; the court shall order the proposed annexation to take place notwithstanding the provisions of any other law of this state.\\\"\\nIn Sedlak v. Town of St. John, Lake County, (1980) Ind.App., 403 N.E.2d 1126 and Stallard v. Town of St. John, Lake County, (1979) Ind.App., 397 N.E.2d 648, it was held that IC 18-5-10-32, which sets out the findings required to sustain the annexation of land by a town and which is substantially identical to IC 18-5-10-25, requires a written fiscal plan and definite policy. We hold that IC 18-5-10-25 also makes this requirement.\\nIn the case at hand, the trial court specifically found:\\n\\\"2. The City developed no specific fiscal plan or definite policy, as such, to furnish the requisite services within three years, contending that it was capable of providing all such services within the time limit.\\\"\\nThe City does not challenge this finding which conclusively establishes the lack of written fiscal plan and definite policy to furnish governmental and proprietary services. Furthermore, the trial court's determination that City had the capability to provide the required services necessarily falls short of a written fiscal plan and definite policy to in fact provide the required services. A finding of capability is not an acceptable substitute in light of the rationale for the requirement of a written fiscal plan and definite policy as set forth in Stallard:\\n\\\"This interpretation of IC 1971, 18-5-10-32(c) is necessary to preserve for landowners of the annexed area the protection intended to be afforded them by the Legislature when, in 1974, it passed IC 1971, 18-5-10-32.5 (Burns 1979 Supp.). That statute authorizes an owner of annexed land to institute proceedings against an annexing town that fails to implement its plan for providing services. As indicated in Harris v. City of Muncie, supra (163 Ind.App. 522, 325 N.E.2d 208), if a written plan duly reflected in the official town records were not required under IC 1971, 18-5-10-32, a landowner filing suit under IC 1971, 18-5-10-32.5 would be faced with attempting to establish a failure to implement a plan whose existence he might be incapable of proving in the first instance. Thus, he would be relegated to tilting with windmills.\\\"\\nStallard at 650.'\\nThe judgment of the trial court denying the remonstrance, therefore, is contrary to law and hereby reversed.\\nThe City, on cross-appeal, asserts the trial court erred in dismissing its counterclaim alleging malicious prosecution and libel for a failure to state a claim upon which relief can be granted. We disagree and affirm the dismissal.\\nThe essential elements of a malicious prosecution action are:\\n\\\"... the prosecution of some legal proceedings by, or at the instigation of, defendant, the absence of probable cause to do so, malice in instituting the proceedings, the termination of such proceedings in plaintiffs favor, and damages sustained by plaintiff.\\\"\\n19 I.L.E. Malicious Prosecution, Ch. 1, \\u00a7 I-\\nDwyer v. McClean, (1961) 133 Ind.App. 454, 461, 175 N.E.2d 50, 53. The subject counterclaim for malicious prosecution on its face complains of the initiation and \\\"continued malicious prosecution\\\" of the remonstrance by Alcoa. Therefore, City pled itself out of court by affirmatively alleging its claim for malicious prosecution had not yet matured. Hunter v. Milhous, (1974) 159 Ind.App. 105, 305 N.E.2d 448. Furthermore, this issue is made moot by our reversal of the trial court's judgment in favor of the City.\\nWe further hold the trial court did not err in dismissing the City's claim for libel. A governmental entity cannot maintain an action for defamation in its own right even if a defendant maliciously publishes the defamatory statements knowing them to be false and with an intent to injure. New York Times Company v. Sullivan, (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686; Louisiana v. Time, Inc., (1971) La.App., 249 So.2d 328; City of Chicago v. Tribune Co., (1923) 307 Ill. 595, 139 N.E. 86.\\nJudgment reversed in part and affirmed in part.\\nBUCHANAN, C. J., and SULLIVAN, J., concur.\"}"

ind/11065855.json

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+"{\"id\": \"11065855\", \"name\": \"Eileen ALWOOD and Kent Alwood, Appellants-Plaintiffs, v. Claude E. DAVIS, M. D., Appellee-Defendant\", \"name_abbreviation\": \"Alwood v. Davis\", \"decision_date\": \"1980-10-30\", \"docket_number\": \"No. 3-1279A338\", \"first_page\": \"759\", \"last_page\": \"761\", \"citations\": \"411 N.E.2d 759\", \"volume\": \"411\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:10:40.539312+00:00\", \"provenance\": \"CAP\", \"judges\": \"YOUNG, P. J., and MILLER, J., concur.\", \"parties\": \"Eileen ALWOOD and Kent Alwood, Appellants-Plaintiffs, v. Claude E. DAVIS, M. D., Appellee-Defendant.\", \"head_matter\": \"Eileen ALWOOD and Kent Alwood, Appellants-Plaintiffs, v. Claude E. DAVIS, M. D., Appellee-Defendant.\\nNo. 3-1279A338.\\nCourt of Appeals of Indiana, Fourth District.\\nOct. 30, 1980.\\nRehearing Denied Nov. 24,1980.\\nVernon J. Petri and John J. Fuhs, Petri & Fuhs, Spencer, for appellants-plaintiffs.\\nWilliam F. McNagny and John F. Lyons, Barrett, Barrett & McNagny, Fort Wayne, for appellee defendant.\", \"word_count\": \"1351\", \"char_count\": \"8171\", \"text\": \"CHIPMAN, Judge.\\nEileen Alwood brought this medical malpractice action against Dr. Claude Davis. Her husband also brought a loss of consortium action against Davis. The trial court granted Davis' Motion for Summary Judgment as to both actions and Mrs. Alwood brings this appeal. We affirm.\\nAlwood has raised the issue of whether the statute of limitations for medical malpractice is tolled until the patient discovers or has a reasonable opportunity to discover the essential elements of the cause of action.\\nFACTS\\nThe facts, summarized in a light most favorable to the non-moving party, Al-wood, show that in 1965 Alwood, then 16 years old, broke her ankle in a skateboard accident. Davis treated her for this injury by using two screws to set the fracture. Alwood alleges Davis negligently placed the screws and failed to remove them when he should have, causing her injured left leg to grow one and one quarter (IV4) inches longer than her right leg. This difference in length caused Alwood to experience severe back pain.\\nAfter the ankle had healed Alwood complained to Davis on more than one occasion that she experienced pain and swelling of the ankle. Davis instructed her to learn to live with the discomfort and in response to her inquiry, informed her the pain would not be reduced by removing the screws. In 1970 or 1971, while with her husband who was stationed in Texas, she visited doctors for her back pain. They took x-rays of her ankle but did not tie it in with the continued back pain. Alwood last visited Davis in 1973.\\nIn 1975 Alwood visited Dr. Olmsted hoping he could determine the source of her back pain. She then learned about the differing lengths of her legs and Olmsted attributed this difference to the alleged improper treatment ten years earlier of her fractured ankle. Alwood filed this suit within two years of her visit to Olmsted.\\nDavis moved for summary judgment arguing the claim was barred by the two year statute of limitations. The motion was granted by the trial court. On appeal, Al-wood petitions us to interpret or construe the applicable limitation statute to mean the two year period began to run in 1975, when she discovered her cause of action.\\nIn her brief, Alwood does not argue the fraudulent concealment exception found in Guy v. Schuldt, (1956) 236 Ind. 101, 138 N.E.2d 891, accordingly, we will not consider the possible application of that exception.\\nTHE STARTING DATE OF THE LIMITATION PERIOD\\nThe alleged malpractice in this case occurred in 1965 and therefore the applicable limiting statute is IC 34-4-19-1.\\n\\\"34-4-19-1 Malpractice \\u2014 Limitation of actions. \\u2014 No action of any kind for damages, whether brought in contract or tort, based upon professional services rendered or which should have been rendered, shall be brought, commenced or maintained, in any of the courts of this state against physicians, dentists, surgeons, hospitals, sanitariums, or others, unless said action is filed within two [2] years from the date of the act, omission or neglect complained of.\\\"\\nThis statute is not ambiguous. It does not say \\\"within two years from the date of discovery of the act, omission or neglect complained of.\\\" This statute is an occurrence rule, not a discovery rule. The two year period begins to run from the date of the act, omission, or neglect complained of.\\nA1 wood's brief cites several jurisdictions which now employ the discovery rule but with the exception of one case, all of the cases cited deal with jurisdictions whose limiting statutes speak in terms of \\\"within two years after such claim accrues,\\\" or \\\"within two years from the date on which the claimant knew or through the use of reasonable care should have known of the injury,\\\" etc. Our legislature has not seen fit to allow the residents of Indiana this amount of protection.\\nIn Carrow v. Streeter, Ind.App., 410 N.E.2d 1369 (1980), the Second District recently stated, \\\"Indiana courts have ex pressly rejected the so-called 'discovery rule' .\\\" citing Toth v. Lenk, (1975) 164 Ind.App. 618, 330 N.E.2d 336. We disagree with this statement and with this interpretation of the Toth majority opinion. In deciding this case as we have, we find IC 34 \\u2014 4-19-1 cannot reasonably be construed as a discovery rule. We have not though, ruled out the possibility of deciding in a future case that this occurrence rule must be applied as though it was a discovery rule due to the questionable constitutionality of the occurrence rule.\\nThe constitutionality of this limiting statute, as applied to patients unaware of the existence of their cause of action against a professional included within the statute, was not raised nor argued at the trial or appellate levels. Therefore we are prevented from deciding the constitutionality of this statute as it may apply to the situation where the statute of limitations has run on a person before she has any knowledge, either actual or constructive, that her doctor has malpracticed.\\nIn 1974 the Supreme Court in Chaffin v. Nicosia, (1974) 261 Ind. 698, 310 N.E.2d 867, expressed a concern that this statute may violate Article 1, \\u00a7 12 of our constitution guaranteeing open courts and redress for injury for every man. Later, in City of Fort Wayne v. Cameron, (1977) 267 Ind. 329, 370 N.E.2d 338, the Supreme Court refused to strictly apply an occurrence rule in a situation analogous to this case.\\nAlthough the 1975 Medical Malpractice Act, and its similarly worded limiting statute, recently survived constitutional attack in Johnson v. St. Vincent Hospital, Inc., (1980) Ind., 404 N.E.2d 585, we do not believe this specific constitutional objection was made by the parties nor was it addressed by the Court. In that case, the appellants Bovas raised an equal protection challenge to the limiting statute based on the classification of claimants by age and by the nature of their actions. In upholding the constitutionality of this section, the Court proceeded from the premise that a manifestation of the malpractice occurred within the two year statute of limitation, or in the case of a child, before its eighth birthday. The Court in Johnson does not address the issue presented in this case.\\nIt is interesting to note that testimony given in one of Johnson's companion cases sheds some light on the number of plaintiffs who are left without a legal remedy under the occurrence rule interpretation of the two year statute of limitations. William J. Davy, a former State Insurance Commissioner, is the President of Medical Protective Company which is the largest insurer of doctors in the state. He testified that when they insure a doctor in year one, by the end of year two they will know of approximately five to seven percent of the claims arising from year one against that doctor. By the end of year three, they will know of approximately 28-29% of the claims. Even accounting for lag time and plaintiffs who could take advantage of the fraudulent concealment exception, this occurrence rule statute still seems to turn away a considerable number of plaintiffs who may have valid claims.\\nThe constitutionality of this result will have to be determined when it is properly presented.\\nThe judgment of the trial court is affirmed.\\nYOUNG, P. J., and MILLER, J., concur.\\n. The Medical Malpractice Act and its similarly worded limiting statute, IC 16-9.5-3-1, applies only to acts of malpractice occurring after June 30, 1975.\\n. The one case cited that does not involve a statutorily mandated discovery rule was Dyke v. Richard, (1973) 390 Mich. 739, 213 N.W.2d 185. In that case the Michigan Supreme Court chose to ignore the clear intent of the Michigan legislature by reasoning the legislature misspoke in an attempt to codify one of its decisions.\\n. Mansur v. Carpenter, (1980) Ind., 404 N.E.2d 585.\"}"

ind/11193933.json

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+"{\"id\": \"11193933\", \"name\": \"Guadalupe A. SANCHEZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff\", \"name_abbreviation\": \"Sanchez v. State\", \"decision_date\": \"2000-06-05\", \"docket_number\": \"No. 92A03-9908-CR-322\", \"first_page\": \"165\", \"last_page\": \"175\", \"citations\": \"732 N.E.2d 165\", \"volume\": \"732\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T17:32:51.318126+00:00\", \"provenance\": \"CAP\", \"judges\": \"DARDEN, J., and FRIEDLANDER, J., concur.\", \"parties\": \"Guadalupe A. SANCHEZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.\", \"head_matter\": \"Guadalupe A. SANCHEZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.\\nNo. 92A03-9908-CR-322.\\nCourt of Appeals of Indiana.\\nJune 5, 2000.\\nTransfer Granted Sept. 5, 2000.\\nSusan K. Carpenter, Public Defender of Indiana, Gregory L. Lewis, Deputy Public Defender, Indianapolis, Indiana, Attorneys for Appellant.\\nJeffrey A. Modisett, Attorney General of Indiana, Barbara Gasper Hines, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.\", \"word_count\": \"5877\", \"char_count\": \"36238\", \"text\": \"OPINION\\nVAIDIK, Judge\\nAppellant, Guadalupe A. Sanchez, appeals his convictions for Rape, a Class A felony, and Confinement, a Class B felony. Specifically, he contends that the trial court instruction, informing the jury that it could not consider evidence of his voluntary intoxication, violates the Due Course of Law provision of the Indiana Constitution. In 1996, the United States Supreme Court held that states could prevent defendants from presenting evidence of voluntary intoxication to show that they did not have the requisite intent to commit the charged offense. Sanchez acknowledges this holding but argues that the right is preserved under the Indiana Constitution and in particular, the Due Course of Law provision. Our review of the history at the time of the 1851 convention does not reveal that the drafters intended to guarantee a defendant the right to present evidence of intoxication under the Indiana Constitution. Additionally, subsequent case law, analyzing claims under the Due Course of Law provision, have utilized federal due process analysis. Therefore, we disagree that Sanchez is entitled to present evidence of intoxication under the Due Course of Law provision. Moreover, we conclude that even if our constitution does preserve such a right, because Sanchez was not entitled to an instruction on voluntary intoxication, no error can arise from the instruction given. We affirm.\\nFacts and Procedural History\\nOn July 6, 1998, seventeen-year-old H.S. went to the birthday party of Caesar Montezuma at a trailer situated on a horse farm. Sanchez was a guest at the party that began around 9:30 p.m. During the evening, Sanchez drank alcoholic beverages. After a while, the guests, including Sanchez, began dancing. While dancing with some of the female guests, Sanchez began touching their buttocks and between their legs. As a result, Montezuma's girlfriend, Jessica Alvarez, asked Sanchez to leave the party.\\nAround 11:30 p.m., most of the guests left the party. H.S. remained behind with two of her friends. Shortly thereafter, Sanchez returned and knocked on the door of the trailer. Montezuma opened the door and saw Sanchez carrying a 25 caliber semi-automatic handgun. Although H.S., Jessica and another girl attempted to flee, they were summoned back to the trailer. Sanchez then questioned them concerning the whereabouts of another girl who had been at the party. Although they informed Sanchez she was not there, he continued to ask about her. Sanchez then instructed them to bring him all of the telephones in the trailer. Jessica complied with this instruction. Shortly thereafter, Sanchez became convinced that the young woman he was looking for was not at the trailer. Consequently, he grabbed H.S. and forced her at gunpoint to leave with him. He then informed the others that if they moved, he would kill them.\\nSanchez led H.S. to a cornfield where he ordered her at gunpoint to take off her clothes. The defendant then took off his clothes, except for his pants which were at his ankles. Still holding the gun, Sanchez ordered H.S. to lie on the ground where he forced her to engage in sexual intercourse. Sanchez then performed oral sex on H.S. and kissed her. In disgust, H.S. spit which made Sanchez angry. He told her that if she spit again, he would kill her. Sanchez then lay on top of H.S. and began to have sexual intercourse with her again. Before he was finished, he instructed H.S. to get on her hands and knees and penetrated her from behind. Sanchez then ordered H.S. to straddle him and forced her to engage in sexual intercourse again.\\nFollowing the series of rapes, Sanchez allowed H.S. to get dressed. Once H.S. dressed and stood up, Sanchez began kissing her again. He then ordered her to lie on the ground, took off her clothes and engaged her in sexual intercourse again. Sanchez placed his penis in H.S.'s face and taunted her by asking, \\\"You want, you want?\\\" Record at 382.\\nAt that point, H.S., believing that the police would be looking for them, suggested that Sanchez take her to his house. Sanchez agreed and led H.S. by foot to his home which was about three and half miles away. They followed a road for most of the way. Whenever a car approached, Sanchez would hide H.S. in the bushes or ditch. At one point, when they were close to Sanchez's house, H.S. attempted to escape by suggesting that they take different routes to the house. Sanchez refused.\\nEventually they entered Sanchez's house. Sanchez took H.S. to the basement. Because H.S. was cold, she asked Sanchez for a blanket. While Sanchez was upstairs retrieving the blanket, H.S. heard him say to another occupant of the house, \\\"I have a b \\u2014 ch downstairs, Don't mess with us.\\\" Record at 390. When Sanchez returned with the blanket he again forced H.S. to engage in sexual intercourse. At one point during the night, both Sanchez and H.S. saw flashing lights and believed that the police had arrived. When this occurred, Sanchez responded, \\\"Oh \\u2014 it, [t]he f \\u2014 ing cops,\\\" and instructed H.S. to tell the police that she was his girlfriend. Record at 392. Shortly thereafter, Sanchez and H.S. fell asleep.\\nDuring the early morning hours, the police arrived and found Sanchez and H.S. asleep in the bed. The gun, which Sanchez had been carrying, was positioned on the bed near Sanchez's right hand. Sanchez's other hand was positioned under H.S.'s head and neck. Sanchez was placed under arrest and charged with rape and confinement.\\nA jury trial commenced on June 15, 1999. During the trial, the jury was instructed, over Sanchez's objection, that voluntary intoxication was not a defense to the charged offenses. The jury was further instructed that it was not permitted to consider Sanchez's intoxication in determining whether he acted knowingly or intentionally. Thereafter, the jury found Sanchez guilty as charged.\\nDiscussion and Decision\\nSanchez challenges the trial court's instruction which prohibited the jury from considering evidence of voluntary intoxication. That instruction provided as follows: \\\"Voluntary intoxication is not a defense to the charge of rape and confinement. You may not take voluntary intoxication into consideration in determining whether the defendant acted knowingly or intentionally as alleged in the information.\\\" Record at 766. According to Sanchez, the instruction improperly removed consideration of his voluntary intoxication from the jury in violation of the Due Course of Law provision of Article 1, Section 12 of the Indiana Constitution.\\nThe instruction given by the trial court is based upon Ind.Code \\u00a7 35-41-2-5, which went into effect in July 1997. That statute provides that \\\"[ijntoxication is not a defense in a prosecution for an offense and may not be taken into consideration in determining the existence of a mental state that is an element of the offense unless the defendant meets the requirements of IC 35-41-3-5.\\\" I.C. \\u00a7 35^1-2-\\n5. Those requirements include becoming intoxicated without the person's consent or not knowing that the substance might cause intoxication. I.C. \\u00a7 35-41-3-5(l)(2). Sanchez does not suggest that either exception applies. Rather, he argues that our constitution, and in particular, the Due Course of Law provision, guarantees a defendant the right to present evidence of voluntary intoxication.\\nIn support of his argument, Sanchez relies on our supreme court's decision in Terry v. State, 465 N.E.2d 1085 (Ind.1984). There, the court concluded that the legislature could not prohibit a defendant from offering evidence of voluntary intoxication in his defense. At issue was a prior version of I.C. \\u00a7 35-41-3-5, which provided that voluntary intoxication was a defense only to the extent it negated an element of an offense \\\"referred to by the phrase 'with intent to' or 'with an intention to.' \\\" Id. at 1087. Relying primarily on Sills v. State, 463 N.E.2d 228 (Ind.1984) and incorporating the rationale of that opinion, our supreme court concluded that the statute violated both the state and federal constitutions because it prevented the jury from considering a factor which tended to show whether the defendant possessed the requisite mens rea. Id. at 1088. The court explained its decision as follows:\\nIn order to form intent in any event the perpetrator must be acting consciously and competently. Any situation which renders the perpetrator incapable of forming intent frees him from the responsibility of his acts.... [I]f intoxication, whether it be voluntary or involuntary, renders that individual so completely non compos men-tis that he has no ability to form intent, then under our constitution and under the firmly established principles of the mens rea required in criminal law, he cannot be held accountable for his actions, no matter how grave or how inconsequential they may be.\\nId. (quoting Sills, 463 N.E.2d at 242) (emphasis in original) (citations omitted). The court further explained:\\nAny factor which serves as a denial of the existence of mens rea must be considered by a trier of fact before a guilty finding is entered. Historically, facts such as age, mental condition, mistake or intoxication have been offered to negate the capacity to formulate intent. The attempt by the legislature to remove the factor of voluntary intoxication, except in limited situations, goes against this firmly ingrained principle.\\nId. Finally, the court concluded by stating that \\\"a defendant in Indiana can offer a defense of voluntary intoxication to any crime.\\\" Id.\\nIn 1996, the United States Supreme Court held that a state could prohibit a criminal defendant from offering evidence of voluntary intoxication to negate the requisite mens rea without violating the Due Process Clause of the Fourteenth Amendment. Montana v. Egelhoff, 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996). In that case, the defendant was charged with purposely or knowingly causing the death of another. During trial, the jury was instructed under Minnesota law that it could not consider the defendant's intoxicated condition in determining whether he acted with the requisite intent. Id. at 41, 116 S.Ct. 2013. In determining whether the statute violated the Due Process Clause, the Court initially noted that the right to introduce relevant evidence is not absolute and that a state is permitted to restrict certain evidence under its rules of evidence. Id. at 42-43, 116 S.Ct. 2013. The Court then set forth the following analysis to determine whether the statute violated the Due Process Clause:\\n\\\"Preventing and dealing with crime is much more the business of the States than it is of the Federal Government, and . we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally 'within the power of the State to regulate procedures under which its laws are carried out,' . and its decision in this regard is not subject to proscriptions under the Due Process Clause unless 'it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' \\\"\\nId. at 43, 116 S.Ct. 2013 (quoting Patterson v. New York, 432 U.S. 197, 201-02, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)) (citations omitted). Accordingly, the Court stated that in order to find a violation of the Due Process Clause, the defendant was required to show that his right to present evidence of voluntary intoxication is a fundamental principle of justice. Id.\\nTo make that determination the Court engaged in a historical analysis of the intoxication defense and found that although \\\"by the end of the 19th century, in most American jurisdictions, intoxication could be considered in determining whether a defendant was capable of forming the specific intent necessary to commit the crime charged,\\\" at early common law, evidence of intoxication was emphatically disallowed. Id. at 46-47, 116 S.Ct. 2013. The Court concluded that because the intoxication defense had not gained \\\"sufficiently uniform and permanent allegiance, to qualify as fundamental\\\" the right to present evidence of intoxication was not protected under the Due Process Clause. Id. at 51, 56, 116 S.Ct. 2013.\\nSanchez acknowledges the United States Supreme Court's holding and concedes, as has been noted by our supreme court, that Terry is no longer good law to the extent it found that prohibiting evidence of voluntary intoxication violates the Due Process Clause. See State v. VanCleave, 674 N.E.2d 1293, 1303 n. 15 (Ind.1996) (noting that \\\"to the extent [Terry ] suggested Ind. Code \\u00a7 35-41-3-5(b) violates federal due process guarantees\\\" Terry was no longer good law in light of Montana v. Egelhoff), reh'g denied, on reh'g in part, 681 N.E.2d 181, cert. denied, \\u2014 U.S. -, 118 S.Ct. 1060, 140 L.Ed.2d 121 (1998); Horan v. State, 682 N.E.2d 502, 508 n. 5 (Ind.1997) (reiterating the comments from VanCleave but also noting that VanCleave did not further comment on \\\"the precedential value of Terry in light of Egelhoff\\\" and that therefore \\\"that question remains open\\\"), reh'g denied. See also Bassie v. State, 726 N.E.2d 242, 243 n. 1 (Ind.2000) (again recognizing that Terry had been overruled by Egelhoff with regard to federal due process claims but declining to further comment on the viability of Terry). Accordingly, Sanchez raises his claim under the Indiana Constitution and in particular the Due Course of Law provision of Article 1, Section 12. Although Terry did not refer to a specific part of the Indiana Constitution, because Sanchez appears to be arguing that it should be based upon the Due Course of Law provision, we focus our analysis on that provision to determine whether it provides greater protection than its federal counterpart.\\nWhen interpreting a provision under the Indiana Constitution, we \\\"search for the common understanding of both those who framed it and those who ratified it.\\\" Collins v. Day, 644 N.E.2d 72, 75 (Ind.1994). We examine the language of the provision in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution and the cases interpreting the provision. Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind.1996). \\\"The intent of the framers of the Constitution is paramount in determining the meaning of a provision.\\\" Eakin v. State ex rel. Capital Imp. Bd. of Managers of Marion County, 474 N.E.2d 62, 64 (Ind.1985). Thus, we examine the history of the times and the state of things when the constitution was framed and adopted. Richardson v. State, 717 N.E.2d 32, 38 (Ind.1999). The court's goal is to ascertain \\\"what the particular constitutional provision was designed to prevent.\\\" Northern Ind. Bank and Trust Co. v. State Bd. of Finance of Ind., 457 N.E.2d 527, 529 (Ind.1983).\\nInitially, we note that we were unable to locate any meaningful discussions from the convention debates or journals regarding the Due Course of Law provision itself. We were able, however, to locate discussions concerning the common law from which the intoxication defense originated and public sentiment concerning intoxicating liquors. In order to understand the full impact of those discussions, we must first examine the history of the intoxication defense. We will then turn to the specific comments made with regard to the common law and the public sentiment concerning intoxicating liquors.\\nAt early common law, intoxication was not a defense because it was considered a \\\"gross vice\\\" and a crime in itself. Egelhoff, 518 U.S. at 44-46, 116 S.Ct. 2013 (citation omitted). This viewpoint prevailed until the late 1800s. Id. at 47, 116 S.Ct. 2013. Although the emergence of the \\\"new rule\\\" allowing evidence of intoxication in specific intent crimes was first raised in an 1819 English case, that viewpoint was not embraced outright, with the majority of the states refusing to allow evidence of intoxication as a defense until the end of the 19th century. Id. at 46-47, 116 S.Ct. 2013.\\nIndiana followed the early development of the common law. Carter v. State, 408 N.E.2d 790, 797 (Ind.Ct.App.1980). It was not until 1860 that our supreme court first recognized that evidence of intoxication might be permitted for crimes involving \\\"certain grades of homicide.\\\" O'Herrin v. State, 14 Ind. 420, 1860 WL 4131 (1860). That first pronouncement, however, was dicta in that the defense was not allowed because the defendant was appealing a conviction for larceny. Id. In 1890, our supreme court specifically recognized that evidence of intoxication was admissible in a homicide prosecution to reduce a conviction from first to second degree murder. See Aszman v. State, 123 Ind. 347, 24 N.E. 123, 126-27 (1890). Eventually, in 1901, our supreme court extended that ruling to allow evidence of intoxication in all specific intent crimes. See Booher v. State, 156 Ind. 435, 60 N.E. 156, 160 (1901). With this history in mind, we now turn to the discussions regarding the common law and intoxicating liquors made during the constitutional convention.\\nAt the convention, a proposal was made to abolish the common law of England. JOURNAL OF THE CONVENTION OF THE PEOPLE of the State of Indiana to Amend the Constitution 276 (1936) [hereinafter Convention JOURNAL]. This proposal was not seriously considered, and therefore, did not pass. 1 Report of the Debates of the Convention for the Revision of the Constitution of the State of Indiana 722-24 (1851) [hereinafter Convention Debates]. Thus, the common law was preserved. One aspect of the common law, however, was changed - the requirement of indictment by a grand jury. Under the constitution of 1816, the use of the grand jury, which originated in England, was retained. Constitution Making in Indiana 251 (1916); 1 Convention Debates at 137. Under the 1851 constitution, the legislature was given the prerogative to abolish its use. Ind. Const, art. 7, \\u00a7 17. During the debates on the abolishment of the grand jury, it was noted:\\nI am aware that the Grand Jury is a secret and ex parte tribunal, and that its origin is English, and comes from an age of despotism; but it is equally true that but two governments in the world know anything of Grand Juries . I refer to England and the United States. It is true, we long since separated ourselves from, and dissolved all connection with the British Crown; but it is equally true, that there are many valuable laws and institutions which we have derived from the mother country.\\n1 Convention Debates at 142. The proposal to abolish the common law and the abolishment of the grand jury, as well as the comments made in relation thereto, are important for several reasons.\\nFirst, the comment recognizing the \\\"many valuable laws and institutions\\\" from England shows that the drafters were well acquainted with the common law of England and considered it sound with regard to many areas of the law. Thus, it is reasonable to assume that the drafters in 1851 were familiar with the early common law rule prohibiting use of intoxication as a defense. Second, the decision to abolish the grand jury shows that the drafters knew how to change parts of the common law with which they did not approve. Had they disapproved of the early common law rule prohibiting evidence of voluntary intoxication, a proposal to change that law could have been made. Finally, the refusal to abolish the common law in its entirety reveals the drafters' intent to preserve those parts of the common law as they existed at the time. In particular, by failing to abolish the common law rule with regard to voluntary intoxication, they preserved the majority rule at the time which was to disallow that evidence as a defense.\\nPublic sentiment regarding intoxicating liquors at the time of the convention also aids this court in understanding the state of things existing at the time of the convention. Drunkenness was condemned as evidenced by the proposals and petitions made during the convention. For example, proposals to insert a clause in the constitution, prohibiting the legislature from \\\"passing any law permitting license for the sale of spirituous liquors\\\" were made. 2 Convention Debates at 1434; Convention Journal at 193. The purpose of the proposals was to prevent the State from benefiting in any way from the sale of liquor. See 2 Convention Debates at 1434 (desiring \\\"that the State should not receive one farthing of the profits accruing from your accursed business\\\"). The following comments were also made with regard to one of the proposals: \\\"We say to the community at large, to the philanthropist and the Christian, the field is clear, gird on your armor, harness yourselves for the contest; go forth, and if you can, with the great lever of public opinion, level to the ground every grog shop in the country.\\\" Id. Petitions to prohibit the traffic of alcoholic beverages were also presented by the citizens of Harrison and Jefferson Counties and the Indiana Conference of the Methodist Episcopal Church. Convention Journal at 123, 164, 322. In light of these petitions, comments and proposal, it is difficult to imagine that the drafters seriously considered preserving a defendant's right to present evidence of voluntary intoxication as a defense to a charged offense.\\nIt is also important to note that our state provision was enacted before the federal provision. Our constitutional provision was enacted in 1851. The Fourteenth Amendment to the United States Constitution, which contains the Due Process Clause, was not ratified by the states until 1868. U.S. Const, amend. XIV, \\u00a7 1 (West's Ind.Code Ann.). Because the federal provision was not even in existence at the time our Due Course of Law provision was enacted, the drafters could not have intended to provide protection analogous to or greater than that provided under the Due Process Clause. Recently, our supreme court pointed out that the term \\\"due process\\\" does not even appear in the Indiana Constitution. See Board of Zoning Appeals, Bloomington, Ind. v. Leisz, 702 N.E.2d 1026, 1028 (Ind.1998). Thus, it is questionable whether the Due Course of Law provision should even be considered analogous to the Due Process Clause.\\nNevertheless, numerous decisions following the enactment of the Due Course of Law provision have done so. See Kizer v. Town of Winchester, 141 Ind. 694, 40 N.E. 265, 267 (1895) (reviewing challenge to statute under Due Process Clause and Due Course of Law provision using single analysis); Vandalia R. Co. v. Stilwell, 181 Ind. 267, 104 N.E. 289, 290-91 (1914) (treating constitutional challenge under Employers' Liability Act of 1911 similarly under Due Process Clause and Due Course of Law provision), abrogated on other grounds; Wright v. House, 188 Ind. 247, 121 N.E. 433, 437 (1919) (\\\"The discussion of the 'due process of law* provision of the federal Constitution is applicable to [Article 1, Section 12] of the state Constitution.\\\"); Mack v. State, 203 Ind. 355, 180 N.E. 279, 283 (1932) (noting that the \\\"[d]ue process of law, or 'due course of law' in the courts is guaranteed by section 12, art. 1, Indiana Constitution . to 'every man, for injury done him in his person, property or reputation' \\\"); Dowd v. Harmon, 229 Ind. 254, 96 N.E.2d 902, 905 (1951) (finding no violation of due process under \\\"either the Constitution of Indiana or the Federal Constitution\\\"); State ex rel. Evansville City Coach Lines, Inc. v. Rawlings, 229 Ind. 552, 99 N.E.2d 597, 604 (1951) (treating procedural due process claims under the Fourteenth Amendment and Article 1, Section 12 similarly); Rader v. State, 181 Ind.App. 546, 393 N.E.2d 199, 203 (1979) (using same analysis to address claims under Due Process Clause and Due Course of Law provision); Scalf v. Berkel, Inc., 448 N.E.2d 1201, 1203 (Ind.Ct.App.1983) (finding that the Due Course of Law provision is a \\\"constitutional provision analogous to the due process clause of the Fourteenth Amendment\\\"); Wilhoite v. Melvin Simon & Associates, Inc., 640 N.E.2d 382, 387 (Ind.Ct.App.1994) (\\\"Indiana courts have construed the 'due course of law' protection of Article 1, Section 12 of the Indiana Constitution as analogous to the federal due process clause.\\\"); Shook Heavy and Envtl. Constr. Group v. City of Kokomo, 632 N.E.2d 355, 361 (Ind.1994) (analysis used under Due Process Clause of Fourteenth Amendment is applicable to Due Course of Law provision of Indiana Constitution); Haimbaugh Landscaping, Inc. v. Jegen, 653 N.E .2d 95, 104-05 (Ind.Ct.App.1995) (stating that the Indiana Due Course of Law provision of Article 1, Section 12 is analogous to Due Process Clause of Fourteenth Amendment), reh'g denied, trans. denied; Indiana High Sch. Athletic Ass'n, Inc. v. Carlberg, 694 N.E.2d 222, 241 (Ind.1997) (same analysis is applicable to claims brought under Due Process Clause of United States Constitution and Due Course of Law provision of Indiana Constitution), reh'g denied; Reynolds v. State, 698 N.E.2d 390, 392 (Ind.Ct.App.1998) (\\\"Both the Due Process Clause of the United States Constitution and the Due Course of Law provision of the Indiana Constitution prohibit state action which deprives an individual of life, liberty or property without due process.\\\"), trans. denied; Martin v. Richey, 711 N.E.2d 1273, 1283 n. 10 (Ind.1999) (\\\"Indiana jurisprudence also includes another line of cases which focus on the phrase 'due course of law,' and have construed this phrase as affording procedural rights analogous to those afforded by the Due Process Clause of the Fourteenth Amendment of the United States Constitution.\\\").\\nHaving noted the long line of cases treating the provisions similarly, we also recognize some cautionary language set forth by Justice Dickson in a dissenting opinion in Carlberg. In that case, Justice Dickson noted that although the court in Shook seemingly extended federal due process analysis to Article 1, Section 12 claims, the analysis should not necessarily be treated as coextensive with federal due process jurisprudence. Carlberg, 694 N.E.2d at 247. This statement was indeed prophetic, as most recently a plurality of our supreme court attempted to set forth the similarities and differences between the federal Due Process Clause and Article 1, Section 12 and seemingly rejected the long line of cases which had treated the two provisions similarly in all cases. See McIntosh v. Melroe Co. (2000), 729 N.E.2d 972, 974-975, 975-976. In particular, the plurality drew lines with regard to procedural and substantive claims brought in civil and criminal cases. With regard to criminal cases, the plurality seemed to indicate, in dicta, that procedural claims should be raised, not under Article 1, Section 12, but under other provisions of the state constitution and that substantive due course of law claims would be \\\"analogous to federal substantive due process.\\\" McIntosh, 729 N.E.2d at 976. Despite these broad pronouncements, the plurality still recognized, without approval or disapproval, that there have been numerous criminal claims raised under Article 1, Section 12 under the guise of \\\"due process.\\\" McIntosh, 729 N.E.2d at 976 n. 2. Although it is not entirely clear what remains of due course of law claims raised in criminal cases, there still is no indication that Article 1, Section 12 or, in particular the Due Course of Law provision, provides greater protection or a different analysis than the federal Due Process Clause with regard to the claim Sanchez brings. Further, we are unable to find anything in our history at the time of the convention which suggests a different analysis should be applied under the Due Course of Law provision. Moreover, Sanchez does not suggest what that analysis might be. Rather, he argues only for a different result because of other state constitutional provisions.\\nDeveloping a constitutional argument under the Indiana Constitution requires an explanation as to how the state provision should be analyzed apart from the federal provision, not just that the result should be different. Absent argument or authority demonstrating a different analysis, this court will apply the federal analysis. See Rynerson v. City of Franklin, 669 N.E.2d 964, 966 n. 1 (Ind.1996) (where defendant fails to provide argument or authority that analysis under Due Course of Law Provision is different than analysis used under Due Process Clause, issue will be analyzed under Due Process Clause).\\nHere, the analysis used by the United States Supreme Court to determine whether prohibiting evidence of voluntary intoxication violated the Due Process Clause is whether prohibiting the evidence offends a principle of justice so rooted in the traditions and conscience of our people so as to be ranked fundamental. Sanchez's duty on appeal, therefore, was not only to explain why the Due Course of Law provision requires a different result but to set forth a different analysis. As Sanchez has failed to do so, and we are not convinced that a separate analysis exists, we apply the analysis used by the Egelhoff court and conclude that precluding such evidence does not violate the Due Course of Law provision.\\nIn light of the U.S. Supreme Court's analysis in Egelhoff and our state's reliance on the early common law, we are constrained to disagree with the Terry court statement that allowing evidence of intoxication is a \\\"firmly ingrained principle.\\\" Further, as subsequent Indiana case law has applied federal due process jurisprudence to analyze Indiana Due Course of Law claims, we can conclude only that Terry is also no longer good law with regard to its holding under the Indiana Constitution in light of Montana v. Egelhoff, 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996). Thus, the current version o\\u00ed I.C. \\u00a7 35^41-3-5 does not violate the Due Course of Law provision of the Indiana Constitution. As a result, the trial court did not err by instructing the jury that it could not consider evidence of Sanchez's intoxication in determining whether he acted with the requisite intent. While we recognize that there may well be sound reasons based in justice and fair play to permit evidence of voluntary intoxication, as set forth in our 1851 Constitution, the Due Course of Law provision does not preserve that right.\\nFinally, even if the state constitutional right to present evidence of voluntary intoxication is still viable under the Due Course of Law provision or otherwise, the trial court's decision to disallow the jury from considering evidence of voluntary intoxication is harmless error. In Terry, after concluding that evidence of voluntary intoxication could be offered as a defense to any crime, the court provided the following comments concerning the limitations of the intoxication defense:\\nThe potential of this defense should not be confused with the reality of the situation. It is difficult to envision a finding of not guilty by reason of intoxication when the acts committed require a significant degree of physical or intellectual skills. As a general proposition, a defendant should not be relieved of responsibility when he was able to devise a plan, operate equipment, instruct the behavior of others or carry out acts requiring physical skill.\\nTerry, 465 N.E.2d at 1088. Applying that proposition, the court concluded that although there' was evidence that the defendant had been drinking, there was also evidence that he drove a car, directed other people and made decisions to follow a course of action. Thus, the court concluded that the trial court did not err by refusing the defendant's tendered instruction on voluntary intoxication \\\"as no reasonable doubt existed that the appellant had the intent to commit the act for which he was charged.\\\" Id.\\nThus, an adequate evidentiary basis for an intoxication instruction exists only if the evidence could create a reasonable doubt in the jury's mind that the accused had the intent to commit the charged offense. Gibson v. State, 516 N.E.2d 31, 32 (Ind.1987). The degree of intoxication is immaterial as long as the defendant was able to form the requisite intent. Id. at 33. Therefore, even if a defective instruction is given, if the evidence does not support an instruction on voluntary intoxication, there can be no error. See Horan v. State, 682 N.E.2d 502, 509 (Ind.1997) (finding that defendant was not entitled to instruction on voluntary intoxication where defendant devised plans, operated equipment, instructed others and carried out acts requiring physical skill, and therefore, giving defective instruction could not result in error), reh'g denied; Babbs v. State, 621 N.E.2d 326, 330 (Ind.Ct.App.1993) (concluding that there was no error in giving instruction where defendant was not entitled to instruction on voluntary intoxication as evidence revealed drinking did not impair defendant's ability to obtain rope, tie up victim, commit the robbery in a secluded area of the store, search for money, warn his accomplice when the police arrived and escape, and recall events at trial), trans. denied.\\nHere, the evidence of voluntary intoxication could not create a reasonable doubt in the jury's mind that Sanchez had the intent to commit the charged offense, despite the fact he may have consumed large amounts of alcohol. Sanchez was able to hold four people at gunpoint while inquiring as to the whereabouts of one of the girls who attended the party. Prior to taking H.S. hostage, he had the wherewithal to take both phones so no one could call for help. He led his victim to a secluded place, away from detection, to carry out the rapes. He had the physical ability to rape H.S. several times in different positions. After the rapes occurred, he was able to lead his victim out of the cornfield and to his home which was three and a half miles away. While walking, he avoided detection by hiding from approaching cars. Sanchez also had the capacity to know that H.S. was attempting to escape as they neared his house. Three to four hours after he abducted H.S., he still had the ability to rape H.S. again. When San chez thought that the police had detected him, he made statements which revealed that he knew what he was doing and was able to devise a story to avoid arrest. Finally, before they fell asleep, he had the foresight to place the gun near his right hand and his left hand under the victim's head to prevent her from escaping. Under these circumstances, there is no doubt that the alcohol did not impair Sanchez's ability to think and function, regardless of Sanchez's state of consciousness following his arrest. As Sanchez was not entitled to a jury instruction on voluntary intoxication, any instruction given could not have amounted to error.\\nJudgment affirmed.\\nDARDEN, J., and FRIEDLANDER, J., concur.\\n. Ind.Code \\u00a7 35-42-4-1.\\n. Ind.Code \\u00a7 35-42-3-3(1).\\n. The majority opinion was written by Justice Scalia with whom Chief Justice Rehnquist, Justice Kennedy and Justice Thomas concurred. Justice Ginsburg concurred in the judgment with separate opinion.\\n. See Reply Brief at 3 (\\\"[W]hile both federal and state analyses may be the same . the result under the state constitution is different because the Indiana Constitution grants procedural rights different from those provided by the federal bill of rights.\\\").\\n. Specifically, Sanchez argues that the Due Course of Law provision, when read together with Article 1, Section 13, which guarantees a defendant the right to be heard by himself and counsel, Article 1, Section 19, which gives the jury the right to determine law and facts, and Article 1, Section 23, which prohibits the legislature from granting to any class of citizens privileges or immunities which do not equally belong to all citizens, guarantees a defendant the right to present evidence of voluntary intoxication.\"}"

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+"{\"id\": \"11197991\", \"name\": \"Joshua E. SPEARS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below)\", \"name_abbreviation\": \"Spears v. State\", \"decision_date\": \"2000-10-06\", \"docket_number\": \"No. 49S00-9908-CR-430\", \"first_page\": \"1161\", \"last_page\": \"1169\", \"citations\": \"735 N.E.2d 1161\", \"volume\": \"735\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T17:25:27.286784+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.\", \"parties\": \"Joshua E. SPEARS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).\", \"head_matter\": \"Joshua E. SPEARS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).\\nNo. 49S00-9908-CR-430.\\nSupreme Court of Indiana.\\nOct. 6, 2000.\\nKathleen M. Sweeney, Indianapolis, Indiana, Attorney for Appellant.\\nKaren Freeman-Wilson, Attorney General of Indiana, Eileen Euzen, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.\", \"word_count\": \"3331\", \"char_count\": \"20334\", \"text\": \"BOEHM, Justice.\\nJoshua E. Spears was convicted of murder, felony murder, conspiracy to commit robbery, and robbery as a Class A felony. The trial court merged the felony murder and the murder convictions and the conspiracy to commit robbery and the robbery convictions, and sentenced Spears to sixty-five years for murder to be served consecutively with fifty years for robbery. In this direct appeal, Spears contends that (1) the Indiana Double Jeopardy Clause requires that his Class A felony robbery conviction be reduced to a Class C felony, and (2) the trial court found an improper aggravating circumstance, failed to find significant mitigating circumstances supported by the record, and imposed a manifestly unreasonable sentence. We remand to the trial court with instructions to reduce the robbery conviction to a Class C felony and otherwise affirm the judgment of the trial court.\\nFactual and Procedural Background\\nIn August of 1998, Jeremy Gross was an employee of the Convenient Food Mart in Indianapolis. Gross planned to rob the store and invited Spears and James Learned to join him. Learned declined, but at approximately 2:40 a.m. on August 26, Spears and Gross approached the Convenient Mart where Christopher Beers was the sole employee on duty. The doors of the store were locked from 12:00 a.m. to 6:00 a.m., but Beers could allow people to enter by \\\"buzzing\\\" them in. Immediately after Beers allowed Gross and Spears to enter, Gross, who was following Spears, raised a handgun, shot Beers in the abdomen, and continued shooting at the fallen clerk as he walked behind the counter. Spears initially stood beside Gross when he opened fire but then ran to the video recorder serving four surveillance cameras. When the eject button did not work, Spears took the entire VCR. Spears and Gross then grabbed $650 from the cash register, disabled the two telephones in the building, and fled. Beers followed outside and attempted to use the payphone. He managed to take the phone off the hook, but then collapsed on the sidewalk, where he died of multiple gunshot wounds.\\nSpears and Gross disposed of the VCR and gun in a nearby pond. They then went to Learned's trailer to count their money. Witnesses, including a passing motorist, led police to Gross, who later confessed and implicated Spears. Spears was charged with murder, felony murder, conspiracy to commit robbery, and robbery as a Class A felony. A jury found him guilty of all counts. The trial court merged the felony murder and murder convictions, also merged the conspiracy to commit robbery and robbery convictions, and then sentenced Spears to sixty-five years for murder and fifty years for robbery, to be served consecutively.\\nI. Double Jeopardy\\nSpears contends that his dual convictions for murder and robbery as a Class A felony violate the Indiana Double Jeopardy Clause. He bases his claim on the \\\"actual evidence test\\\" enunciated by this Court in Richardson v. State, 717 N.E.2d 32 (Ind.1999). The Indiana Double Jeopardy Clause prohibits multiple convictions if there is \\\"a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.\\\" Richardson, 717 N.E.2d at 53; accord Wise v. State, 719 N.E.2d 1192, 1201 (Ind.1999). Serious bodily injury differentiates the Class A felony from robbery as a Class C felony. Ind.Code \\u00a7 35-42-5-1 (1998). Where a robbery conviction is elevated to a Class A felony based on the same serious bodily injury that forms the basis of a murder conviction, the two cannot stand. Logan v. State, 729 N.E.2d 125, 136-37 (Ind.2000); Lowrimore v. State, 728 N.E.2d 860, 868-69 (Ind.2000); Chapman v. State, 719 N.E.2d 1232, 1234 (Ind.1999); Hampton v. State, 719 N.E.2d 803, 808-09 (Ind.1999).\\nHere, the jury was instructed that to find Spears guilty of robbery as a Class A felony the State had to prove that he knowingly took property from another person by putting that person in fear or using .or threatening the use of force and that serious bodily injury resulted to the other person. The State argues that Spears' claimed violation of the actual evidence test should fail because \\\"the jury could have reasonably applied different evidence to support each offense.\\\" Specifically, the State points to the fact that Gross fired several shots at Beers. However, the charging information, which was read to the jury as part of the instructions, alleged that the serious bodily injury was the \\\"death\\\" of Christopher Beers. Moreover, no other serious bodily injury was asserted as a basis for the elevation of the robbery during closing argument. Under these circumstances there is at least a reasonable possibility \\u2014 if not a near certainty\\u2014 that the same evidence used by the jury to establish the essential elements of murder was also included among the evidence establishing an essential element of robbery as a Class A felony. The fact that more than one shot was fired does not alter this conclusion. Absent a specific instruction requiring the jury to base a Class A felony robbery conviction on a serious bodily injury other than death, there is a reasonable possibility that the jury used the same evidentiary facts to support a murder conviction and a Class A robbery conviction. Accordingly, the robbery conviction must be reduced to a Class C felony.\\nThe State argues that the Indiana Double Jeopardy claim should fail for a number of novel reasons, none of which have merit. First, the State contends the state constitutional argument is waived because Spears \\\"failed to make any separate analysis based on the state constitution and failed to provide an analysis of the 'statutory elements' component in Richardson.\\\" Spears cited the applicable provision of the Indiana Constitution \\u2014 Article I, Section 14 \\u2014 and this Court's landmark opinion in Richardson interpreting that provision. Spears noted that the \\\"actual evidence\\\" test set forth in Richardson and a comparison of the statutory elements were alternative means of reviewing a state constitutional double jeopardy claim. He presented a cogent argument citing cases that have applied the \\\"actual evidence\\\" test. There was no need to provide any analysis of the alternative ground based on the statutes alone. Spears' dual convictions do not violate the statutory elements test, and Spears made no such claim. His contention based on the actual evidence test was argued and preserved.\\nNext, the State contends that this case should be remanded to the trial court \\\"for the trial court's ruling on whether the two crimes are the same for double jeopardy purposes.\\\" The State contends that this \\\"intensely factual determination\\\" is best made by the trial court, then reviewed by this Court for an abuse of discretion. It is true that a determination of the \\\"reasonable possibility\\\" component of the Richardson test turns on an analysis of the evidence. The instructions and the arguments of counsel are also relevant to that determination. Although we have not expressly ruled on the standard of review in double jeopardy cases, we have frequently treated reasonable possibility as a matter of law for de novo review by the appellate courts. See, e.g., Burnett v. State, 736 N.E.2d 259, 262-63 (Ind.2000); Cutter v. State, 725 N.E.2d 401, 410 (Ind. 2000). The State points out that we have deferred to trial courts' findings as to the existence vel non of a \\\"serious evidentiary dispute\\\" for the purpose of instructions on lesser included offenses. See Brown v. State, 703 N.E.2d 1010, 1019 (Ind.1998). Here, we have no finding by the trial court. Even if we were to adopt a standard of review analogous to that applied to the instruction issue, de novo review is appropriate where the trial court made no finding. Cf id.\\nFinally, the State argues that, should this Court find a double jeopardy violation, the proper remedy is remand for a retrial on the robbery count. The State cites no double jeopardy precedent for this result, nor do we find any. To the contrary, both before and after Richardson, the remedy for double jeopardy violations has routinely been to reduce or vacate one of the convictions. Turnley v. State, 725 N.E.2d 87, 91 (Ind.2000); Cutter, 725 N.E.2d at 410, State's pet. for reh'g denied ; Wise, 719 N.E.2d at 1201; Richardson, 717 N.E.2d at 55; Bunch v. State, 697 N.E.2d 1255, 1257 (Ind.1998). The State was given one opportunity to try Spears on the charges it' selected, the evidence it presented, and the closing argument it chose to make. It is not entitled to a second bite of the apple.\\nII. Sentencing\\nSpears attacks the trial court's findings of aggravating and mitigating circumstances in its sentencing statement. He also contends that the aggregate sentence is manifestly unreasonable.\\nA. Sentencing Statement\\nThe trial court found four aggravating circumstances, no mitigating circumstances, and imposed maximum, consecutive sentences. The trial court found the following aggravating circumstances: (1) a prior history of juvenile delinquency, (2) prior attempts at rehabilitation had failed, (3) Spears' involvement with street gangs, and (4) \\\"the facts of this particular case.\\\" The trial court further explained that the last of these was based on (1) \\\"the degree of planning that was involved before the commission of the crime,\\\" (2) the crime being \\\"an absolute brutal execution of Chris Beers and that it was done in connection with a Robbery,\\\" and (3) \\\"the substantial steps [that] were taken to conceal the involvement of this crime.\\\" Spears contends that the trial court erred in finding the facts of the crime to be an aggravating circumstance and in failing to find any mitigating circumstances.\\nWhen a trial court relies on aggravating or mitigating circumstances to deviate from the presumptive sentence, it is required to (1) identify all of the significant mitigating and aggravating circumstances, (2) state the specific reason why each circumstance is considered to be mitigating or aggravating, and (3) articulate the court's evaluation and balancing of the circumstances to determine if the mitigating circumstances offset the aggravating ones. Carter v. State, 711 N.E.2d 835, 837-38 (Ind.1999) (citing Hammons v. State, 493 N.E.2d 1250, 1254 (Ind.1986)). The same aggravating circumstance or circumstances may be used to both enhance a sentence and order sentences to be served consecutively. Taylor v. State, 710 N.E.2d 921, 925 (Ind.1999); Brown v. State, 698 N.E.2d 779, 781 (Ind.1998).\\n1. Improper Aggravating stances Circum-\\nSpears is correct that a trial court may not use a factor constituting a material element of an offense as an aggravating circumstance. Angleton v. State, 714 N.E.2d 156, 160 (Ind.1999). To the extent that the trial court relied on the planning in the parking lot, an essential element of the conspiracy conviction, to aggravate Spears' conspiracy sentence, it erred. However, the trial court did not err in finding that the fact that the killing occurred \\\"in connection with a Robbery\\\" was an aggravating circumstance. Cf. Workman v. State, 716 N.E.2d 445, 448-49 (Ind.1999) (enhancement of a murder sentence based in part on abuse of the corpse was proper). Spears contends that the \\\"in connection with a Robbery\\\" factor was the basis for the felony murder charge, but the trial court did not enter judgment of conviction as to the felony murder count. Moreover, the trial court's finding of the facts of the crime as an aggravating circumstance was also based on the fact that the killing was in the form of an \\\"absolute brutal execution.\\\" This is a permissible aggravating circumstance. The substantial post-crime steps to conceal the crime are also matters the trial court could find to be an aggravating circumstance. Although Spears contends there is no evidence that \\\"definitively proves\\\" that he removed telephone wires, it was within the trial court's discretion to draw this reasonable inference based on the evidence presented at trial. Noojin v. State, 730 N.E.2d 672, 678-79 (Ind.2000). In sum, although some components of the nature and circumstances of the offense aggravator were improper, \\\"[t]he remaining components of that aggravator were proper, and a single aggravating circumstance may be sufficient to enhance a sentence.\\\" Angleton, 714 N.E.2d at 160.\\n2. Failure to Find Mitigating Circumstances\\nThe finding of mitigating circumstances lies within the trial court's discretion. Hackett v. State, 716 N.E.2d 1273, 1277 (Ind.1999). The trial court is not obligated to find a circumstance to be mitigating merely because it is advanced by the defendant. Id. Rather, on appeal, a defendant must show that the proffered mitigating circumstance is both significant and clearly supported by the record. Carter, 711 N.E.2d at 838, If the defendant does not advance a factor to be mitigating at sentencing, this Court will presume that the factor is not significant and the defendant is precluded from advancing it as a mitigating circumstance for the first time on appeal. Cf. id. (\\\"Trial counsel did not view either factor as significant enough to warrant any mention at either sentencing hearing.\\\"); see generally Wurster v. State, 715 N.E.2d 341, 347-48 (Ind.1999) (a party may not assert one ground at trial and a different ground on appeal).\\nThe only two mitigating factors raised on appeal that were also argued to be mitigating by Spears at sentencing were his youthful age \\u2014 eighteen\\u2014and his expression of remorse. The trial court did not abuse its discretion in concluding that neither of these was a significant mitigating circumstance. As this Court recently observed in Sensback v. State, 720 N.E.2d 1160, 1164 (Ind.1999), an eighteen-year-old defendant is \\\"beyond the age at which the law commands special treatment by virtue of youth.\\\"\\nAdditionally, Spears stated at sentencing:\\nI'd like to express how very sorry I am for the horrible crime I was involved in on the early morning of August 26th, 1998, and for the terrible loss of Christopher Beers. I would also like to say that my intentions that night was to get a fountain drink, not to rob the Convenient or to wish neither Christopher Beers nor anyone else be killed.\\nThe trial court, who had heard all the witnesses testify at trial, was not convinced. It responded,\\nI'm sure that this soda fountain story is something maybe you've convinced yourself of in order to live with what you've done.... But as far as whether that story defies logic, sir, you're asking the Jury and -the Court to have the logic of somebody that just flew into town on the noon balloon, and we didn't.\\nAlthough Spears expressed sympathy for the victims of his crimes, in the same breath he disclaimed responsibility despite substantial evidence to the contrary. Spears' statement is very similar to that of the defendant in Bonds v. State, 721 N.E.2d 1238, 1243 (Ind.1999), who apologized to the decedent's family and then said he\\nwas just in the wrong place at the wrong time because I didn't \\u2014 I didn't tell nobody; I didn't pay nobody. I was just going to talk to the guy about getting my mother's car back. I'm sorry about what all happened. I just don't know what went wrong.\\nWe held in Bonds that this statement did not qualify as a significant mitigating circumstance that the trial court was required to take into account. Id. The same is true of Spears' equivocal apology coupled with a disclaimer of accountability for his role in the crime.\\nB. Manifestly Unreasonable\\nAs a final point, Spears contends that his maximum, consecutive sentences for murder and robbery are manifestly unreasonable. Although this Court has the constitutional authority to review and revise sentences, Ind. Const, art. VII, \\u00a7 4, it will not do so unless the sentence imposed is \\\"manifestly unreasonable in light of the nature of the offense and the character of the offender.\\\" Ind. Appellate Rule 17(B). This review is very deferential to the trial court: \\\"[T]he issue is not whether in our judgment the sentence is unreasonable, but whether it is clearly, plainly, and obviously so.\\\" Bunch v. State, 697 N.E.2d 1255, 1258 (Ind.1998) (quoting Prowell v. State, 687 N.E.2d 563, 568 (Ind. 1997)); accord Brown v. State, 698 N.E.2d 779, 783-84 (Ind.1998).\\nSpears was eighteen at the time of the offense and his criminal record consisted of two juvenile delinquency adjudications: disorderly conduct in 1995 and misdemeanor battery in 1996. The nature of the offense \\u2014 entering a convenience store to rob and kill the cashier \\u2014 is severe and troubling. Although Spears points to his \\\"lesser role in the offenses,\\\" the surveillance video and witness testimony strongly suggest that Spears was not an unwitting participant in a robbery in which Gross harbored an intent to kill unbeknownst to Spears. The trial court was within its discretion in so concluding. In cases in which a defendant had a limited role in a murder, coupled with other mitigating circumstances, this Court has, on occasion, found the maximum sentence to be manifestly unreasonable. E.g., Baxter v. State, 727 N.E.2d 429, 436 (Ind.2000) (noting the defendant's \\\"limited involvement\\\" in a murder as the one who drove a car from which another man shot the victim); Brown v. State, 720 N.E.2d 1157, 1160 (Ind.1999) (noting defendant's \\\"role as a follower\\\" of a codefendant twice his age); Widener v. State, 659 N.E.2d 529, 534 (Ind.1995) (observing that defendant who participated in a murder and robbery did not formulate or initiate the planned offenses). That is not the case here, however. To gain entry to the convenience store, Spears blocked the victim's view of Gross, who was carrying a gun. He stood beside Gross when the first shot was fired, and ran immediately to the store surveillance system. The maximum sentence of seventy-three years is not manifestly unreasonable for these offenses and this offender.\\nConclusion\\nThis case is remanded to the trial court with instructions to reduce the robbery conviction to a Class C felony and impose a sentence of eight years on that count to be served consecutively with the previously imposed sentence of sixty-five years for murder.\\nSHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.\\n. Gross was charged with the same offenses and tried separately.\\n. Although the State contends that the Class A felony robbery conviction does not violate the actual evidence test, it does not dispute that, if there is a violation, the proper remedy is reduction to a Class C felony. As this Court explained in Hampton, robbery as a Class B felony (for the use of a deadly weapon) is not necessarily a lesser included offense of robbery as a Class A felony. 719 N.E.2d at 809 n. 1. That is true here where the instructions to the jury gave the elements of robbery as a Class C felony and further stated that the charge could be enhanced to a Class A felony if the State proved beyond a reasonable doubt that Spears caused serious bodily injury to the victim. There was no instruction on the use of a deadly weapon, and thus reduction to a Class C felony is the proper remedy.\\n. The State also contends that Spears waived this Court's review of any federal double jeopardy claim by failing to cite the applicable provision of the United States Constitution and failing to provide any authority in support. As Spears notes in his reply brief, he did not raise a federal double jeopardy claim. Thus, the State is incorrect that the claim is waived; it was never raised.\\n. The trial court imposed the maximum sentence of 115 years, but as explained in Part I, the Class A felony robbery conviction must be reduced to a Class C felony. There is no need to remand for resentencing where it is sufficiently clear that the trial court would impose the maximum sentence for the Class C felony and order it served consecutively. Cutter v. State, 725 N.E.2d 401, 409 n. 3 (Ind.2000).\"}"

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+"{\"id\": \"11685419\", \"name\": \"STATE of Indiana and the Speedway Police Department, Appellants-Petitioners, v. Thomas PERSON, Appellee-Respondent\", \"name_abbreviation\": \"State v. Person\", \"decision_date\": \"1998-09-25\", \"docket_number\": \"No. 49A02-9711-CV-793\", \"first_page\": \"783\", \"last_page\": \"786\", \"citations\": \"699 N.E.2d 783\", \"volume\": \"699\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T18:19:54.510564+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHARPNACK, C.J., and GARRARD, J\\u201e concur.\", \"parties\": \"STATE of Indiana and the Speedway Police Department, Appellants-Petitioners, v. Thomas PERSON, Appellee-Respondent.\", \"head_matter\": \"STATE of Indiana and the Speedway Police Department, Appellants-Petitioners, v. Thomas PERSON, Appellee-Respondent.\\nNo. 49A02-9711-CV-793.\\nCourt of Appeals of Indiana.\\nSept. 25, 1998.\\nJeffrey A. Modisett, Attorney General, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, for Appellants-Petitioners.\\nBryan L. Cook, Indianapolis, for Appellee-Respondent.\", \"word_count\": \"1990\", \"char_count\": \"12656\", \"text\": \"OPINION\\nSTATON, Judge.\\nThe State of Indiana and the Speedway Police Department (\\\"the State\\\") appeal an order requiring them to pay attorney's fees incurred by Thomas Person in a civil forfeiture proceeding. The dispositive issue presented is whether, following an unsuccessful civil forfeiture action, the trial court had the authority to assess attorney's fees against the State under Indiana's General Recovery Rule.\\nWe reverse.\\nThis case arose when, on October 30, 1996, Speedway Police Officer James Hornaday stopped Person for speeding. An examination of Person's driving record revealed that his license had been suspended, and Officer Hornaday arrested Person. While conducting a search incident to the arrest, the officer discovered that Person was carrying two pagers and $2,929.00 in United States currency. A second Speedway police officer testified that Person admitted he had obtained the money from a \\\"pea-shake house,\\\" apparently a gambling establishment.\\nOn December 31, 1996, the State filed a complaint seeking forfeiture of the $2,929.00. At trial, Person explained he was carrying the cash from two payroll checks totaling approximately $1,300.00 and taking it \\\"downtown\\\" to settle a disagreement about a child support arrearage. Person did not explain the source of the other funds but testified his reported 1996 gross income was $12,689.86. The trial court ruled in favor of Person, stating:\\nThe evidence I heard from that police officer was that the defendant said he got the money in a pea-shake house. There's no testimony he got it gambling, stealing it, selling drugs or any illegal activity. Being in a pea-shake house is not sufficient.\\nRecord at 128. The court then ordered the $2,929.00 released to Person.\\nOn June 30, 1997, Person filed his unverified Motion to Tax Attorney's Fees against the State pursuant to Indiana's General Recovery Rule which reads in part:\\nIn any civil action, the court may award attorney's fees as part of the cost to the prevailing party, if it finds that either party:\\n(1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless;\\n(2) continued to litigate the action or defense after the party's claim or defense clearly became frivolous, unreasonable, or groundless; or\\n(3) litigated the action in bad faith.\\nInd.Code \\u00a7 34-l-32-l(b) (1993), recodified at Ind.Code \\u00a7 34-52-l-l(b) (Supp.1998). Without entering findings, the trial court ordered the State to pay Person $1,000.00 for reasonable attorney fees. After its motion to reconsider was denied, the State initiated this appeal, claiming it is immune from payment of the attorney's fees.\\nThe Indiana Supreme Court has considered the assessment of costs against the State of Indiana pursuant to Indiana Appellate Rule 15(G) due to \\\"demonstrated bad faith.\\\" State v. Denny, 273 Ind. 556, 406 N.E.2d 240 (1980). Holding the assessment impermissible, the Denny court quoted Ind. Code \\u00a7 34-4-16.5-4 of the Indiana Tort Claims Act, which provided, \\\"A governmental entity is not liable for punitive damages,\\\" and then reasoned, \\\"[s]uch Act should be considered as a statement of public policy by the legislature that the State is not to be considered as being liable for punitive damages in cases such as this.\\\" Id. at 557, 406 N.E.2d at 241. The court further rationalized, \\\"The concept of the State not having a state of mind or not being deterred by punitive damages should be the basis for the prohibition of such punitive damages in all cases applicable to the State.\\\" Id.\\nDenny did not involve an award of attorney's fees per se. However, our court relied upon the policy advanced in that case to disallow awards of punitive attorney's fees when assessed against the State of Indiana and its agencies. See, e.g., Indiana State Highway Comm'n v. Curtis, 695 N.E.2d 143 (Ind.Ct.App.1998) (reversed assessment of attorney's fees against the State of Indiana and the Indiana State Highway Commission for the costs of bringing suit to enforce a settlement agreement), trans. pending; State v. Carter, 658 N.E.2d 618 (Ind.Ct.App.1995) (reversed assessment of mediation costs and attorney's fees against the State of Indiana for fading to mediate a personal injury claim in good faith); State v. Hicks, 465 N.E.2d 1146 (Ind.Ct.App.1984) (reversed award of attorney's fees and costs against the State of Indiana for its employees' \\\"obdurate behavior\\\"); State v. Ziliak, 464 N.E.2d 929 (Ind.Ct.App.1984) (reversed determination that State of Indiana was liable for treble damages, attorney's fees and costs under Ind. Code \\u00a7 34-4-30-1, a statute enacted to provide civil remedies to crime victims), reh. denied, trans. denied.\\nIn a recent case, a nursing home characterized the Indiana Family and Social Services Administration's refusal to award Medicaid benefits while mandating the nursing home to provide care for a patient as unreasonable, groundless and in bad faith. Family and Social Servs. Admin, v. Calvert, 672 N.E.2d 488 (Ind.Ct.App.1996), trans. denied. The nursing home requested attorney's fees pursuant to Appellate Rule 15(G) and Ind. Code \\u00a7 34-1-32-1, the same statute under which Person now seeks to recover fees. In refusing the nursing home's request, the court observed that trial courts award attorney's fees to punish alleged oppressive conduct and to prevent further misconduct; however, public policy dictates that the bad faith exception is inapplicable against a State entity. Id. at 495. The court embraced the rationale that the State entity does not have a mind that can be deterred by an award of punitive damages and that the citizen taxpayers would bear the burden of such an award. Id.\\nPerson urges that we deviate from this well-settled policy and permit the recovery of attorney's fees from the State in the unique context of an unsuccessful civil forfeiture proceeding. He argues that, because police departments raise millions of dollars each year in seized property, public funds need not be used to pay attorney's fees awarded to innocent citizens. Person further maintains that \\\"[pjublie policy mandates that citizens not be subjected to harassing and expensive litigation brought by police and prosecutors who are blinded by the 'gold fever' of prospective forfeiture.\\\"\\nThe judiciary has acknowledged the broad new powers granted to law enforcement authorities under modern forfeiture statutes. See United States v. Ursery, 518 U.S. 267, 300, 116 S.Ct. 2135, 2153, 135 L.Ed.2d 549, 576 (1996) (Stevens, J., concurring in part and dissenting in part) (\\\"In recent years, both Congress and the state legislatures have armed their law enforcement authorities with new powers to forfeit property that vastly exceed their traditional tools.\\\"); see also Katner v. State, 655 N.E.2d 345, 347 (Ind.1995) (under the current forfeiture statutes the State may seize \\\"a broad range of personal assets and real property\\\") (quoting Caudill v. State, 613 N.E.2d 433, 435 (Ind.Ct.App.1993)). The government's financial stake in these forfeiture proceedings is also evident. See United States v. James Daniel Good Real Property, 510 U.S. 43, 56 n. 2, 114 S.Ct. 492, 502 n. 2, 126 L.Ed.2d 490, 504-05 n. 2 (1993) (1990 memo from Attorney General urging United States Attorneys to increase the number of forfeitures in order to meet the Department of Justice's targeted annual budget); Caudill v. State, 613 N.E.2d 433, 436 (Ind.Ct.App.1993) (action for forfeiture is a \\\"relatively quick procedure and broad in scope. It can also be highly profitable for the State.\\\").\\nWe agree that \\\"it makes sense to scrutinize governmental action more closely when the State stands to benefit.\\\" Harmelin v. Michigan, 501 U.S. 957, 979 n. 9, 111 S.Ct. 2680, 2693 n. 9,115 L.Ed.2d 836, 854 n. 9 (1991) (Sealia, J., joined by Rehnquist, C.J.). However, there are competing public policy considerations. Illegal activities support a sizable untaxed private industry. Forfeitures do compensate the Government, but are primarily designed \\\"to confiscate property used in violation of the law, and to require disgorgement of the fruits of illegal conduct.\\\" Ursery, 518 U.S. at 284, 116 S.Ct. at 2145, 135 L.Ed.2d at 565; see also Katner, 655 N.E.2d at 347-48 (describing \\\"broad remedial characteristics\\\" of forfeiture actions). The General Assembly has balanced these competing interests when it enacted the forfeiture statutes but declined to include disincentives in the form of attorney fee assessments. Barring constitutional difficulties, that choice was within the purview of the legislature. Shook Heavy and Envtl. Const. Group v. City of Kokomo, 632 N.E.2d 355, 359 (Ind.1994). We are not persuaded that our well-established precedent immunizing these governmental entities from the assessment of punitive attorney's fees should be reversed when there is no specific statutory provision authorizing those fees.\\nPerson next insists that, even if the State of Indiana and its agencies are not subject to sanctions, the Speedway Police Department should be liable for his attorney's fees. We reject Person's argument. The Speedway Police Department is part of the Town of Speedway, a governmental unit, and was necessarily named as a party in this action because the State of Indiana was not the employer of the officers making the seizure. See supra note 1. Adoption of Person's position would leave State law enforcement agencies immune but all other police departments susceptible to the assessment of punitive fees. The reasons that compel us to find the State of Indiana should not be required to pay punitive attorney's fees also apply to the Speedway Police Department. See World Productions, Inc. v. Capital Improvement Bd. of Managers, 514 N.E.2d 634 (Ind.Ct.App.1987) (board comprised of members appointed by executive of city and county board of commissioners was entitled to immunity from punitive damages), reh. denied, trans. denied; In re Wardship of Turrin, 436 N.E.2d 130 (Ind.Ct.App.1982) (attorney's fees under the bad faith exception could not be assessed against the Department of Public Welfare of Allen County). Precedent dictates that punitive attorney's fees should not be assessed against the Speedway Police Department absent a specific legislative determination allowing such. Accordingly, we vacate the award of attorney's fees against both the State of Indiana and the Speedway Police Department.\\nReversed.\\nSHARPNACK, C.J., and GARRARD, J\\\" concur.\\n. Under the prevailing statute, a forfeiture proceeding must be brought \\\"in the name of the state or the state and the unit that employed the law enforcement officers who made the seizure if the state was not the employerf.]\\\" Ind.Code \\u00a7 34-4\\u201430.1\\u20143(a)(1) (1993), recodified at Ind.Code \\u00a7 34\\u201424\\u20141\\u20143(a)(1) (Supp.1998).\\n. App. R. 15(G) reads:\\nIf the court on appeal affirms the judgment, damages may be assessed in favor of the appel-lee not exceeding ten per cent (10%) upon the judgment, in money judgments, and in other cases in the discretion of the court; and the court shall remand such cause for execution.\\n. The identical provision is presently codified at Ind.Code\\u00a7 34-13-3-4 (Supp.1998).\\n. The statute is presently codified at Ind Code \\u00a7 34-24-3-1 (Supp.1998).\\n. In Indiana, not only does the sale of property seized defray some of the law enforcement expenses incurred, but the court may permit the law enforcement agency which seized the property to use the property for a period not to exceed three years. Ind.Code \\u00a7 34-4\\u201430.1-3 and -4 (1993), recodified at Ind.Code \\u00a7 34-24-1-3 and -4 (Supp.1998).\\n. The United States Supreme Court recently acknowledged that, for Eighth Amendment purposes, a modern statutory forfeiture is a \\\"fine\\\" if it constitutes punishment even in part. United States v. Bajakajian, \\u2014 U.S. -, -, 118 S.Ct. 2028, 2035 n. 6, 141 L.Ed.2d 314 (1998). The Court decided that a punitive forfeiture violates the Excessive Fines Clause of the Eighth Amendment if it is \\\"grossly disproportional to the gravity of a defendant's offense.\\\" - U.S. at -, 118 S.Ct. at 2036. Applying that rule, the Court held that forfeiture of $357,144 where the defendant failed to report the transportation of more than $10,000 outside the United States in contravention of statute violated the Excessive Fines Clause. Id. at -, 118 S.Ct. at 2041.\"}"

ind/11825216.json

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+"{\"id\": \"11825216\", \"name\": \"Donna RATLIFF, Appellant (Plaintiff), v. Edward COHN, Appellee (Defendant)\", \"name_abbreviation\": \"Ratliff v. Cohn\", \"decision_date\": \"1998-03-27\", \"docket_number\": \"No. 49S02-9710-CV-529\", \"first_page\": \"530\", \"last_page\": \"548\", \"citations\": \"693 N.E.2d 530\", \"volume\": \"693\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:17:49.659046+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHEPARD, C. J., and SULLIVAN, SELBY and BOEHM, JJ., concur.\", \"parties\": \"Donna RATLIFF, Appellant (Plaintiff), v. Edward COHN, Appellee (Defendant).\", \"head_matter\": \"Donna RATLIFF, Appellant (Plaintiff), v. Edward COHN, Appellee (Defendant).\\nNo. 49S02-9710-CV-529.\\nSupreme Court of Indiana.\\nMarch 27, 1998.\\nRichard A. Waples, JauNac M. Hanger, Waples & Hanger, Indianapolis, Kenneth J. Falk, Indiana Civil Liberties Union, Indianapolis, for Appellant.\\nJeffrey A. Modisett, Attorney General, Phillip D. Hatfield, Deputy Attorney General, Jon Laramore, Deputy Attorney General, Indianapolis, for Appellee.\\nGreta M. Rowland, Indianapolis, Juvenile Justice Task Force, Inc., Wayne 0. Adams, III, David D. Robinson, Johnson, Smith, Pence, Densborn, Wright & Heath, Indianapolis, for Amicus Curiae Indiana Advocates For Children, Inc.\", \"word_count\": \"10943\", \"char_count\": \"68680\", \"text\": \"ON PETITION TO TRANSFER\\nDICKSON, Justice.\\nOn May 8, 1995, the appellant-plaintiff, fourteen-year-old Donna Ratliff, set fire to her family home, killing her mother and sixteen-year-old sister. Charged as an adult, she pled guilty to arson, a class A felony, and two counts of reckless homicide, class C felonies. The trial court ordered her to serve concurrent sentences of twenty-five years for arson and four years for each reckless homicide conviction. Although the trial court recommended placement in an alternative facility, the Indiana Department of Corrections (\\\"DOC\\\") instead placed her in the Indiana Adult Women's Prison (\\\"Women's Prison\\\"). Once inside the Women's Prison, Ratliff was placed in the Special Needs Unit, separated from the general prison population.\\nIn her civil complaint against the Commissioner of the Indiana Department of Corrections (\\\"the Commissioner\\\"), Ratliff contended that the conditions of her incarceration violated the Indiana and United States Constitutions. She sought declaratory and in-junctive relief requiring the Department of Corrections (\\\"DOC\\\") to transfer her from the Indiana Women's Prison to a rehabilitative juvenile treatment facility.\\nThe Commissioner moved to dismiss the complaint under Trial Rules 12(B)(6) (failure to state a claim upon which relief can be granted) and 12(B)(1) (lack of subject-matter jurisdiction). Without specifying the basis for its ruling, the trial court granted the motion. Ratliff appealed and, in a cursory opinion, the Court of Appeals reversed, holding that Article 9, Section 2 of the Indiana Constitution \\\"prohibits the incarceration of juveniles with adult prisoners.\\\" Ratliff v. Cohn, 679 N.E.2d 985, 988 (Ind.Ct.App.1997). We granted transfer.\\nA. Trial Rule 12(B)(6) Dismissal for Failure to State a Claim upon which Relief Could be Granted\\nRatliff contends that her complaint sufficiently alleges valid claims and, therefore, the trial court should have denied the defendant's motion to dismiss. In reviewing a dismissal under Trial Rule 12(B)(6), an appellate court must determine whether, in the light most favorable to the plaintiff and with every inference drawn in her favor, the complaint stated any set of allegations upon which the trial court could have granted relief to the plaintiff. Cram v. Howell, 680 N.E.2d 1096, 1096 (Ind.1997). Dismissals under Trial Rule 12(B)(6) are \\\"rarely appropriate.\\\" Obremski v. Henderson, 497 N.E.2d 909, 910 (Ind.1986).\\nOn appeal, Ratliff presents five state constitutional grounds and three federal constitutional grounds upon which she contends a trial court could grant relief. We address these grounds accordingly.\\n1. Institutions for Juvenile Offenders\\nRatliff contends that Article 9, Section 2 of the Indiana Constitution, \\\"[t]he General Assembly shall provide institutions for the correction and reformation of juvenile offenders,\\\" requires the State to place all juvenile offenders \\u2014 irrespective of their crimes or background \\u2014 in institutions separate from adult prisons.\\nQuestions arising under the Indiana Constitution are to be resolved by \\\"examining the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our Constitution, and ease law interpreting the specific provisions.\\\" Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind.1996) (citing Ind. Gaming Comm'n v. Moseley, 643 N.E.2d 296, 298 (Ind.1994)). See also Collins v. Day, 644 N.E.2d 72, 76 (Ind.1994); Price v. State, 622 N.E.2d 954, 963 (Ind.1993); Bayh v. Sonnenburg, 573 N.E.2d 398, 412 (Ind.1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 415 (1992). In construing the Constitution we \\\"look to the history of the times, and examine the state of things existing when the Constitution or any part thereof was framed and adopted, to ascertain the old law, the mischief, and the remedy.\\\" Sonnenburg, 573 N.E.2d at 412 (citing State v. Gibson, 36 Ind. 389, 391 (1871)).\\nAt Indiana's constitutional convention in 1850-51, the following text for Article 9, Section 2 was proposed: \\\"The General Assembly shall have the power to provide Houses of Refuge for the correction and reformation of juvenile offenders.\\\" Comments of Delegate Bryant (Dec. 18, 1850), in 2 Report of the Debates and PROCEEDINGS of the Convention for the Revision of the Constitution of the State of Indiana, 1203 (Indiana Historical Collections Reprint, 1935). When this provision was subsequently discussed at the convention, Delegate James Bryant of Warren County moved to amend the proposed language to state that the General Assembly shall provide Houses of Refuge, \\\"so as to make it obligatory upon the General Assembly to provide houses of refuge for juvenile offenders, instead of referring the subject to the discretion of that body, as proposed by the reported section.\\\" Id. at 1903 (Jan. 29, 1851). He justified this amendment by stating, \\\"Since this Convention assembled, we have had a state of facts presented to us, such as I had previously no conception of.\\\" Id. That previously unknown information involved the fact that \\\"more than one-eighth of the whole number\\\" of convicts committed to the Indiana State prison from September, 1822, to November, 1850, \\\"were minors within the age of twenty-one years, and some of these as young as eleven years of age.\\\" Id. (emphasis in original). Delegate Bryant described this as an \\\"outrage upon civilization and humanity,\\\" concluding that he was \\\"persuaded that if these facts had been spread before the public, such a deep disgrace to the character of Indiana would long since have been swept away by the fierce indignation of the people.\\\" Id.\\nDelegate Bryant then concluded that \\\"the object of all punishment\\\" was \\\"two-fold: the prevention of crime and the reformation of the offender.\\\" Id. He questioned how the framers could \\\"propose to diminish crime\\\" or \\\"reform offenders\\\" with a system which sends \\\"the children of the State, perhaps the victims of dissolute parents and neglected education, to this school of vice and infamy, where they cannot fail by means of the associations into which you thrust them, to be irretrievably ruined?\\\" Id. He urged, \\\"There is in this Convention, I am sure, but one feeling in regard to this matter, and that is, that this outrage upon all propriety and humanity shall no longer be.\\\" Id. He concluded, \\\"With such facts before us, it is the imperative duty of the Convention to arrest this evil, to prevent this iniquitous system from being any longer tolerated, and to compel the General Assembly to provide institutions where these juvenile offenders can be restrained, and at the same time reformed.\\\" Id.\\nDelegate James Lockhart of Posey and Vanderburgh Counties echoed Delegate Bryant's indignation, arguing that \\\"there is no question that can be presented for the consideration of this Convention, that is of more importance than this.\\\" Comments of Delegate Lockhart (Jan. 29, 1850), in 2 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana, 1903 (Indiana Historical Collections Reprint, 1935). He noted that, \\\"Having occupied for several years past a high judicial position, I have often been pained to see the youth, the mere boy, branded as a felon, under our laws, and sent for a series of years to that worst of all prisons in the United States \\u2014 the Jeffersonville State prison.\\\" Id.\\nDelegate Bryant's amendment was adopted and the convention approved Article 9, Section 2. The resulting Constitution was thereafter ratified and became effective on November 1, 1851. Governor's Proclamation Declaring Constitution in Force (Sept. 3, 1851, in 1 Constitution Making in Indiana 1780-1850, \\u00a7 149, at 420 (Charles Kettleborough, 1916)).\\nClearly, there was strong support at the convention for significant change from the then-existing state of affairs regarding juvenile incarceration. We agree with Ratliff that Article 9, Section 2 \\\"is unambiguous in requiring the legislature to provide institutions for the correction and reformation of juvenile offenders.\\\" Brief of Appellant at 11.\\nHowever, while the Constitution clearly requires the General Assembly to create a House of Refuge to provide alternative reformation and incarceration opportunities for juvenile offenders, what is not clear is whether the framers intended that every ju venile convicted of an adult crime be sent to the House of Refuge.\\nOur review of the debates of the constitutional convention reveals no discussion of whether the House of Refuge should be the exclusive place for all juvenile offenders without regard to the nature of the juvenile's crime or the background of the juvenile offender. Noticeably absent from the text of Article 9, Section 2 is any adjective designating inclusivity, such as \\\"all juvenile offenders,\\\" \\\"every juvenile offender,\\\" \\\"any juvenile offender,\\\" or \\\"each juvenile offender.\\\" This absence is despite the fact that such adjectives were employed in many, if not most, other constitutional provisions. Further, we find no historical evidence of contemporaneous public expectation that the new constitution was intended to prohibit the incarceration of any and every juvenile offender in an adult prison. In fact, other than replicating the constitutional debates entries, our search in several contemporaneous newspapers uncovered no mention of any public debate or constituent reaction to Article 9, Section 2.\\nThe General Assembly initiated the implementation of Article 9, Section 2 four years after ratification with legislation declaring that, \\\"[t]he Constitution of the State of Indiana requires that the General Assembly shall provide houses of refuge, for the correction and reformation of juvenile offenders, and whereas, common sense and common humanity demand that some steps should be taken at once within this State to separate the youthful convict from the veteran and hardened criminal_\\\" 1855 Ind. Acts Ch. XCIII, Preamble. The Act provided that \\\"the Governor, Treasurer of State, and Superintendent of Public Instruction . are hereby authorized and directed to select and purchase for the State of Indiana . an eligible site for a House of Refuge.\\\" Id. (\\u00a7 1). These state officials were directed to: (1) \\\"procure plans, specifications, and estimates, for the building or buildings necessary for such House of Refuge;\\\" (2) \\\"prepare and mature a system for the management and government of such House of Refuge;\\\" and (3) \\\"ascertain what laws will be necessary to put the [House of Refuge] into successful operation.\\\" Id. (\\u00a7 3). The General Assembly provided some guidance to these officials, directing them to design the House of Refuge as \\\"not simply a place of correction, but a reform school, where the young convict, separated from vicious associates may, by careful physical, intellectual, and moral training, be reformed and restored to the community, with purposes and character fitting him for a good citizen, an honorable, and honest man.\\\" Id. (\\u00a7 4). The resulting statutory scheme created \\\"an Institution to be known as the House of Refuge for Juvenile Offenders.\\\" 1867 Ind. Acts Ch. LX[V]II, \\u00a7 1. Its Superintendent was to \\\"employ such methods of discipline as will, as far as possible, reform [the infants'] characters, preserve their health, promote regular improvement in their studies, trades and employments, and secure to them fixed habits of industry, morality and religion.\\\" Id. (\\u00a7 7).\\nSignificantly, this legislation did not require that all youthful offenders be excluded from the state prison in favor of the House of Refuge. The statute provided the various \\\"modes\\\" by which the Institution would \\\"receive into [its] care and guardianship infants under the age of eighteen years committed to their custody.\\\" Id. (\\u00a7 10). These modes were:\\n1. Infants committed by any Judge of a Circuit Court or Common Pleas Court on the complaint and due proof thereof, by the parent or guardian of such infant, that by reason of incorrigible or vicious conduct such infant has rendered his or her control beyond the power of such parent or guardian, and made it manifestly requisite, that irom regard to the future welfare of such infant, and for the protection of society, he or she should be placed under such guardianship.\\n2. Infants committed by the authorities aforesaid, where complaint and due proof have been made that such infant is a proper subject for the guardianship of said institution, in consequence of vagrancy, or of incorrigible or vicious conduct, and that from the moral depravity, or otherwise, of the parent or guardian in whose custody such infant may be, such parent or guardian is incapable or unwilling to exercise the proper care or discipline over such incorrigible or vicious infant.\\n3. Infants who are destitute of a suitable home and of adequate means of obtaining an honest living, or who are in danger of being brought up to lead an idle and immoral life, and who may be committed to the guardianship of said Institution by the Trustees of the township where such infant resides, or by the mother, when the father is dead or has abandoned his family, or is an habitual drunkard, or does not provide for their support.\\nId.\\nIn addition to these enumerated \\\"modes,\\\" the statute also provided one other means by which an infant could be sent to the Institution:\\nAny infant under the age of eighteen years, who shall under [state] laws . be liable to confinement in the jail [or] penitentiary . may, at the discretion of the Court or Jury trying the cause, be placed in such Institution, until of legal age, under the exclusive control and guardianship of the . Institution.\\nId. (\\u00a7 11) (emphasis added).\\nIn creating the House of Refuge, the General Assembly required that, before an infant could be placed in the Institution, \\\"the person or persons having charge of said infants, shall ascertain from the Superintendent whether they can be received.\\\" Id. (\\u00a7 15) (emphasis added). In situations when the infants could not be received into the Institution because they did not fall into one of the designated placement modes, the Act provided: \\\"[If the infants] cannot be received into said Institution, the cases of such infants shall be disposed of as if this act had never been passed and no proceedings taken under it.\\\" Id. (\\u00a7 15).\\nIt is clear from these statutes \\u2014 the first enacted to initiate the implementation Article 9, Section 2 and the second enacted to fulfill that constitutional mandate \\u2014 that the General Assembly did not believe that its constitutional mandate required every infant to be housed in the Institution rather than in the State Prison. Furthermore, we find nothing in our review of contemporaneous writings and reports to indicate any public protest'\\u2014 or even any discussion \\u2014 regarding the fact that the House of Refuge would not serve as the exclusive place for juvenile incarceration.\\nIt also appears from our independent review of prison records that significant numbers of youthful offenders continued to be incarcerated in adult prison even after the creation of the House of Refuge. The \\\"Annual Reports of the Officers and Directors of the Indiana State Prison\\\" and the original Department of Correction Indiana State Prison logs reveal that, from 1836 through 1850 \\u2014 before the constitutional convention\\u2014 at least two twelve-year-olds, three fourteen-year-olds, three fifteen-year-olds, five sixteen-year-olds, and thirteen seventeen-year-olds were sentenced to incarceration in the Indiana State Prison. Indiana State Prison Logs: Descriptive List of Convicts on the State Prison of Indiana, Volume B, 1836-1855 (original logs located in The Indiana Commission on Public Records, Indiana State Archives).\\nSignificantly, during the five years after the House of Refuge was created, a substan-. tial number of juvenile offenders were still being sentenced to the adult prison. In fact, in the five years after the House of Refuge was created, those juveniles who were sentenced to the adult prison were even younger and greater in number than those sentenced during the fourteen years preceding the constitutional convention. New incarcerations included at least 129 juveniles: three eleven-year-olds, two twelve-year-olds, four thirteen-year-olds, ten fourteen-year-olds, eleven fifteen-year-olds, thirty-four sixteen-year-olds, and sixty-five seventeen-year-olds. Annual Report of the Officers and Directors of the Indiana State Prison, Documentary Journal of Indiana (1867-1872); Indiana State Prison Logs: Desgriptive List of CONVICTS ON THE STATE PRISON OF INDIANA, Volume 1,1869-1877 (original logs located in The Indiana Commission on Public Records, Indiana State Archives).\\nSeveral other items hold particular historical significance. Of these 129 juveniles sentenced to adult prison after the House of Refuge opened, only 22 were thereafter transferred to the House of Refuge after serving part of their sentences in prison.\\nAdditionally, as the framers intended, the ratification of Article 9, Section 2 and the ultimate creation of a House of Refuge had a substantial impact on juveniles incarcerated in adult prisons, despite the fact that all juveniles were not incarcerated in juvenile institutions. Prior to the ratification of Article 9, Section 2, juveniles who committed relatively minor offenses were incarcerated with adult criminals who had committed much more serious offenses. In fact, from 1836 to 1850, the most common crime leading to juvenile incarceration in the adult prison was the minor offense of petit larceny. However, after the House of Refuge was created in 1867, the numbers of juveniles incarcerated in adult prisons for minor offenses dropped dramatically, with juveniles incarcerated in adult prisons primarily for more serious offenses, such as grand larceny and burglary.\\nCiting Acts 1945, Chapter 356, Section 22, Ratliff asserts that, \\\"[i]t was not until 1945 that the Indiana General Assembly finally fulfilled its constitutional mandate by statutorily prohibiting the placement of juveniles in adult institutions.\\\" Brief of Appellant at 11. This is an inaccurate representation of the Act of 1945. While one sentence of the Act provides that juveniles should not be detained in prison, the next sentence specifically provided exceptions to this prohibition: \\\"[AJ child, whose habits or conduct are deemed such as to constitute a menace to other persons, may . be placed in jail or other place of detention for adults, but in a room or ward separate from adults.\\\" 1945 Ind. Aots 346 \\u00a7 22 (emphasis added). Since the Constitution was ratified in 1851, there has never been a comprehensive statutory prohibition against incarcerating certain juveniles in adult prisons.\\nFurther, in 1982 and 1983, successive resolutions by the 102nd and the 103rd General Assemblies recommended that Article 9, Section 2 be amended, substituting \\\"institutions\\\" for \\\"Houses of Refuge.\\\" See Pub.L. No. 231-1982; Pub.L. No. 383-1983. The amended Article 9, Section 2 was adopted at the general election held Nov. 6, 1984. At the time the amended Article 9, Section 2 was ratified, the Juvenile Code did not prevent the incarceration of juveniles who were waived to adult court. See Ind.Code \\u00a7 31 \\u2014 6\\u2014 1-1 et seq. (1982). Despite the opportunity to include language in the new provision reflecting that \\\"all,\\\" \\\"every,\\\" \\\"any,\\\" or \\\"each\\\" juvenile must be incarcerated only in juvenile institutions, no such language was included.\\nConsidering the absence of all-inclusive language in the constitutional text, the debates at the constitutional convention, the implementing legislation enacted shortly after the adoption of the Constitution, and the language retained when the provision was amended in 1984, we hold that, although Article 9, Section 2 clearly requires that the General Assembly provide institutions for juvenile offenders, it does not require that all juveniles \\u2014 irrespective of their crimes or background \\u2014 be housed only in such institutions. Accord Hunter v. State, 676 N.E.2d 14 (Ind.1996) (addressed in detail infra under Article 1, Section 18). We are cognizant that, \\\"in our role as guardian of the constitution, we are nevertheless a court and not a 'supreme legislature.' \\\" Bunker v. Nat'l Gypsum, 441 N.E.2d 8, 11 (Ind.1982). \\\"The legislature has wide latitude in determining public policy, and we do not substitute our belief as to the wisdom of a particular statute for those of the legislature.\\\" State v. Rendleman, 603 N.E.2d 1333, 1334 (Ind.1992).\\nThis case is analogous to Y.A. Fleener v. Bayh, 657 N.E.2d 410 (Ind.Ct.App.1995), trans. denied, wherein the plaintiffs challenged the state's practice of not providing appropriate residential placements for all children who are mentally ill, in violation of Article 9, Section 1 of the Indiana Constitution. Similar to the provision at issue here (Article 9, Section 2), Article 9, Section 1 provides that, \\\"It shall be the duty of the General Assembly to provide, by law, for the support of institutions . for the treatment of the insane.\\\" Ind. Const, art. 9 \\u00a7 1. The Indiana Court of Appeals rejected the plaintiffs argument that \\\"the constitution places upon the General Assembly the absolute duty to care for the members of this class.\\\" Y.A. Fleener, 657 N.E.2d at 417. The court found that:\\nAt the risk of being too simplistic in our response to this argument, we merely state that the constitutional provision is not without limitations. These limitations may be imposed by common sense, and by the constraints placed upon government to wisely distribute and apportion available funds among the various needs and programs which exist and which must be established for the welfare of all citizens. In short, the constitutional provisions are to be construed in the light of reason and the logical intendment of the framers.\\nThe General Assembly, however, may not avoid the very real intendment of the constitutional mandate to care for the mentally ill and disturbed, by refusing to raise and appropriate adequate funds to provide not unlimited care, but adequate care. In the same vein, if the General Assembly has appropriated adequate funds and has appropriately delegated to the executive branch of state government the duty and responsibility for implementing an[d] carrying out the programs to meet the needs, then the executive may not refuse to carry out its responsibility.\\nId. The court then found that the \\\"unlimited care sought by plaintiffs in this lawsuit\\\" was not required. Id. at 418 (emphasis added).\\nBecause Article 9, Section 2 does not require the placement of all juveniles in a separate juvenile facility, Ratliffs claim that her incarceration in the Women's Prison vio lates this provision does not state a claim upon which relief could be granted.\\n2. Confinement with Unnecessary Rigor\\nRatliff contends that her incarceration in the Women's Prison violated Article 1, Section 15 of the Indiana Constitution, which provides that, \\\"No person . confined in jail, shall be treated with unnecessary rigor.\\\" Ind. Const, art. 1 \\u00a7 15.\\nThe essence of Ratliffs complaint is that her placement in the Special Needs Unit of-the Women's Prison \\\"deprived her of adequate rehabilitative treatment, during her incarceration.\\\" Record at 16 (Complaint of Donna Ratliff, \\u00b6 23). Ratliff contends that she was \\\"physically, sexually, and emotionally abused by various family members since the age of four.\\\" Id. 13 (\\u00b6 7). She contends that the Special Needs Unit is comprised of women who \\\" 'display severe psychological disorders' and are incapable of functioning in an open population setting\\\" and that the inmates in this Unit are \\\"seriously mentally ill or . have severe anger problems.\\\" Id. at 14-15 (\\u00b6 15).\\nHer treatment in adult prison included \\\"ninety minutes a month in individual consultation with the prison psychologist\\\" and of participating in two one-hour group therapy sessions, one dealing with \\\"sexually-abused women who have unresolved issues contributing toward criminal behavior\\\" and another dealing with \\\"issues of personal responsibility, behavioral change and complicated grief among women who have taken the life of a significant other.\\\" Id. at 15 (\\u00b6 17). Although she does not take issue with the individualized treatment she has received in her consultations with the prison psychologist, she contends the group sessions have been \\\"inappropriate for dealing with [her] psychological problems and have had an adverse impact on [her] rehabilitation\\\" because she \\\"does not share like experiences with these adult offenders, or have the benefit of sharing therapy with her peer group\\\" and that others \\\"have shown hostility and resentment toward [her] when she has participated in the group, and prison officials have admonished her to refrain from sharing her experiences as a victim of child abuse with the group.\\\" Id. at 15 (\\u00b6 18). .\\nCases recognizing violations of Article 1, Section 15 involve situations where a prisoner was tortured, had a tooth knocked out, was repeatedly beaten, kicked, and struck with a blackjack and beaten with a rubber hose while he was stretched across a table, Kokenes v. State, 213 Ind. 476, 13 N.E.2d 524 (1938), where a prisoner was beaten with police officer's fists in both eyes, cut on the top of his head, and beaten with a rubber hose bn the head' and ears, Bonahoon v. State, 203 Ind. 51, 178 N.E. 570 (1931), and where a. prisoner w\\u00e1s severely injured after being shot by police during a protest, Roberts v. State; 159 Ind.App. 456, 307 N.E.2d 501 (1974).\\nRatliffs treatment in prison, as asserted in her complaint, does not rise to the level of the \\\"unnecessary rigor\\\" contemplated by Article 1, Section 15. Ratliffs complaint has not stated a claim under Article 1, Section 15 upon which relief can be granted.\\n3. . Penal Code, Reformation, and Vindictive Justice\\nEmphasizing the constitutional debates, Ratliff contends that her incarceration in the Women's Prison contravenes the rehabilitation principle of our penal laws as mandated by Article 1, Section 18, which provides. \\\"The penal code shall be founded on the principles of reformation, and not of vindictive justice.\\\" Ind. Const, art. 1 \\u00a7 18.\\nWe recently addressed this claim in Hunter v. State, 676 N.E.2d 14 (Ind.1996), wherein a sixteen-year-old boy contended that \\\"his incarceration with older, hardened criminals violates Article I, \\u00a7 18 of the Indiana Constitution . [maintaining] that the debates of Indiana's constitutional convention of 1850 reveal that this provision was meant to prevent the incarceration of young offenders under the age of twenty-one years with older, hardened criminals.\\\" Id. at 16. We rejected this contention under both Article 1, Section 18 and Article 9, Section 2, finding that:\\n[T]he comments of the delegates reflect a patent intent to accommodate reformation of youths by separating them from hardened criminals who are purportedly not as susceptible to redemption. The legislature has not frustrated this intent by setting up a statutory scheme that prohibits most youths from being confined to an adult correctional facility. The only youths who are not subject to this general rule are youths alleged to have committed the most serious and violent crimes. We find it well within the legislature's purview to conclude that this system better accommodates the purposes behind Article I, \\u00a7 18 and Article 9, \\u00a7 2, because it segregates younger and less violent offenders from the most violent offenders, regardless of age.\\nId. at 17.\\nRatliff contends that reliance upon Hunter is inappropriate for several reasons. Citing the same debates at the convention as we noted above, she argues that Hunter should be overruled because \\\"[t]he historical record does not support\\\" its conclusion. Appellant's Brief in Response to Petition to Transfer at 6. She is incorrect.\\nRatliff also argues that Hunter should be overruled because it has no limiting principle, as it \\\"does not provide this Court with a principled basis to approve or disapprove any particular class of excluded juveniles.\\\" Id. In the alternative, she argues that Hunter should be distinguished because the defendant in Hunter was a sixteen-year-old male, was a violent offender with a criminal record, and was convicted of murder and burglary, whereas Ratliff is a fourteen-year-old female, a first-time offender, and was convicted of arson and two counts of reckless homicide.\\nHowever, such particularized, individual applications are not renewable under Article 1, Section 18 because Section 18 applies to the penal code as a whole and does not protect fact-specific challenges. Lowery v. State, 478 N.E.2d 1214, 1220 (Ind.1985) (Article 1, Section 18 \\\"applies to the penal laws as a system to insure that these laws are framed upon the theory of reformation as well as the protection of society.\\\") (emphasis added), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986). See also Driskill v. State, 7 Ind. 338, 342-43 (1855).\\nArticle 1, Section 18 does not prevent juveniles from being placed in the Women's Prison. As to this issue, Ratliff has failed to state a claim upon which relief may be granted.\\n4. Cruel and Unusual Punishment\\nRatliff contends that her incarceration in the Women's Prison violates Article 1, Section 16 of the Indiana Constitution, which provides that \\\"Cruel and unusual punishments shall not be inflicted,\\\" Ind. Const, art. 1 \\u00a7 16, and the Eight Amendment to the United States Constitution, which also prohibits \\\"cruel and unusual punishments.\\\" U.S. Const, amend. VTII.\\nArticle 1, Section \\u00cd.6 of the Indiana Constitution does not entitle a person convicted of a crime in Indiana to any identifiable right to assignment to a particular institution. Barnes v. State, 435 N.E.2d 235, 242 (Ind.1982) (rejecting a defendant's claim that, because he previously had been a police informant, which could result in his being killed by other prisoners, his confinement in a state prison was cruel and unusual). \\\"Generally, the constitutional prohibitions against cruel and unusual punishments . are proscriptive of atrocious or obsolete punishments and are aimed at the kind and form of the punishment, rather than the duration and amount.\\\" Wise v. State, 272 Ind. 498, 502, 400 N.E.2d 114, 117 (1980). Punishment violates Article 1, Section 16 only if it \\\"makes no measurable contribution to acceptable goals of punishment, but rather constitutes only purposeless and needless imposition of pain and suffering.\\\" Douglas v. State, 481 N.E.2d 107, 112 (Ind.1985) (rejecting the argument that the imposition of a thirty-year sentence for a sixteen-year-old boy constituted cruel and unusual punishment).\\nRatliffs complaint contends that her incarceration in the Women's Prison was cruel and unusual punishment because she has been abused her whole life, was isolated from her peers in the prison, and her primary treatment was group therapy sessions with adult \\\"sexually-abused women who have unresolved issues contributing toward criminal behavior.\\\" Record at 15 (Complaint of Donna Ratliff, \\u00b6 17).\\nConsidering the serious offenses which Ratliff committed \\u2014 setting fire to her home and killing her mother and sister \\u2014 her isolation from peers and the counseling sessions she attends contribute to acceptable goals of punishment. Thus, her incarceration in the Women's Prison was not devoid of any \\\"measurable contribution to acceptable goals of punishment,\\\" Douglas, 481 N.E.2d at 112, nor was it \\\"atrocious or obsolete punishment ].\\\" Wise, 272 Ind. at 502, 400 N.E.2d at 117. Under these eases, Ratliff has not established an Article 1, Section 16 violation. Thus, she has failed to state a claim upon which relief may be granted.\\nRatliff also contends that the Eighth Amendment to the Constitution of the United States was violated because community standards are moving away from incarcerating juveniles under sixteen years of age in adult prisons. A 1995 United States Department of Justice study indicates that, while a majority of the states currently incarcerate juvenile offenders with adults (58%), only 38% of those states actually incarcerate juvenile offenders under the age of sixteen in adult prisons. Ratliff argues that, \\\"once a punishment has been rejected by a sufficiently large number of state legislatures, it can no longer be said that it is consistent with society's standards of decency\\\" and, therefore, violates the Eighth Amendment. Brief of Appellant at 16. In response, the State cites several articles and contends that the opposite is true, arguing that \\\"the national trend has been toward harsher penalties for juveniles and toward incarcerating juveniles convicted of adult crimes away from other juveniles.\\\" Brief of Appellee In Support of Transfer at 11.\\nWe remain unconvinced that the practice of incarcerating juvenile offenders under the age of sixteen in the adult prison necessarily violates the Eighth Amendment. Of the majority states which incarcerate juveniles in prison, close to 40% also incarcerate in adult prison those under the age of sixteen. This is hardly a \\\"reject[ion] by a sufficiently large number of state legislatures.\\\" Id. We find that, \\\"[t]his is a question of public policy rather than a constitutional question and thus is an argument to be made to the legislative body rather than to a judicial tribunal.\\\" Miller v. State, 623 N.E.2d 403, 411 (Ind.1993) (rejecting an Eighth Amendment cruel and unusual punishment challenge).\\nRatliff also contends that the incarceration of \\\"a young girl who has been abused her whole life . where her primary treatment is group therapy sessions with adults who have been convicted of abusing children,\\\" constitutes cruel and unusual punishment in violation of the Eighth Amendment. Brief of Appellant at 15. This was extensively addressed by the Federal District Court for the Eastern District of California in Madrid v. Gomez, 889 F.Supp. 1146 (N.D.Cal.1995), mandamus denied sub nom., Wilson v. U.S. Dist. Court for the E. Dist. of Cal., 103 F.3d 828 (9th Cir.1996), cert. denied, \\u2014 U.S. -, 117 S.Ct. 1823, 137 L.Ed.2d 1031 (1997), a ease where prison inmates brought a civil rights action alleging, among other things, that the state denied them adequate mental health treatment.\\nThe court began by noting that, under the Eighth Amendment, \\\"It is firmly established that 'medical needs' include not only physical health needs, but mental health needs as well.\\\" Id. at 1255 (citations omitted). \\\"As far back as 1977, the Fourth Circuit observed that there is 'no underlying distinction between the right to medical care for physical ills and its psychological or psychiatric counterpart.' \\\" Id. (citing Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir.1977)).\\nTo establish an Eighth Amendment violation, Ratliff \\\"must demonstrate that prison officials are 'deliberately indifferent' to [her] 'serious' medical needs....\\\" Id. (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251, 261 (1976); Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987)).\\n[T]o prove deliberate indifference, plaintiffs must demonstrate not only that the levels of medical and mental health care are constitutionally inadequate from an objective standpoint . but also that defendants (1) knew the risk to inmate health that this inadequacy posed, and (2) acted with disregard for this risk. In short, plaintiffs must show that defendants \\\" 'consciously disregarded]' a substantial risk of serious harm\\\" to plaintiffs' health or safety. Accidental or inadvertent failure to provide adequate care will not suffice.\\nMadrid, 889 F.Supp. at 1256 (citing Farmer v. Brennan, 511 U.S. 825, 839, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811, 824 (1994); Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239).\\nTrial Rule 12(B)(6) requires that the complaint state any set of allegations upon which the trial court could have granted relief. Cram v. Howell, 680 N.E.2d 1096, 1096 (Ind.1997). Ratliffs complaint alleges that she was \\\"physically, sexually, and emotionally abused by various family members since the age of four\\\" and that she had been hospitalized for psychiatric treatment on two separate occasions in the two years prior to her offense. Record at 13 (Complaint of Donna Ratliff, \\u00b6 7). According to her complaint, a court psychologist recommended that she be placed in an alternative setting because \\\"important aspects of her rehabilitation might not occur if she were placed in an adult prison_\\\" Id. at 14 (\\u00b6 10). Ratliff alleges that the Commissioner, despite knowledge of this information, \\\"rejected concerns made by numerous concerned citizens and affirmed Donna's placement at the Indiana Women's Prison.\\\" Id. at 14 (\\u00b6 10).\\nHer complaint asserts that she was placed in the Special Needs Unit of the Women's Prison, which is comprised of women who \\\" 'display severe psychological disorders' and are incapable of functioning in an open population setting\\\" and that the inmates in this Unit are \\\"those who are seriously mentally ill or who have severe anger problems.\\\" Id. at 14 (\\u00b6 15). She complains that her group therapy sessions have been \\\"inappropriate for dealing with [her] psychological problems and have had an adverse impact on [her] rehabilitation.\\\" Id. at 15 (\\u00b6 18). She alleges that \\\"prison officials have admonished her to refrain from sharing her experiences as a victim of child abuse with the group,\\\" that she \\\"has been subjected to hostility and threats by adult inmates participating in these therapy sessions . and fears for her safety,\\\" and that \\\"She has been sexually propositioned and hai'assed by older inmates.\\\" Record at 15 (Complaint of Donna Ratliff, \\u00b6 18,19).\\nAs previously noted, although we express no opinion as to the merits of Ratliffs claims, our review of the trial court's dismissal requires that we view it in the light most favorable to the plaintiff and with every inference drawn in her favor. Cram v. Howell, 680 N.E.2d 1096, 1096 (Ind.1997). Because Ratliffs complaint essentially alleges that prison officials have been deliberately indifferent to her serious medical needs, her complaint is sufficient to withstand a Trial Rule 12(B)(6) motion to dismiss for failure to state a claim as to this aspect of her Eighth Amendment claim.\\n5. Privileges, Immunities, and Equal Protection\\nRatliff contends on appeal that, because she was not provided age-appropriate counseling and peer group therapy, her incarceration in the Women's Prison has violated Article 1, Section 23 of the Indiana Constitution, which provides that, \\\"The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens,\\\" Ind. Const, art. 1 \\u00a7 23, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, which provides that states cannot \\\"deny to any person within its jurisdiction the equal protection of the laws.\\\" U.S. Const, amend. XIV. She did not argue this claim before the trial court.\\nThis is an appeal from the grant of a Trial Rule 12(B)(6) motion and our review on appeal is limited to whether the complaint stated any set of allegations upon which the trial court could have granted relief. In her appellate brief, Ratliff bases her constitutional claims upon factual comparisons between the treatment that she received while confined in an adult prison and the treatment received by juveniles confined in juvenile institutions. However, in her complaint, she makes no such factual assertions regarding the treatment received by juveniles confined in juvenile institutions. Thus, on the face of her complaint, she has not stated a claim under which relief could be granted.\\n6. Due Process\\nRatliff contends that her complaint alleged facts sufficient to state a claim under the Due Process Clause of the Fourteen Amendment to the United States Constitution, which provides that no state shall \\\"deprive any person of life, liberty, or property, without due process of law.\\\" U.S. Const, amend. XIV.\\nCiting Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), she argues that \\\"[cjhildren in custody of the state have the right to minimally adequate care and treatment under the Fourteenth Amendment.\\\" Brief of Appellant at 19. The plaintiff in Youngberg was involuntarily committed to a state institution for the mentally retarded and brought a Section 1983 claim contending, in essence, that his substantive due process rights were violated by: (1) the institution's lack of safe conditions of confinement; (2) its practice of restraining him for long periods of time; and (3) the lack of appropriate treatment for his mental retardation. Id. at 311, 102 S.Ct. at 2455, 73 L.Ed.2d at 34. The Court noted that it had already held that involuntarily committed and incarcerated individuals have a Fourteenth Amendment liberty interest in adequate food, shelter, clothing, and medical care. Thus, Youngberg addressed the new question of whether liberty interests for such individuals also exist in safety, freedom of movement, and treatment. Id. at 315, 102 S.Ct. at 2458, 73 L.Ed.2d at 37.\\nThe Court quickly found that the first two claims involved general liberty interests recognized by its prior decisions and that \\\"involuntary commitment proceedings do not extinguish\\\" those interests. Id. However, rather than address whether a broad liberty interest in treatment existed under the Fourteenth Amendment, the Court addressed only the more specific claim for treatment \\\"to ensure safety and freedom from undue restraint.\\\" Id. at 319, 102 S.Ct. at 2460, 73 L.Ed.2d at 39 (\\\"[T]his case does not present the difficult question whether a mentally retarded person, involuntarily committed to a state institution, has some general constitutional right to training [treatment] per se.... \\\"). Thus, the Court held that, in addition to previously recognized liberty interests in adequate food, shelter, clothing, and medical care, an involuntarily committed person also enjoys constitutionally protected due process interests in: (1) conditions of reasonable care and safety; (2) reasonably nonrestrictive confinement conditions; and (3) such treatment as may be required to secure these conditions of reasonable care and safety and nonrestrictive confinement. Id. at 324, 102 S.Ct. at 2462, 73 L.Ed.2d at 42-43.\\nOn appeal, Ratliff contends that her due process rights have been violated because the treatment provided her in the adult prison \\\"is without rehabilitative purpose and is having a detrimental impact on her psychologically and emotionally.\\\" Brief of Appellant at 19. However, despite her general claim of entitlement to minimally adequate care and treatment while in custody, the Supreme Court has not extended such entitlement beyond the treatment required to ensure reasonable care and safety and reasonably nonrestrictive confinement. Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462, 73 L.Ed.2d at 42-43. As a result, to survive a Trial Rule 12(B)(6) motion to dismiss, Ratliffs complaint must present a claim that she has been denied treatment which would lead to her reasonable care and safety or freedom from restrictive confinement.\\nAs we have noted above, Ratliff contends that she was physically, sexually, and emotionally abused. Record at 13 (Complaint of Donna Ratliff, \\u00b6 7). She contends that the treatment she receives in the Women's Prison is inadequate because her groups include women with whom she does not share \\\"like experiences\\\" and that she does not have the benefit of being in therapy \\\"with her peer group.\\\" Id. at 15 (\\u00b6 18). These complaints allege only inadequate treatment generally, not that she has been denied treatment which would lead to her reasonable care and safety freedom from restrictive confinement. Thus, dismissal as to this claim was appropriate.\\nNonetheless, Ratliff did raise a general Due Process Clause violation in her complaint and also alleged that she \\\"has been subjected to hostility and threats by adult inmates . and fears for her safety\\\" and that \\\"she has been sexually propositioned and harassed by older inmates.\\\" Id. at 15 (\\u00b6 19). Although this allegation does not al-\\nlege that she has been denied treatment which would lead to protection from these specific occurrences, Youngberg also recognizes a \\\"constitutionally protected interest! ] in conditions of reasonable care and safety. .\\\" Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462, 73 L.Ed.2d at 42-43, and her complaint need only state any set of allegations upon which the trial court could have granted relief. Cram v. Hoiuell, 680 N.E.2d 1096, 1096 (Ind.1997). While we express no opinion as to the merits of the claim, her allegation that she has been subjected to hostility and threats by adult inmates and fears for her safety is sufficient to withstand a Trial Rule 12(B)(6) motion to dismiss for failure to state a claim.\\nB. Lack of Subject-Matter Jurisdiction\\nBecause we have found two claims which are sufficiently raised in Ratliffs complaint to withstand dismissal under Trial Rule 12(B)(6), we address the second ground on which the trial court's opaque order granting dismissal may have been based. The Commissioner requested dismissal, in part alleging lack of subject-matter jurisdiction under Trial Rule 12(B)(1).\\nIn a memorandum in support of its motion to dismiss, the Commissioner argued, in a single sentence, that the trial court lacked jurisdiction to entertain the plaintiffs claims \\\"because administrative decisions made by the Indiana Department of Correction are expressly exempt from judicial review. Indiana Code \\u00a7 4-21.5-2-5(6).\\\" Record at 23. This statute provides that the Administrative Orders and Procedures Act \\\"does not apply to . An agency action related to an offender within the jurisdiction of the department of correction.\\\" Ind.Code \\u00a7 4-21.5-2-5(6) (1993). There is nothing in this statute to support the Commissioner's broad statement that courts lack the power of judicial review over alleged violations of an inmate's right to medical treatment under the Eighth Amendment and an inmate's constitutionally protected interests in conditions of reasonable care and safety under the Fourteenth Amendment. The grounds urged by the Commissioner in support of his challenge to the trial court's jurisdiction are insufficient to undermine the Marion Superior Court's general subject-matter jurisdiction. See Ind. Code \\u00a7 33-5.1-2-1, 4 (1993).\\nWe find no lack of subject-matter jurisdiction. The trial court's dismissal cannot be affirmed upon such a claim.\\nC. Conclusion\\nRatliffs complaint contending that her incarceration in adult prison violates Article 9 Section 2, Article 1, Section 15, Article 1, Section 16, Article 1, Section 18, and Article 1, Section 23 of the Indiana Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution fails to state a claim upon which a trial court could grant relief. Her complaint does state a claim upon which a trial court, after proper and sufficient proof at trial, could grant relief under the Due Process Clause of the Fourteenth Amendment and the Eighth Amendment to the United States Constitution.\\nThe trial court is affirmed in part and reversed in part. This cause is remanded for further proceedings consistent with this opinion.\\nSHEPARD, C. J., and SULLIVAN, SELBY and BOEHM, JJ., concur.\\n. A transcript from the sentencing hearing was not included in the record on appeal. These factual allegations arc from Ratliffs complaint. As this appeal involves a Trial Rule 12(B)(6) motion to dismiss, we \\\"take as true all well-pled material facts alleged in the complaint.\\\" Culver-Union Township Ambulance Serv. v. Steindler, 629 N.E.2d 1231, 1235 (Ind.1994).\\n. Ratliff's appeal raises only the constitutionality of the DOC's original decision to place her in the Women's Prison. She does not ask us to consider whether, outside of these constitutional arguments, the DOC decision was appropriate. Accordingly, our opinion today addresses only the constitutional arguments regarding the DOC's decision placing her in the Women's Prison.\\n. At oral arguments on December 9, 1997, the Deputy Attorney General noted that Ratliff is no longer in the Women's Prison. After the decision of the Court of Appeals that placement in the Women's Prison violated the Indiana Constitution, the DOC transferred custody of Ratliff to a private juvenile facility in Fort Wayne.\\n. Ind. Const, art. 9 \\u00a7 2; Ind. Const, art. Ind Const, art. I \\u00a7 16; Ind. Const, art. and Ind. Const, art. 1 \\u00a7 23.\\n. U.S. Const, amend. XIV \\u00a7 1 (Due Process Clause); U.S. Const amend. XIV \\u00a7 1 (Equal Protection Clause); and U.S. Const, amend. VIII.\\n. When adopted in 1851, the Indiana Constitution used the phrase \\\"Houses of Refuge.\\\" It was amended in 1984 to delete \\\"Houses of Refuge\\\" and replace it with \\\"institutions.\\\"\\n. The General Assembly fulfilled this mandate, opening the first House of Refuge in 1867. Such institutions remain in existence today and house many juvenile offenders.\\n. Ind Const, art. I \\u00a7 1 (\\\"WE DECLARE that all people are created equal . that all power is inherent in the People; and that all free governments are....\\\"); Ind. Const, art. 1, \\u00a7 2 {\\\"All people shall be secured in the natural right to worship ALMIGHTY GOD, according to the dictates of their own consciences.\\\"); Ind. Const, art. 1, \\u00a7 3 (\\\"No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience.\\\"); Ind. Const, art. 1, \\u00a7 5 (\\\"No religious test shall be required, as a qualification for any office of trust or profit.\\\"); Ind. Const, art. 1, \\u00a7 9 (\\\"No law shall be passed . restricting the right to speak . on any subject whatever; but for the abuse of that right, every person shall be responsible.\\\"); Ind. Const, art. 1 \\u00a7 10 (\\\"In all prosecutions for libel, the truth of the matters alleged to be libellous, may be given in justification.\\\"); Ind. Const, art. 1 \\u00a7 12 (\\\"All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.\\\"); Ind Const. art. 1 \\u00a7 13 (\\\"In all criminal prosecutions, the accused shall have the right to a public trial... .\\\"); Ind. Const, art. 1, \\u00a7 14 (\\\"No person, in any criminal prosecution, shall be compelled to testify against himself.\\\"); Ind. Const, art. 1 \\u00a7 16 {\\\"All penalties shall be proportioned to the nature of the offense.\\\"); Ind. Const, art. 1 \\u00a7 19 (\\\"In all criminal cases whatever, the jury shall have the right to determine the law and the facts.\\\"); Ind. Const, art. 1 \\u00a7 20 (\\\"In all civil cases, the right of trial by jury shall remain inviolate.\\\"); Ind Const art. 1 \\u00a7 23 (\\\"The General Assembly shall not grant to any citizen . privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.\\\"); Ind Const. art. 2 \\u00a7 1 {\\\"All elections shall be free and equal.\\\"); Ind. Const art. 2 \\u00a7 2 {\\\"Every citizen of the United States, of the age of eighteen (18) years or more . shall be entitled to vote in that precinct.\\\"); Ind. Const art. 2 \\u00a7 6 {\\\"Every person shall be disqualified from holding office, during the term for which he may have been elected, who shall have given or offered a bribe, threat, or reward, to procure his election.\\\"); Ind. Const. art. 2 \\u00a7 11 (\\\"In all cases in which it is provided that an office shall not be filled by the same person more than a certain number of years continuously, an appointment pro tempore shall not be reckoned a part of that term.\\\"); Ind. Const. art. 2 \\u00a7 12 (\\\"In all cases, except treason, felony, and breach of the peace, electors shall be free from arrest, in going to elections, during their attendance there, and in returning from the same.\\\"); Ind Const, art. 2 \\u00a7 13 {\\\"All elections by the People shall be by ballot; and all elections by the General Assembly, or by either branch thereof, shall be viva voce.\\\"); Ind. Const, art. 2 \\u00a7 14 {\\\"All general elections shall be held on the first Tuesday after the first Monday in November....\\\"); Ind. Const art. 4 \\u00a7 1 (\\\"The style of every law shall be: 'Be it enacted by the General Assembly of the State of Indiana;' and no law shall be enacted, except by bill.\\\"); Ind Const, art. 4 \\u00a7 8 (\\\"Senators and Representatives, in all cases except treason, felony, and breach of the peace, shall be privileged from arrest, during the session of the General Assembly, and in going to and returning from the same....\\\"); Ind. Const. art. 4 \\u00a7 18 {\\\"Every bill shall be read, by title, on three several days, in each House . and the vote on the passage of every bill or joint resolution shall be taken by yeas and nays.\\\"); Ind. Const, art. 4 \\u00a7 20 {\\\"Every act and joint resolution shall be plainly worded, avoiding, as far as practicable, the use of technical terms.\\\"); Ind. Const, art. 4 \\u00a7 23 (\\\"In all the cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State.\\\"); Ind. Const, art. 4 \\u00a7 27 {\\\"Every statute shall be a public law, unless otherwise declared in the statute itself.\\\"); Ind Const, art. 5 \\u00a7 14 {\\\"Every bill which shall have passed the General Assembly shall be presented to the Governor.\\\"); Ind. Const, art. 5 \\u00a7 21 (\\\"The Lieutenant Governor shall . have a right . to vote on all subjects....\\\"); Ind. Const art. 6 \\u00a7 6 {\\\"All county, township, and town officers, shall reside within their respective counties, townships, and towns....\\\"); Ind Const, art. 6, \\u00a7 7 {\\\"All State officers shall, for crime, incapacity, or negligence, be liable to be removed from office....\\\"); Ind Const, art. 6 \\u00a7 8 {\\\"All State, county, township, and town officers, may be impeached. .\\\"); Ind. Const, art. 7, \\u00a7 4 (\\\"The Supreme Court shall have, in all appeals of criminal cases, the power to review all questions of law and to review and revise the sentence imposed.\\\"); Ind. Const art. 7 \\u00a7 11 {\\\"Every such justice and judge shall retire at the age specified by statute....\\\"); Ind. Const art. 7 \\u00a7 18 {\\\"All criminal prosecutions shall be carried on in the name, and by the authority of the state; and the stylo of all process shall be: 'The State of Indiana.' \\\"); Ind Const, art. 15 \\u00a7 4 {\\\"Every person elected or appointed to any office under this Constitution, shall . take an oath or affirmation, to support the Constitution of this State, and of the United States...\\n. Including The Indiana State Sentinel, The Indiana State Journal, The Evansville Weekly Journal, The Fort Wayne Times, and The Fort Wayne Sentinel.\\n. That the enactment was a product of study and efforts following the 1855 legislative directive is evidenced by the Governor's message to the General Assembly during the 1867 term, in which he discussed the constitutional mandate to create a House of Refuge and noted that there had been \\\"much attention and labor upon the subject\\\" and that he had been given \\\"valuable communications, which I herewith lay before you, together with reports and documents setting forth the character and operations of the Reform Schools in New York, Ohio, and Illinois.\\\" Address of Governor Conrad Baker (January 11, 1867) Journal of the House of Representatives of the State of Indiana during the forty-fifth regular session of the general Assembly, Part 1 at 30 (1867).\\n. 1855 Ind. Acts Ch. XCIII; 1867 Ind. Acts Ch LX[V]II.\\n. The juveniles were incarcerated for murder (two), manslaughter (three), arson (one), rape (one), burglary (two), grand larceny (six), Obstruction (one), stealing from a post office (one), petit larceny (nine).\\n.These juveniles were incarcerated for murder (two), manslaughter (two), arson (one), rape (three), burglary (fifteen), forgery (one), robbery (five), grand larceny (eighty-four), assault and battery with intent to rape (one), receiving stolen goods (one), and petit larceny (fourteen).\\n.In his article reviewing the historical context in which juvenile courts were created in Indiana, Justice Sullivan noted the non-exclusive nature of sentencing juveniles in the years after the constitutional convention:\\nAt the end of the 19th century, this country's courts treated children accused of crimes the same as adult offenders.... Like the rest of the country, Indiana made no distinction between the adult and the child. Indiana made no special provision for separate confinement for children pending trial, the hearing of their cases, or their final disposition. If guilty, children might share incarceration with men and women in jail or a workhouse. In more serious cases, they might be transferred to the criminal court or be sentenced to the Indiana Boys' School or the Industrial School for Girls.\\nFrank Sullivan, Jr., Indiana as a Forerunner in the Juvenile Court Movement, 30 Ind.L.Rev. 279, 279 (1997) (footnotes omitted). In 1889, the General Assembly began revising its treatment of juveniles, culminating in 1903 with the creation of our juvenile court by virtue of Indiana Juvenile Court Act. See 1903 Ind.Acts ch. 237, \\u00a7 4. This Act specifically provided that, \\\"If the child was found guilty of the offense charged and appeared to the court to be 'wilfully wayward and unmanageable,' send the child to [the Houses of Refuge] or to any state penal or reformatory institution.\\\" Id. at 298 (emphasis added).\\n. In the five years after a House of Refuge was opened, 77% of the juvenile population was incarcerated for either grand larceny or burglary and only 10% was incarcerated for petit larceny, compared to years prior to 1850 when the most common juvenile crime leading to incarceration was petit larceny (35%).\\n. The current provision reads, \\\"The General Assembly shall provide institutions for the correction and reformation of juvenile offenders.\\\" Ind Const, art. 9 \\u00a7 2.\\n. The conclusions of the Fleener court are also applicable to this case:\\nWhile we might agree with plaintiffs that provision for only 400 of the some 7,000 children needing residential care, seems, on its face woefully inadequate, we are not at liberty to fashion a degree of care for a particular segment of the class, nor arc we enabled to direct the General Assembly to raise funds adequate for the executive to care for all members of the class in an unlimited fashion. While it may be of little or no consolation to an emotionally disturbed youngster who needs but cannot obtain state funded care, the answer seems to lie in the elective process. The citizens of the state who select the legislators and the public officials who implement and direct the various programs required, may make their voices heard.\\nY.A. Fleener, 657 N.E.2d at 417-18.\\n. As wc noted above, Ratliff is no longer in the Women's Prison. She is in a private juvenile facility in Fort Wayne.\\n. Additionally, Hunter was not a fact-specific challenge to the named juvenile's incarceration in adult prison. Hunter rejected the plaintiff's broad and generalized claim that \\\"under Article 1, \\u00a7 18 of the Indiana Constitution, all youths under the age of twenty-one years must be confined in a separate facility.\\\" Hunter, 676 N.E.2d at 16.\\n. However, we note that she also received \\\"ninety minutes a month in individual consultation with the prison psychologist.\\\" Record at 15 (Complaint of Donna Ratliff, \\u00b6 17).\\n. Ratliff also cites Conner v. State, 626 N.E.2d 803 (Ind.1993) for the proposition that, \\\"Article I, \\u00a7 16 provides even broader protection against cruel and unusual punishment than does the Eighth Amendment.\\\" Brief of Appellant at 17. As the State correctly notes, this is not an accurate reading of Conner, nor of our Article 1, Section 16 jurisprudence. In Conner we addressed a portion of Article 1, Section 16 not at issue here: \\\"All penalties shall be proportioned to the nature of the offense.\\\" Ind. Const, art 1 \\u00a7 16. This particular provision has no counterpart in the federal constitution. Thus, we noted, \\\"This provision goes beyond the protection against cruel and unusual punishment contained in the Eighth Amendment to the U.S. Constitution.\\\" Conner, 626 N.E.2d at 806. In the case before us, we are not faced with a proportionality challenge. Thus, case law cited by Ratliff addressing Article 1, Section 16 in that context is inappropriate.\\nIn addition, citing Reed v. State, 479 N.E.2d 1248 (Ind.1985), Ratliff mistakenly asserts that this Court has interpreted Section 16 to require the State \\\"to take reasonable precautions to preserve the life, health and safety of its prisoners.\\\" Brief of Appellant at 18. The defendant in Reed argued that, due to his age (18) and slight build, sentencing in a maximum security facility would be cruel and unusual punishment in violation of Article 1, Section 16. This Court found the issue waived for failure to raise the question at trial. Id. at 1254.\\nFinally, Ratliff argues that, when \\\"construed in combination with the prohibition of unnecessary rigor contained in Article I, \\u00a7 15, the requirement in Article I, \\u00a7 18 that the state's penal laws shall be based on principles of rehabilitation and not vindictive justice, coupled with the explicit requirement for juvenile institutions contained in Article IX, \\u00a7 2,\\\" Article 1, Section 16 \\\"should provide greater protections in her case.\\\" Brief of Appellant at 18. Because we have rejected her claims regarding each of the above provisions, this argument fails.\\n. Even were there a strong trend, we addressed a similar argument in Harrison v. State, 644 N.E.2d 1243 (Ind.1995), wherein the defendant contended that the death by electrocution is cruel and unusual punishment, arguing that public sentiment towards electrocution had changed in recent years. Id. at 1258. We held, \\\"While we recognize the strong national trend toward lethal injection as the most appropriate form of capital punishment . execution of a death sentence by electrocution does not violate the Eighth Amendment of the United States Constitution or Article 1, \\u00a7 16, of the Indiana Constitution.\\\" Id. (footnote omitted).\\n. In her complaint, Ratliff states that her claim is a \\\"civil rights action to enforce the . federal constitution[].\\\" Record at 12 (Complaint of Donna Ratliff, \\u00b6 3). She sued the Commissioner of the Department of Correction \\\"in his individual and official capacities under plaintiff's federal claim.\\\" Id. at 13 (\\u00b6 5). She alleged that his actions \\\"were taken under color of state law,\\\" id. at 16 (\\u00b6 22) and that the Due Process Clause of the Fourteenth Amendment was violated. Id. at 12, 14 (\\u00b6\\u00b6 1, 14). As in Madrid, this is sufficient to raise this claim. See Matter of Tina T., 579 N.E.2d 48, 62 (Ind.1991) (\\\"A claim for relief under \\u00a7 1983 need allege only that some person acting under color of state law has deprived the claimant of a federal right.\\\").\\n. However, \\\"[t]he Eighth Amendment does not require that prison officials provide the most desirable medical and mental health care; nor should judges simply 'constitutionalize' the standards set forth by professional associations such as the American Medical Association or the American Public Health Association.\\\" Madrid, 889 F.Supp. at 1256 (citations omitted).\\n. \\\"Indicia of 'serious' medical need include '[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain....' \\\" Madrid, 889 F.Supp. at 1255 n. 201.\\n. Her treatment in prison consists of participating in two one-hour group therapy sessions, one dealing with \\\"sexually-abused women who have unresolved issues contributing toward criminal behavior\\\" and another dealing with \\\"issues of personal responsibility, behavioral change and complicated grief among women who have taken the life of a significant other.\\\" Record at 15 (Complaint of Donna Ratliff, \\u00b6 17). She also receives ninety minutes a month in individual consultation with the prison psychologist. Id.\\n. The terms treatment, training, habilitation, and programs are used synonymously throughout the opinion. See Youngberg, 457 U.S. at 311, 102 S.Ct. at 2455, 73 L.Ed.2d at 34 (\\\"[Plaintiff] uses 'treatment' as synonymous with 'habilitation' or 'training.' \\\"). The Court primarily used the words \\\"training\\\" and \\\"habilitation\\\" in its opinion, noting that \\\"The word 'habilitation,' . is commonly used to refer to programs for the montally-retarded because mental retardation is . a learning disability and training impairment rather than an illness. [T]hc principal focus of habilitation is upon training and development of needed skills.\\\" Id. at 309, 102 S.Ct. at 2454, 73 L.Ed.2d at 33.\\n. The Court found that, with regard to this third liberty interest, the State must provide such treatment \\\"as an appropriate professional would consider reasonable to ensure his safety and to facilitate his ability to function free from bodily restraints.\\\" Id. at 324, 102 S.Ct. at 2462, 73 L.Ed.2d at 42-43.\\n. Ratliff's additional citations to K.H. Through Murphy v. Morgan, 914 F.2d 846, 856 (7th Cir.1990) and Madrid v. Gomez, 889 F.Supp. 1146 (N.D.Cal.1995), mandamus denied sub nom., Wilson v. U.S. Dist. Court for the E. Dist. of Cal., 103 F.3d 828 (9th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 1823, 137 L.Ed.2d 1031 (1997), arc not persuasive.\\nRatliff cites Murphy as requiring \\\"the responsible state officials to take steps to prevent children in state institutions from deteriorating physically or psychologically.\\\" Murphy, 914 F.2d at 851. This is not entirely accurate. Murphy involved the placement of foster children in scxually-abu-sivc homes. The Seventh Circuit found, \\\"Young-berg v. Romeo made clear . that the Constitution requires the responsible state officials to take steps to prevent children in state institutions from deteriorating physically or psychologically.\\\" Murphy, 914 F.2d at 851. The Seventh Circuit did not grant a new liberty interests regarding a general right to treatment \\u2014 as Ratliff contends \\u2014 but, rather, the statement is inherently limited by Youngberg to situations where the physical or psychological deterioration is caused by the deprivation of the \\\"constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrcstrictive confinement conditions, and such training [treatment] as may be required by these interests.\\\" Young-berg, 457 U.S. at 324, 102 S.Ct. at 2462, 73 L.Ed.2d at 42-43 (emphasis added). This limitation is entirely consistent with Murphy itself, as the plaintiff's complaint focused on her placement in the care of foster homes and she claimed her deterioration was not the result of the state's failure to provide generalized treatment, but rather was the result of the state's failure to provide conditions of reasonable care and safety. See Murphy, 914 F.2d at 851 (\\\"Ours is the . case in which the state places the child in a private foster home or sequence of such homes and fails to take steps to prevent the child from deteriorating physically or psychologically as a result of either mistreatment by one or more sets of foster parents or the frequency with which the child is moved about within the foster-home system or, as in this case, both.\\\"). See also Barichello v. McDonald, 98 F.3d 948, 953 (7th Cir.1996) (rejecting plaintiff's \\\"liberty interest in rehabilitative treatment\\\" because \\\"Youngberg only held . that mental patients had liberty interests in 'safety' and 'freedom from bodily restraint.' \\\").\\nRatliff also cites Madrid for the proposition that, \\\"This duty to prevent deterioration has been extended to protect inmates with psychological problems in correctional settings.\\\" Brief of Appellant at 19. However, Madrid is not persuasive in this context because it involves an Eighth Amendment claim, not a Fourteenth Amendment claim.\"}"

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+"{\"id\": \"11838505\", \"name\": \"Robert BRYANT and Richard Boucher, Appellants-Plaintiffs, v. INDIANA STATE DEPARTMENT OF HEALTH, Appellee-Defendant\", \"name_abbreviation\": \"Bryant v. Indiana State Department of Health\", \"decision_date\": \"1998-05-21\", \"docket_number\": \"No. 49A05-9706-CV-250\", \"first_page\": \"975\", \"last_page\": \"979\", \"citations\": \"695 N.E.2d 975\", \"volume\": \"695\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:29:49.714849+00:00\", \"provenance\": \"CAP\", \"judges\": \"SHARPNACK, C.J., and RUCKER, J., concur.\", \"parties\": \"Robert BRYANT and Richard Boucher, Appellants-Plaintiffs, v. INDIANA STATE DEPARTMENT OF HEALTH, Appellee-Defendant.\", \"head_matter\": \"Robert BRYANT and Richard Boucher, Appellants-Plaintiffs, v. INDIANA STATE DEPARTMENT OF HEALTH, Appellee-Defendant.\\nNo. 49A05-9706-CV-250.\\nCourt of Appeals of Indiana.\\nMay 21, 1998.\\nDennis K. Frick, Claire E. Lewis, John T. Greiner, Legal Services Organization of Indiana, Indianapolis, for Appellants-Plaintiffs.\\nJulia Blackwell Gelinas, David E. Jose, Locke Reynolds Boyd & Weisell, Indianapolis, for Evergreen Healthcare Ltd. d/b/a Beech Grove Healthcare Center.\\nJeffrey A. Modisett, Attorney General, Carol A. Nemeth, Deputy Attorney General, Indianapolis, for Indiana State Department of Health.\", \"word_count\": \"2082\", \"char_count\": \"13601\", \"text\": \"OPINION\\nRATLIFF, Senior Judge.\\nCase Summary\\nPlaintiffs Robert Bryant and Richard Boucher appeal from the trial court's findings of fact and conclusions of law on judicial review affirming the Indiana State Department of Health's administrative .determination that the plaintiffs' involuntary transfer from the Beech Grove Healthcare Center (the \\\"Center\\\") was in compliance with Indiana's regulations. .We affirm.\\nIssue\\nPlaintiffs raise one issue for our review which we restate as whether the Center proved by a preponderance of the evidence that it could not meet its ventilator-dependent residents' needs and that transfer to other facilities was necessary for the resi dents' welfare due to the closing of the Center's ventilator unit.\\nFacts and Procedural History\\nIn 1990, the Center established a ventilator unit and began accepting residents who were ventilator-dependent. An outside contractor provided specialized respiratory care twenty-four hours a day for those residents. The Center was reimbursed by Medicaid for the cost of having two respiratory therapists present twenty-four hours a day for the Center's seven ventilator-dependent residents. In 1995, Medicaid reimbursement rules were changed, reducing the hours for which the Center could be reimbursed for ventilator care to cover the cost of only one therapist for twelve hours a day. Both the Center and its outside contractor believed that ventilator-dependent residents required twenty-four hour specialized care, and therefore, the Center decided to close its ventilator unit. The Center issued the notices required for involuntary transfer to its residents, stating that \\\"this facility is closing the ventilator unit. Therefore we can no longer meet your medical needs.\\\" R. 824, 834. Although the unit was to officially close on March 10, 1995, the Center was willing to continue to provide ventilator care on an emergency basis until all residents had been transferred to appropriate facilities.\\nPlaintiffs filed a notice of appeal with the Department of Health requesting a hearing on the proposed transfer. Following the hearing, the hearing officer determined that the Center had proven by a preponderance of the evidence that its transfer of the ventilator-dependent residents was within the confines of 410 Ind.Admin.Code 16.2 \\u2014 2\\u20143(i)(4), which defines the reasons for which nursing facility residents can be transferred or discharged.\\nPlaintiffs then requested an administrative appeal of the hearing officer's decision. The Department of Health appointed an administrative law judge, who held a hearing and then issued a recommended order upholding the hearing officer's decision. The ALJ specifically adopted the hearing officer's findings of fact, and added the following finding: \\\"The facts as stated in the foregoing findings of fact substantiate the need for transfer of the resident under 410 IAC 16.2-2-3(i)(4)(A).\\\" The ALJ also adopted the hearing officer's conclusions of law, adding the following conclusion: \\\"The termination of ventilator services effectively renders Beech Grove Healthcare Center incapable of meeting the resident's needs within the meaning of 410 IAC 16.2-2-3(i)(4)(A).\\\" R. 354-56. The ALJ's recommended order was adopted by an Appeals Panel as the final order of the Department of Health. R. 409-10.\\nPlaintiffs then filed a petition for judicial review. After oral argument, the trial court issued its Findings of Fact and Conclusions of Law entering judgment in favor of the Department of Health and the Center. This appeal ensued in due course.\\nDiscussion and Decision\\nA nursing facility cannot transfer or discharge a resident from the facility unless, among other reasons, \\\"the transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility-\\\" 410 Ind.Admin.Code 16.2-2-3(i)(4)(A). Plaintiffs argue that the Center did not prove that their needs could not be met in the facility and that transfer was necessary for their welfare. Plaintiffs base their argument upon a literal interpretation of the word \\\"cannot\\\" as used in the regulation: they urge us to construe the regulation such that once a nursing facility has undertaken to provide an optional service, it cannot choose at a later time to discontinue that service, because it is able to continue to meet its residents' needs, as evidenced by its past provision of the service. Both the Center and the Department of Health respond that, because no state or federal law requires a nursing facility to provide ventilator services, the Center could close its ventilator unit at any time, and especially once a change in the reimbursement rules made it either financially burdensome or medically unsafe to continue to provide the service. The Center and the Department of Health assert that upon deciding to close the unit, the Center became unable to meet its residents' needs and transfer was necessary for their welfare, and the only restriction upon the Center's decision was that it follow the proper procedures for an involuntary transfer of its ventilator-dependent residents, as found in 410 Ind.Admin.Code 16.2 \\u2014 2\\u2014B(i).\\nA court reviewing an administrative decision is limited to determining whether the agency possessed jurisdiction over the subject matter, and whether the agency's decision was made upon substantial evidence, was not arbitrary or capricious, and was not in violation of any constitutional, statutory or legal principles. Ind.Code \\u00a7 4-21.5-5-14; Indiana Dep't of Natural Resources v. United Refuse Co., 615 N.E.2d 100, 103 (Ind.1993). The trial court proceeding is not intended to be a trial de novo, but rather the court simply analyzes the record as a whole to determine whether the administrative findings are supported by substantial evidence. Natural Resources Comm'n v. Sugar Creek Mobile Estates, 646 N.E.2d 61, 64 (Ind.Ct.App.1995), reh'g denied, trans. denied. Courts that review administrative determinations, at both the trial and appellate level, are prohibited from reweighing the evidence and judging the credibility of witnesses and must accept the facts as found by the administrative body. Id. Although a reviewing court owes some deference to an administrative agency's findings of fact, no such deference need be accorded an agency determination of a matter of law. Indiana Dep't of Public Welfare v. Payne, 622 N.E.2d 461, 465 (Ind.1993).\\nThis case turns on the construction of the phrase \\\"cannot meet the resident's needs\\\" as used in the regulation governing involuntary transfer. .Rules of statutory construction are also applicable to the interpretation of administrative regulations. State v. Carmel Healthcare Management, Inc., 660 N.E.2d 1379, 1386 (Ind.Ct.App.1996). \\\"The cardinal rule of statutory construction is to ascertain the intent of the drafter....\\\" Id. We ascertain intent by giving effect to the ordinary and plain meaning of the language used. Clifft v. Indiana Dep't of State Revenue, 660 N.E.2d 310, 316 (Ind.1995). We give words their common and ordinary meaning, without \\\" 'overemphasizing a strict literal or selective reading of individual words.' \\\" Spaulding v. Int'l Bakers Serv., 550 N.E.2d 307, 309 (Ind.1990) (quoting Foremost Life Ins. Co. v. Dept. of Ins., 274 Ind. 181, 186, 409 N.E.2d 1092, 1096 (1980)). When a regulation is susceptible to more than one interpretation, we may consider the consequences of a particular interpretation. Carmel Healthcare Management, Inc., 660 N.E.2d at 1386.\\nIn support of their argument that the Center was required to continue providing ventilator services because it was able to, Plaintiffs cite In the Matter of the Involuntary Discharge or Transfer of J.S. by Hall, 512 N.W.2d 604, 612 (Minn.Ct.App.1994). In J.S., the Commissioner of Health determined that a nursing facility could not involuntarily transfer a resident because the facility had failed to prove that the transfer was necessary for her welfare and that it could not m\\u00e9et her needs. The Minnesota Court of Appeals affirmed the Commissioner's determination, but noted that it was a \\\"close case.\\\" Id. at 612. The facility had attempted to transfer J.S. because \\\"it was not equipped to care for unstabilized mentally ill residents.\\\" Id. at 608. However, the facility had a duty under both federal and state law to provide mental health services, and under federal law, was required to conduct periodically a comprehensive assessment of each resident's functional capacity and develop a comprehensive plan to meet the resident's needs. Id. at 609, 611 (citing 42 C.F.R. \\u00a7 483.20). The Commissioner determined that the facility had not adequately proven that it had properly assessed J.S.'s mental and physical health or that it had developed a care plan for J.S. and therefore, had not proven that it could not meet her needs. The court upheld this determination, stating that in the absence of clinical evidence that the facility had exhausted all required avenues of assessment, it was not entitled to elect the \\\"last resort\\\" \\u2014 transfer. Id. at 612. Had the facility conducted the required assessment, the care plan could have included transfer, however. Id.\\nJ.S. does not provide clear support for the plaintiffs' position. In contrast, the evidence in the record before us demonstrates that ventilator-dependent residents require specialized, around-the-clock care, because ventilators are life-support devices. A ventilator-dependent resident's condition could change significantly at any time, and specially-trained personnel are required to assess the situation and respond accordingly. This evidence supports the Department of Health's determination that the closing of the ventilator unit effectively rendered the Center incapable of meeting its ventilator-dependent residents' needs within the meaning of the regulation. No state or federal regulations required the Center to provide the ventilator services. The Center provided to each resident the notice required by regulation in order to involuntarily transfer him or her from the facility. Each resident's doctor had documented that transfer was medically necessary due to the closing of the unit. R. 833, 842. Further, in contrast to the Plaintiffs' assertion that their welfare was not considered in the transfer decision, it was the welfare of the residents which in part prompted the closing of the unit \\u2014 the Center believed that anything less than twenty-four hour respiratory care for its ventilator-dependent residents would be medically inadequate. The choice presented to the Center by the change in Medicaid reimbursement rules was either to provide only that care for which it would be reimbursed and put its residents at risk, or provide the care it believed necessary and suffer financially.\\nWe do not believe that the use of the phrase \\\"the resident's needs cannot be met\\\" in the regulation defining the limited instances in which a resident may be involuntarily transferred was intended to force a nursing facility to provide care which it is theoretically able to provide, regardless of the consequences. The Center was entitled to make the decision to close its ventilator unit, subject only to the requirements of 410 Ind.Admin.Code 16.2-2-3\\u00a9 regarding documenting the residents' clinical records, giving adequate notice and an opportunity for an appeal hearing, and preparation of and assistance in implementing a relocation plan. Having made that decision, the Center became medically unable to care for its ventilator-dependent residents, and transfer of the residents to other facilities was necessary for their welfare. Plaintiffs' transfer from the Center was accomplished in compliance with 410 Ind.Admin.Code 16.2-2-3\\u00ae, and the decision of the Department of Health and the trial court that such transfer was allowed was not in error.\\nAffirmed.\\nSHARPNACK, C.J., and RUCKER, J., concur.\\n.All seven ventilator-dependent residents of the Center were parties to the informal appeal hearing. Mr. Bryant, Mr. Boucher and two other residents, Georgetta Wood and Nancy Brown, then appealed the hearing officer's decision to the Department of Health. Ms. Wood was dismissed from the administrative appeal after her death. Thereafter, Mr. Bryant, Mr. Boucher and Ms. Brown petitioned for judicial review of the administrative decision. Ms. Brown was dismissed from that case after her death. For purposes of this opinion, all references to the \\\"plaintiffs\\\" refer only to Mr. Bryant and Mr. Boucher at all stages of the proceedings.\\n. The \\\"transfer\\\" of a resident from a nursing facility is defined as the movement of a resident from a skilled nursing facility to another institutional setting. 42 C.F.R. \\u00a7 483.202. A \\\"discharge\\\" is the movement of resident from a skilled nursing facility to a noninstitutional setting. Id. Therefore, although the applicable regulation addresses both, this proceeding is concerned with a \\\"transfer\\\" rather than a \\\"discharge.\\\"\\n. Plaintiffs' request for Oral Argument is denied.\"}"

ind/11872143.json

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+"{\"id\": \"11872143\", \"name\": \"Alice Jean SMITH and Richard Smith, Appellants-Plaintiffs, v. STANDARD LIFE INSURANCE COMPANY OF INDIANA, P.K. of Zionsville, Inc., Glenn W. Foster & Associates, Gary Keller d/b/a Grass Eaters Lawn Care, and Grass Eaters Lawn Care, Appellees-Defendants\", \"name_abbreviation\": \"Smith v. Standard Life Insurance\", \"decision_date\": \"1997-10-31\", \"docket_number\": \"No. 06A01-9609-CV-293\", \"first_page\": \"214\", \"last_page\": \"219\", \"citations\": \"687 N.E.2d 214\", \"volume\": \"687\", \"reporter\": \"North Eastern Reporter 2d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T20:34:23.423869+00:00\", \"provenance\": \"CAP\", \"judges\": \"BAKER and KIRSCH, JJ., concur.\", \"parties\": \"Alice Jean SMITH and Richard Smith, Appellants-Plaintiffs, v. STANDARD LIFE INSURANCE COMPANY OF INDIANA, P.K. of Zionsville, Inc., Glenn W. Foster & Associates, Gary Keller d/b/a Grass Eaters Lawn Care, and Grass Eaters Lawn Care, Appellees-Defendants.\", \"head_matter\": \"Alice Jean SMITH and Richard Smith, Appellants-Plaintiffs, v. STANDARD LIFE INSURANCE COMPANY OF INDIANA, P.K. of Zionsville, Inc., Glenn W. Foster & Associates, Gary Keller d/b/a Grass Eaters Lawn Care, and Grass Eaters Lawn Care, Appellees-Defendants.\\nNo. 06A01-9609-CV-293.\\nCourt of Appeals of Indiana.\\nOct. 31, 1997.\\nPaul S. Kruse, Anthony W- Patterson, Parr Richey Obremskey & Morton, Lebanon, for Appellants-Plaintiffs.\\nTodd J. Kaiser, Nicholas C. Pappas, Sandra Boyd Williams, Locke Reynolds Boyd & Weisell, Indianapolis, for Appellees-Defen-dants.\", \"word_count\": \"2151\", \"char_count\": \"13196\", \"text\": \"OPINION\\nNAJAM, Judge.\\nSTATEMENT OF THE CASE\\nAlice Jean Smith (\\\"Smith\\\") slipped and fell on an icy sidewalk outside of Hook Drugs, Inc. (\\\"Hook's\\\"). Smith was an employee of Hook's-at the time of her fall. She and her husband, Richard Smith, filed a complaint against Standard Life Insurance Company of Indiana (\\\"Standard Life\\\"), the owner and lessor of the premises. The trial court entered summary judgment in favor of Standard Life, and Smith now appeals. The dis-positive issue presented for our review is whether Smith, as an employee of the tenant, qualifies as a \\\"third person\\\" under the public use exception to the general rule of non-liability for landlords.\\nWe affirm.\\nFACTS\\nIn 1979, Standard Life purchased a building from Hook's in Zionsville and immediately leased it back to Hook's. Under a twenty-year written lease, Standard Life surrendered complete possession and control of the entire premises to Hook's. Standard Life did not participate in the design or construction of the building, which was erected in 1975. Hook's sublet an area to Pizza King Village Station (\\\"Pizza King\\\"). Pizza King is located in a part of the building adjacent to and set back from that part occupied by Hook's.\\nHook's hired Smith in 1979, and she worked as a cashier in the Zionsville location continuously except for one four-month period. Smith would frequent Pizza King for lunch and always walked the same route. During Smith's employment, the manager of Hook's had consistently removed snow and ice from the sidewalk. Smith had also performed that task on occasion. However, Smith and her co-workers removed snow and ice only from the area directly in front of the Hook's store.\\nOn February 23, 1993, Smith was injured when she slipped and fell on an icy area of the sidewalk between Hook's and Pizza King. Subsequently, Smith filed a complaint against several defendants, including Standard Life. Smith alleged that Standard Life had breached its duty of reasonable care when it knew or should have known at the time of the lease that a dangerous condition existed on the premises and was negligent because it had failed to remove accumulations of snow and ice from the sidewalk. Specifically, Smith alleged that a drain spout had directed water onto the sidewalk in- a concentrated area, which caused ice to form, and that Standard Life either knew about or should have discovered the condition.\\nStandard Life filed a Motion for Summary Judgment, which the trial court granted. Smith now appeals.\\nDISCUSSION AND DECISION\\nStandard of Review\\nThe purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law. Monon Corp. v. Townsend, 678 N.E.2d 807, 809 (Ind.Ct.App.1997), trans. denied. Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. Id. The movant bears the burden of establishing the propriety of summary judgment, and all facts and inferences to be drawn therefrom are viewed in the light most favorable to the non-movant. Ramon v. Glenroy Constr. Co., 609 N.E.2d 1123, 1127 (Ind.Ct.App.1993), trans. denied.\\nWhen reviewing a decision upon a motion for summary judgment, this court applies the same standard as the trial court. Miller Brewing Co. v. Bartholomew Co. Beverage Co., Inc., 674 N.E.2d 193, 198 (Ind.Ct.App.1996), trans. denied. We stand in the shoes of the trial court and liberally construe all designated evidentiary material in favor of the nonmoving party. Rotec, Div. of Orbitron, Inc. v. Murray Equip., Inc., 626 N.E.2d 533, 535 (Ind.Ct.App.1993). In order to prevail on appeal when a summary judgment motion has been granted in favor of an opposing party, the appealing party must establish the existence of a genuine issue of material fact from materials designated to the trial court. Thompson v. Murat Shrine Club, Inc., 639 N.E.2d 1039, 1040 (Ind.Ct.App.1994), trans. denied. Where the facts are not in dispute, summary judgment is inappropriate only when the fact-finder may reasonably draw conflicting inferences from the undisputed facts. Nobles v. Cartwright, 659 N.E.2d 1064, 1071 (Ind.Ct.App.1995).\\nPremises Liability: General Rule of Non-Liability for Landlords\\nSmith's complaint \\u2022 alleges that Standard Life breached its duty of reasonable care when it knew or should have known of the dangerous condition at the time of the lease. Smith further asserts that Standard Life was negligent for failing to remove accumulations of snow and ice and for permitting the dangerous condition to continue. The tort of negligence is comprised of three elements: (1) a duty owed to the plaintiff, (2) a breach of that duty by the defendant, (3) which proximately causes the plaintiffs damage. Pitcock v. Worldwide Recycling, Inc., 582 N.E.2d 412, 414 (Ind.Ct.App.1991). Whether a duty exists is a question of law for the court to decide. Id. The duty that a landlord owes to tenants or third parties lawfully upon the leased premises was discussed in Rogers v. Grunden, 589 N.E.2d 248 (Ind.Ct.App.1992), trans. denied, in which we stated:\\nThe law of this jurisdiction is clear; as a general rule, in the absence of statute, covenant, fraud or concealment, a landlord who gives a tenant full control and possession of the leased property will not be hable for personal injuries sustained by the tenant or other persons lawfully upon the leased property. Generally, once possession and control of property have been surrendered, a landlord does not owe a duty to protect tenants from defective conditions.\\nId. at 254 (citations omitted).\\nThe parties do not dispute that Standard Life had relinquished complete possession and control of the premises to Hook's. Specifically, pursuant to the lease, Hook's accepted \\\"the premises in their [sic] present condition\\\" and agreed to \\\"keep [it] in good condition and repair.\\\" Hook's also retained the right to alter the premises. Consequently, Hook's was responsible for the maintenance and repair of the building and typically dispatched its own maintenance workers to make improvements or repairs. Further, Hook's employees removed the snow and ice from the sidewalk, and the store manager made certain that the sidewalk in front of Hook's was clear of snow and ice prior to opening for business each day. Given these undisputed facts, under the general rule of non-liability for landlords, Standard Life did not owe Smith a duty.\\nThe Public Use Exception\\nStill, Smith asserts that summary judgment is precluded in that the \\\"public use\\\" exception to the general rule of landlord non-liability applies and creates a duty owed by Standard Life to Smith. Specifically, Smith maintains that Standard Life leased the property to Hook's for a public purpose and that a material issue of fact exists as to whether, at the time of the lease, a dangerous condition existed which rendered the premises unsafe for public use. Smith further alleges that Standard Life knew about or should have discovered the condition by the exercise of reasonable care. Finally, Smith contends that she qualifies as a \\\"third person\\\" protected by the public use exception.\\nThe public use exception, which we first recognized in Walker v. Ellis, 126 Ind.App. 353, 129 N.E.2d 65 (1955), trans. denied, provides:\\nWhere premises are leased for public or semi-public purposes, and at [the] time of lease[,] conditions exist which render premises unsafe for purposes intended, or constitute a nuisance, and landlord knows or by exercise of reasonable care ought to know of conditions, and a third person suffers injury on account thereof, landlord is liable, because [the] third person is there at invitation of landlord, as well as of tenant.\\nId. at 73 (citations omitted). In order for the public use exception to apply, Smith must designate evidence of the following facts in the record: (1) the property was leased for a public purpose, (2) a condition existed at the time of the lease which rendered the premises unsafe and the landlord knew or should have known of the condition by the exercise of reasonable care, and (3) a third person was injured because of the existing condition. Id. The parties dispute whether the premises were leased for a public purpose and whether Standard Life knew or should have known of the alleged dangerous condition. We need not consider whether these are disputed issues of material fact because the dispositive issue in this case is whether Smith qualifies as a \\\"third person\\\" under the public use exception.\\n\\\"Third Person\\\" Requirement\\nIn order to invoke the public use exception, Smith must demonstrate that as an employee of Hook's she qualifies as a \\\"third person.\\\" Smith argues that she is a third person because she was .injured on the sidewalk outside of the area occupied by Hook's. Standard Life counters that Smith was injured during the course of her employment and does not qualify as a third person under the exception. We agree with Standard Life.\\nIn Walker, the leading Indiana case that discusses the public use exception, we recognized that a landlord may be liable to a \\\"third person\\\" when premises are leased for public use because the third person is there at the invitation of both the landlord and the tenant. Walker, 129 N.E.2d at 73. The plaintiff in Walker was a customer of the tenant. Here, in contrast, Smith was on the premises as an employee of Hook's and not at the invitation of Standard Life.\\nThe parties dispute whether in Place v. Sagamore, 604 N.E.2d 671 (Ind.Ct.App.1992), trans. denied, we decided that an employee of the tenant did not qualify as a \\\"third person\\\" under the public use exception. Although we expressed our doubts that the exception applied, our decision in Place was based primarily on other grounds, namely, that Place had failed to allege any facts indicating that the landlord had leased the premises to Place's employer for a public purpose. Id. at 675. Thus, we consider this a case of first impression.\\nThe definition of a third person on business premises that are open to the public is found in the Restatement (Second) of Torts:\\nb. \\\"Third persons\\\" include all persons other than the possessor of the land, or his servants acting within the scope of their employment. It includes such servants when they are acting outside of the scope of their employment, as well as other invitees or licensees upon the premises, and also trespassers on the land, and even persons outside of the land whose acts endanger the safety of the visitor.\\nRestatement (Second) of ToRts \\u00a7 344 emt.b (1965). Both our supreme court and this court have previously relied on the Restatement (Second) of Torts in resolving premises liability questions. See Burrell v. Meads, 569 N.E.2d 637, 642 (Ind.1991) (incorporating Restatement (Second) of Torts \\u00a7 332 in adopting the \\\"invitation test\\\" for use in determining who qualifies as an invitee in premises liability actions); see also Frye v. Rumbletown Free Methodist Church, 657 N.E.2d 745, 750 (Ind.Ct.App.1995) (adopting Restatement (Second) of Torts \\u00a7 330 in determining that Indiana recognizes the privilege to enter another's land implied by custom). We agree with the Restatement (Second) of Torts \\u00a7 344, comment b, and adopt the Restatement definition of who qualifies as a \\\"third person\\\" under the public use exception.\\nSmith argues that she is a \\\"third person\\\" because her injury occurred outside the area occupied by Hook's rather than inside the store. We are not persuaded by her argument. While Standard Life owns the premises, the lease gave Hook's complete possession and control. Regardless of the exact location where her injury occurred, Smith was on the premises controlled by Hook's when she was injured, and there is no dispute that she was acting within the scope of her employment at the time she sustained her injury. Thus, Smith is not a stranger to the lease and does not qualify as a third person under the Restatement (Second) of Torts \\u00a7 344 definition.\\nWe conclude that Smith has failed to meet the \\\"third person\\\" requirement of the public use exception, and, therefore, that the exception does not apply. Standard Life owes no duty to Smith under the exception. The trial court did not err in granting summary judgment in favor of Standard Life.\\nAffirmed.\\nBAKER and KIRSCH, JJ., concur.\"}"

ind/12169658.json

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+"{\"id\": \"12169658\", \"name\": \"Olive H. Jones, Administratrix of the Estate of Dareld James Jones, Deceased v. Indianapolis Power & Light Co., Combustion Engineering, Inc.\", \"name_abbreviation\": \"Jones v. Indianapolis Power & Light Co.\", \"decision_date\": \"1973-12-13\", \"docket_number\": \"No. 2-672-A26\", \"first_page\": \"676\", \"last_page\": \"691\", \"citations\": \"158 Ind. App. 676\", \"volume\": \"158\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T01:45:27.477647+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sullivan and White, JJ., concur.\", \"parties\": \"Olive H. Jones, Administratrix of the Estate of Dareld James Jones, Deceased v. Indianapolis Power & Light Co., Combustion Engineering, Inc.\", \"head_matter\": \"Olive H. Jones, Administratrix of the Estate of Dareld James Jones, Deceased v. Indianapolis Power & Light Co., Combustion Engineering, Inc.\\n[No. 2-672-A26.\\nFiled December 13, 1973.\\nRehearing denied February 21, 1974.\\nTransfer denied May 17, 1974.]\\nPaul G. Smith, Smith, Pearce & Barr, of Noblesville, Gleason, Woods & Johnson, of Indianapolis, for appellant.\\nErie A. Kightlinger, Howard J. DeTrude, Jr., John T. Lorenz, Kightlinger Young Gray & DeTrude, of Indianapolis, for appellee.\", \"word_count\": \"4167\", \"char_count\": \"25845\", \"text\": \"CASE SUMMARY\\nBuchanan,\\nP.J.\\u2014Plaintiff-Appellant Olive Jones (Jones) appeals from a judgment on the evidence entered by the trial court in a Wrongful Death action brought by her against Defendant-Appellee Indianapolis Power and Light Company (Ipalco), claiming that sufficient evidence was presented from which the jury could have found Ipalco negligent in causing the death of her husband (decedent), who was employed by a contractor retained by Ipalco to supply and install steam generating equipment.\\nWe affirm.\\nFACTS\\nThe evidence most favorable to Jones' case is:\\nIn March of 1968 Ipalco completed construction of Unit I of a power plant on land it owned in Petersburg, Indiana. Thereafter, construction began on Unit II, and on March 25, 1968 the accident occurred which resulted in the death of Jones' husband, Dareld James Jones (Decedent).\\nIn connection with this construction project, Ipalco retained the services of Stone and Webster Engineering Corporation to prepare plans and specifications and act as supervisors of construction. As between Ipalco and Stone and Webster, Ipalco retained the power to award contracts and direct the progress of construction.\\nIpalco contracted directly with several contractors to erect Unit II, including Combustion Engineering, Inc. (Combustion), Decedent's employer. Combustion was employed to sup ply and install steam generating equipment (boiler and ash hopper). Two contracts were executed between Ipalco and Combustion\\u2014one a \\\"material only'' contract by the terms of which Combustion was to furnish boiler equipment, and the second contract provided for the installation of the boiler equipment.\\nThese two contracts and purchase orders issued thereunder contained provisions that:\\nAll work to be done under the general supervision of Ipalco's engineers (Stone & Webster).\\nAll work to comply with local ordinances, rules, regulations and statutes of the State of Indiana which were incorporated by reference.\\nAll Combustion and Stone & Webster's employees to comply with all regulations of Ipalco regarding admission to the property.\\nWork to be performed under the direction and to the satisfaction of Ipalco and/or its engineer (Stone & Webster). Combustion to conduct its operation so as to provide maximum safety for all employees and comply with all safety regulations of applicable laws as prescribed by Ipalco or its engineer, and promptly correct any unsafe conditions when directed to do so by the engineer.\\nWork coordination and scheduling to be subject to check by Stone & Webster.\\nCombustion to furnish and maintain all labor and special tools necessary for complete installation, including hoisting and hauling equipment.\\nTo assist in installation of the generating equipment, Combustion installed a man and materials hoist on the exterior of the plant under construction. This hoist, or electrically operated elevator, was owned by Combustion and was inspected and maintained and used exclusively by its employees.\\nDecedent was employed by Combustion to operate this hoist.\\nOn the morning of March 25, 1968, Decedent commenced operation of the hoist at about 8:00 A.M. and about 9 :00 A.M., after he had taken a load of men approximately 100 feet above the ground, the hoist stuck. Because the voice communication system was not operative, Decedent signaled by the use of gestures to Combustion ground-level employees that the hoist would not move. They then manipulated master override controls at the base of the hoist which caused the hoist car to descend about six feet where it came to rest upon Decedent, crushing him between the top of the car and the floor landing. Apparently he was trapped, with part of his body inside the hoist car and part on the floor landing when the car descended.\\nDecedent subsequently died from injuries thus received on April 18, 1968.\\nIt was determined that the hoist stuck because a limit control switch on top of the hoist car became clogged with ice and snow; when cleaned away the hoist operated properly.\\nNo warning devices were installed in the hoist car nor was a Combustion-owned public address system functional.\\nAll persons involved in this episode were Combustion employees. The protective fencing around the base of the hoist carried the sign \\\"C. E. Employees Only.\\\"\\nIpalco's sole employee on the job site, the field engineer, was not present when Decedent sustained his injuries nor had he ever inspected or examined the hoist for safety although he did have some knowledge of prior malfunction of the hoist due to the frozen limit control switch.\\nJones, as the Administratrix of this Estate, brought this Civil Action under the Indiana Wrongful Death Statute against Ipalco alleging its negligence both directly and by imputation from Combustion.\\nThe case was tried before a Jury and at the conclusion of Plaintiff's evidence, Ipalco moved for judgment on the evidence which motion the trial court granted. This appeal followed.\\nISSUES\\nThe issues raised by the parties may be consolidated thusly:\\nISSUE ONE. Was there any evidence that Ipalco retained sufficient control over the manner and means of the performance of work under the contracts so as to render Ipalco liable for Combustion's negligence?\\nISSUE TWO. Was there any evidence which could sustain Ipalco's liability under any exception to the rule exempting it from liability for the death or injury to a servant of an independent contractor ?\\nAs to ISSUE ONE, Jones contends that under the contracts between Ipalco and Combustion, Ipalco retained sufficient control over Combustion's work to render it liable for Combustion's negligence.\\nIn response, Ipalco contends that the contract did not give Ipalco the right to control the manner and means of Combustion's performance of the work. Because of this absence of control, Ipalco argues, Combustion was an independent contractor and not a mere servant of Ipalco, and therefore its negligence (if any) may not be imputed to Ipalco.\\nAs to ISSUE TWO, Jones maintains that, even if Combustion's role was that of an independent contractor, the evidence would warrant allowing the case to go to the jury because of certain exceptions to the general rule of non liability of an employer of an independent contractor for the latter's torts. These exceptions impose liability upon the employer (1) if the contract requires the performance of work intrinsically dangerous or (2) if the employer is charged by law or contract with the specific duty in question or (3) if the act to be performed will probably cause injuries to others unless due precaution is taken to avoid harm.\\nUnder exception two Jones claims Ipalco was obligated under a specifically legally imposed duty to provide Decedent a safe place to work which duty was breached. Also, the Dangerous Occupation Act and certan administrative regulations obligated Ipalco to insure that the hoist equipment conformed to the specifications set out therein. And last, that the contract imposed a specific duty upon Ipalco to require precautions to be taken to assure the safety of the hoist.\\nIn response to these allegations, Ipalco contends that no evidence was presented from which a jury could find that a duty was owed by it to the Decedent under any of these exceptions.\\nJones raises other questions in her brief which are either unsubstantial or have been waived pursuant to Rule AP. 8.3(A).\\nDECISION\\nAs consideration of the issues raised by this appeal necessarily involves the propriety of entering a judgment on the evidence in favor of a Defendant (Ipalco) at the close of Plaintiff's (Jones) case, a statement of the appellate rule governing our review of the trial court's action is appropriate:\\n\\\" 'On appeal we will consider only the evidence most favorable to the party against whom the Motion for Directed Verdict was made and all reasonable inferences from such evidence. (Citations omitted.)'\\n\\\"The quantum of evidence necessary for a plaintiff to avoid a directed verdict at the close of his evidence has been determined by our Supreme Court to be any evidence or legitimate inference therefrom tending to support at least one of the plaintiff's allegations. Specifically, our Supreme Court held in Hendrix v. Harbelis (1967), 248 Ind. 619, 623, 230 N.E.2d 315, 318, that:\\n\\\" 'It is only where there is a total absence of evidence or legitimate inferences in favor of plaintiff upon the issues, or where the evidence is without conflict and is susceptible of but one inference and that inference in favor of the defendant, that the court may give a preemptory instruction ' \\\" (Emphasis supplied.) Mamula v. Ford Motor Company (1971), 150 Ind. App. 179 at 181-82, 275 N.E.2d 849 at 851. See also: Wallace v. Doan (1973), 155 Ind. App. 316, 292 N.E.2d 820; Hammond v. Allegretti (1972), Ind. App., 288 N.E.2d 197; Adkins v. Elvard (1973), 155 Ind. App. 672, 294 N.E.2d 160.\\nSo, we may only reverse if after considering the evidence most favorable to Jones, there is some evidence in support of the claimed negligence of Ipalco.\\nISSUE ONE.\\nCONCLUSION\\u2014It is our opinion that there was no evidence from which a jury could find that Ipalco retained sufficient control over Combustion's work to render Ipalco vicariously liable for Combustion's negligence (if any) on the basis of respondeat superior.\\nJones grapples with the acknowledged principle that a person employing an independent contractor is usually not liable for the torts of that contractor. As such, the independent contractor's liability usually is not transferable to the employer. Gibbs v. Miller (1972), 152 Ind. App. 326, 283 N.E.2d 592; Stewart v. Huff (1938), 105 Ind. App. 447, 14 N.E.2d 322.\\nIf the employer retains sufficient right to control the work, the relationship of master-servant may arise.\\nIndiana courts have been explicit as to the control which will confer the status of independent contractor upon persons hired to do certain work. The oft-cited case of Prest-O-Lite Company v. Skeel (1914), 182 Ind. 593, 106 N.E. 365, is instructive:\\n\\\"It is well settled that where one lets a contract to another to do a particular work, reserving to himself no control over such work except the right to require it to conform to a particular standard when completed, he is not liable for the negligence of the party to whom the contract is let. An independent contractor is one exercising an independent employment under a contract to do certain work by his own methods, without subjection to the control of his employer except as to the product or result of the work. When the person employing may prescribe what shall be done, but not how it is to be done, or who is to do it, the person so employed is a contractor and not a servant. The fact that the work is to be done under the direction and to the satisfaction of certain persons representing the employer, does not render the person contracted with to do the work a servant.\\\" (Emphasis supplied.) (182 Ind. at 597, 106 N.E. at 367.) See also: Gibbs v. Miller, supra; Nash v. Meguschar (1950), 228 Ind. 216, 91 N.E.2d 361; The Vincennes Water Supply Co. v. White (1890), 124 Ind. 376, 24 N.E. 747; Clark v. Hughey (1954), 233 Ind. 134, 117 N.E.2d 360; Marion Shoe Co. v. Eppley (1914), 181 Ind. 219, 104 N.E. 65; Craybill v. Livengood (1967), 142 Ind. App. 624, 231 N.E.2d 854; Petzold v. McGregor (1931), 92 Ind. App. 528, 176 N.E. 640.\\nThe court in Prest-O-Lite also offered the following warning against an overly-restrictive contractual analysis in the determination of what form of controls the owner-contractee retained:\\n\\\"The difference between an independent contractor and a mere servant is not to be determined solely by the pretention (sic) of a certain kind or degree of supervision by the employer. It is to be determined by the contract as a whole,\\u2014by its spirit and essence,\\u2014and not by the phraseology of the single sentence or paragraph.\\\" (182 Ind. at 598, 106 N.E. at 367).\\nWhether viewed separately or as a whole, the provisions of the contracts between Ipalco and Combustion are subject to only one reasonable interpretation, i.e., Ipalco retained supervisory control of the work done by Combustion. It controlled what was done but not who did it or how it was done. Combustion's performance was required to measure up to the plans and specifications and to be coordinated with overall construction progress. Nor is there any evidence that Ipalco or its agents possessed any power to control the specific means and details of Combustion's work.\\nJones failed to present any evidence that Decedent was under the power and control of Ipalco and subject to its orders and directions in operating the hoist at the time he sustained his fatal injuries\\u2014a factor recognized as the ultimate test of control in actions of this sort. Marion Shoe Company v. Eppley, supra.\\nHaving failed to make an evidentiary showing of Ipalco's right to control, the manner and means of Combustion's or Decedent's work, Decedent was nothing more than an employee of an independent contractor. Vicarious liability may not, therefore, be imposed upon Ipalco as a matter of law. Stewart v. Huff, supra.\\nISSUE TWO.\\nCONCLUSION\\u2014It is our opinion that there was no evidence which could sustain Ipalco's liability to Jones on the basis of any exception to the general rule insulating a con-tractee from responsibility for the death or injury to a servant of an independent contractor.\\nEngrafted on the general rule that \\\"where an injury has been done by a party exercising an independent employment, the person employing him will not be liable in damages for injury or death resulting from the wrongful acts or omissions of such party, or of the servants of such party,\\\" are certain exceptions. They are enumerated in: Denneau v. Indiana and Michigan Electric Company (1971), 150 Ind. App. 615 at 620, 277 N.E.2d 8 at 12.\\n\\\"There are five (5) exceptions to the general rule that a contractee is not liable to an independent contractor's servants for injuries:\\n(1) where the contract requires the performance of work intrinsically dangerous;\\n(2) where a party is by law or contract charged with the specific duty;\\n(3) where the act will create a nuisance;\\n(4) where the act to be performed will probably cause injury to others unless due precaution is taken to avoid harm;\\n(5) where the act to be performed is illegal.\\\"\\nJones seeks to impose liability on Ipalco by virtue of these exceptions to the general rule immunizing the employer of an independent contractor from responsibility for death or injury to a servant of an independent contractor. So, we consider the exceptions claimed by Jones one by one.\\nException One. This exception applies if \\\"the contract requires the performance of work intrinsically dangerous.\\\" (Emphasis supplied.) Denneau v. Indiana and Michigan Electric Company, supra; Stewart v. Huff, supra.\\nThe contracts between Combustion and Ipalco provided for the installation of steam generating equipment. They are silent as to the erection of a man and material hoist. So there is no contract provision requiring the performance of intrinsically dangerous work, assuming such a hoist to be intrinsically dangerous.\\nHad the contracts required Combustion to install a man and materials hoist, such a device is not \\\"inherently\\\" or \\\"intrinsically\\\" dangerous within the meaning of that term. Intrinsic or inherent danger possesses a special meaning in the law. It can not be used to describe circumstances and conditions which are not natural, ever-present components of the instrumentality itself, but are merely dangers arising from casual or collateral negligence of others. Neal v. Home Builders, Inc. (1953), 232 Ind. 160, 111 N.E.2d 280; Black's Law Dictionary, P. 921 (West 4th Ed. 1951).\\nUndisputed evidence indicated the danger attending Decedent's work was not a natural, ever-present one. It was a danger arising from an ice clogged limit switch which caused the manipulation of override circuitry by Decedent's fellow employees that rendered the hoist car dangerous.\\nException Two. Again Jones fails. There is no evidence, or inference therefrom, demonstrating that Ipalco was obligated to Jones under a specific duty imposed by law or contract, the breach of which would subject Ipalco to liability.\\nContrary to Jones' argument, Ipalco's duty to provide Jones with a safe place to work did not extend or relate to operation of a hoist which was owned, erected and maintained solely by Jones' employer, an independent contractor, for the exclusive use of the contractor's employees.\\nThe law of this state is that a party in the position of Ipalco is obligated to take necessary steps to prevent injury to an independent contractor's employee only when such injury is reasonably foreseeable in light of the hazardous nature of instrumentalities maintained by the party on his premises. Denneau v. Indiana and Michigan Electric Company, supra; Hoosier Cardinal Corporation v. Brizius (1964), 136 Ind. App. 363, 199 N.E.2d 481. No evidence was presented which could give rise to a reasonable inference that Ipalco ever assumed control over the maintenance or operation of the hoist, or had superior knowledge of potential danger involved in its operation by Combustion. Ipalco's sole employee on the premises admittedly had some knowledge that the limit control switch had previously caused the hoist to stick\\u2014knowledge that he shared with Combustion. Ipalco had no duty to Decedent under these circumstances. Hoosier Cardinal Corporation v. Brizius, supra, at 374, 199 N.E.2d 481.\\nThere is no specific duty imposed on Ipalco by the Dangerous Occupation Act or Administrative Regulations (cited above).\\nCases are legion in this state holding that the Dangerous Occupation Act imposes no statutory duty upon a contractee who is not in charge of the work or instrumentality in ques tion. The common law rule exempting the owner from liability for the negligence of an independent contractor is therefore unaffected by this legislation. Leet v. Block (1914), 182 Ind. 271, 106 N.E. 373; Switow v. McDougal (1916), 184 Ind. 259, 111 N.E. 3; Prest-O-Lite Company v. Skeel, supra; Kawneer Manufacturing Company v. Kalter (1918), 187 Ind. 99, 118 N.E. 561; Bedford Stone and Construction Company v. Hennigar (1918), 187 Ind. 716, 121 N.E. 277; Zainey v. Rieman (1924), 81 Ind. App. 74, 142 N.E. 397.\\nThe Administrative Regulations relied on by Jones were adopted by the Indiana Department of Labor and are assembled under the Department's \\\"Construction Industry Safety Code,\\\" Burns Administrative Rules and Regulations, \\u00a7 JO-2139 L 1 ei seq. These regulations do specify certain safety devices and procedures in the operation of material hoists. As Jones admits, in order for a \\\"specific duty\\\" to be imposed on Ipalco by these regulations, Ipalco must be classed as a \\\"prime contractor.\\\" Section L 1 (6) of the Safety Code covers this subject :\\n\\\"The prime contractor of the project shall be deemed as being responsible for compliance with the provisions of this code. In the event there is more than one (1) prime contractor on the project, each shall be responsible for compliance of this code within the area of his jurisdiction.\\\" (Emphasis supplied.)\\nA prime contractor is then defined by Section LI (8) :\\n\\\"The term 'prime contractor' shall be interpreted as being the person, firm or corporation that is responsible to the awarding unit for direct or indirect completion of all or part of the overall project.\\\" (Emphasis supplied.)\\nThis verbiage contemplates the classic arrangement of owner (contractee), a prime or general contractor in overall charge of the project, and subcontractors responsible to the prime contractor. No such arrangement existed in the construction of Ipalco's power plant.\\nThis definition of prime contractor merely recognizes the existence of a legal relationship comprised of two distinct entities: (1) the Contract or, i.e., one who undertakes to perform certain work for another, and (2) the Contractee, i.e., the \\\"awarding unit\\\" or person for whom such work is performed. See, 9 Words and Phrases 576 et seq., and cases thereunder.\\nIpalco's exclusive place in this relationship was that of \\\"Contractee,\\\" not \\\"Contractor.\\\" No duty was placed upon it by operation of a regulation which was addressed to prime \\\"Contractors.\\\"\\nThis distinction is not only a fair interpretation of the words of the prime contractor definition section, but is consistent with the statute which authorizes these regulations. It reads in part as follows:\\n\\\" the commissioner of labor is hereby authorized (a) To adopt rules , applicable to either employers or employees, or both (Emphasis supplied.) IC 1971, \\u00a722-1-1-11, Ind. Ann. Stat. \\u00a740-2140 (Burns 1965 Repl.). (40-2140 herein.)\\nThis statute, 40-2140, limits the application of rules and regulations to \\\"employers\\\" or \\\"employees.\\\" Ipalco was not an employer of Decedent and the prime contractor definition section cannot magically transform Ipalco into an \\\"employer\\\" by an interpretation that would ignore a contractee-owner's status as an awarding unit. Differently stated, a narrow interpretation of the prime contractor definition sections of the regulations is consistent with the limits of the regulations issued under the enabling statute (40-2140).\\nIn reaching this conclusion we have interpreted the words \\\"employer\\\" and \\\"employee\\\" in their ordinary and usual meaning.\\nFurthermore, to reach a different conclusion would permit a major departure from the common law rule insulating a contractee from liability to an employee of an independent contractor. Stewart v. Huff, supra. A statute must, if possible, be strictly construed to prevent such a derogation from that settled doctrine. See, Chicago and Erie Railroad Co. v. Luddington (1910), 175 Ind. 35, 91 N.E. 939.\\nTherefore, as with the Dangerous Occupation Act, the doctrine which protects Ipalco from liability is unaffected by these regulations in the Safety Code.\\nJones also relies on the contract itself to charge Ipalco with a specific duty to see that adequate precautions were taken to operate the hoist. There are no such provisions. There are contractual references to safety requiring Combustion to conduct its operations in a safe manner. Because Ipalco and its engineer, Stone and Webster, had the power to prescribe safety regulations under the contract did not give rise to a specific duty to do so.\\nException Four. Jones cannot impose liability on Ipalco on the basis that the act to be performed would probably cause injury to others unless due precaution was taken to avoid harm.\\nAs Judge Staton observed in Denneau:\\n\\\"Foreseeability is an essential element in exceptions one and four.\\\" (Our emphasis.) Denneau v. Indiana & Michigan Electric Co., supra at 12.\\nAnd further:\\n\\\"The nature of the performance of the work assigned to the servant which has caused the injury must be foreseeable by the contractee at the time of making the contract. (Our emphasis.) Scott Construction Co. v. Cobb (1928), 86 Ind. App. 699, 707, 159 N.E. 763; See also 23 A. L. R. 1016.\\\" Denneau v. Indiana & Michigan Electric Co., supra at 12.\\nThere was no evidence that, at the time Ipalco contracted with Combustion, Ipalco could foresee or should have foreseen that the limit control switch atop a man and materials hoist operated by an independent contractor for exclusive use of its employees would become clogged with ice and snow causing the hoist to stick\\u2014and that employees of such independent contractor would undertake to manipulate the hoist circuitry so as to cause death or injury. Such harm was not foreseeable \\\"at the time of making the contract.\\\"\\nThe policy underlying the foreseeability exception is aptly summarized in 41 Am. Jur. 2d Independent Contractors \\u00a7 35:\\n\\\"It is apparent that virtual abrogation of the general doctrine of an employer's nonliability for acts of an independent contractor or the latter's servants would result if the law were to predicate, under all circumstances, the existence of an absolute duty on the employer's part to guard against all accidents, probable as well as improbable, that might happen, to the damage of third persons, while stipulated work is being performed by an independent contractor. If, therefore, recovery is sought on the ground that an employer should have adopted certain precautionary measures for the purpose of preventing the injury complained of, the action must fail unless the plaintiff can at least show that in view of the nature of the work and the conditions under which it was to be executed, the defendant should have foreseen that the actual catastrophe which occurred was likely to happen if those precautionary measures were omitted.\\\" (Emphasis supplied. )\\nThere is an absence of evidence or legitimate inferences from evidence submitted which could support Jones' claim against Ipalco. Therefore, the judgment on the evidence entered by the trial court must be and is affirmed.\\nSullivan and White, JJ., concur.\\nNote.\\u2014Reported at 304 N.E.2d 337.\\n. Ind. Ann. Stat. \\u00a7 20-304 (repealed) (Burns 1964 Repl.) ; for present law, see IC 1971, \\u00a7 22-8-1.1-1 et seg., Ind. Ann. Stat. \\u00a7 40-1020 to 40-1068 (Burns 1968 Repl.).\\n. Burns Administrative Rules and Regulations, \\u00a7 40-2139, L 262 L 269, L 1.\\nJones makes no attempt to come within exceptions 8 and 5.\\nJones makes no attempt to come within exceptions 3 and 5.\"}"

ind/12327432.json

@@ -0,0 +1 @@
+"{\"id\": \"12327432\", \"name\": \"Gransbury v. State\", \"name_abbreviation\": \"Gransbury v. State\", \"decision_date\": \"2017-05-26\", \"docket_number\": \"41A05-1606-CR-1422\", \"first_page\": \"238\", \"last_page\": \"238\", \"citations\": \"86 N.E.3d 238\", \"volume\": \"86\", \"reporter\": \"North Eastern Reporter 3d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T01:41:35.676082+00:00\", \"provenance\": \"CAP\", \"judges\": \"MAY, J.\", \"parties\": \"Gransbury v. State\", \"head_matter\": \"Gransbury v. State\\n41A05-1606-CR-1422\\n05/26/2017\\nMAY, J.\\nBROWN, J.\\nPYLE, J.\", \"word_count\": \"14\", \"char_count\": \"101\", \"text\": \"Affirmed\\nConcurs\\nConcurs\"}"

ind/12362388.json

@@ -0,0 +1 @@
+"{\"id\": \"12362388\", \"name\": \"Carla S. ARTHUR, as Special Representative of the Estate of Mitch Arthur, deceased, Appellant-Plaintiff, v. MACALLISTER MACHINERY CO., INC., and MacAllister Rental, LLC, Appellees-Defendants\", \"name_abbreviation\": \"Arthur v. MacAllister Machinery Co.\", \"decision_date\": \"2017-09-18\", \"docket_number\": \"Court of Appeals Case No. 42A01-1610-CT-2307\", \"first_page\": \"783\", \"last_page\": \"789\", \"citations\": \"83 N.E.3d 783\", \"volume\": \"83\", \"reporter\": \"North Eastern Reporter 3d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T17:36:36.402312+00:00\", \"provenance\": \"CAP\", \"judges\": \"Kirsch, J. and Mathias, J., concur.\", \"parties\": \"Carla S. ARTHUR, as Special Representative of the Estate of Mitch Arthur, deceased, Appellant-Plaintiff, v. MACALLISTER MACHINERY CO., INC., and MacAllister Rental, LLC, Appellees-Defendants\", \"head_matter\": \"Carla S. ARTHUR, as Special Representative of the Estate of Mitch Arthur, deceased, Appellant-Plaintiff, v. MACALLISTER MACHINERY CO., INC., and MacAllister Rental, LLC, Appellees-Defendants\\nCourt of Appeals Case No. 42A01-1610-CT-2307\\nCourt of Appeals of Indiana.\\nSeptember 18, 2017\\nAttorney for Appellant: Joseph E. All-man, Indianapolis, Indiana\\nAttorneys for Appellees: Kevin C. Schi-ferl, Darren A. Craig, Indianapolis, Indiana\", \"word_count\": \"2745\", \"char_count\": \"17359\", \"text\": \"Altice, Judge.\\nCase Summary\\nCarla S. Arthur, as Special Representative of the Estate of Mitch Arthur, (the Estate) appeals from the trial court's order granting summary judgment in favor of MacAllister Machinery Co., Inc., and MacAllister Rental, LLC (collectively, MacAllister). On appeal, the Estate argues that the trial court improperly granted summary judgment on its negligence claim against MacAllister.\\nWe affirm.\\nFacts & Procedural History\\nMacAllister operates approximately twelve equipment rental facilities from which its customers, primarily industrial concerns, rent or lease heavy equipment. In 2008, MacAllister began leasing heavy equipment to Scepter Inc., which operated a secondary aluminum recycling facility in Bicknell, Indiana. Over the years, MacAl-lister had leased over twenty different aerial boom lifts to Scepter for use in various applications. On January 23, 2012, MacAl-lister delivered yet another boom lift leased by Scepter to the Bicknell facility.\\nWith every rental, MaeAllister performed an inspection of the equipment and completed an Equipment Condition Report (ECR). Those ECRs were presented to, reviewed by, and signed by receiving personnel upon delivery of the equipment. The ECR for the boom lift at issue reflected that an inspection of the boom lift, including checking its'fluid levels, tire condition, safety features, decals, manuals, and fuel level, had been performed. It is further indicated on the ECR that the operating controls and safety devices were working properly at the time of delivery. In this same portion of the ECR is a place to acknowledge that \\\"Only properly trained personnel (see back of form) shall operate this equipment.\\\" Appellant's Appendix Vol. 2 at 176 (underlining in original). Next to this statement, the box indicating \\\"yes\\\" is marked. Id. On the reverse side of the ECR, the responsibilities of the boom lift's user/operator are set out, including that:\\n\\u2022 the user shall ensure only properly trained individuals will operate the aerial platform\\n\\u2022 the operator be trained on the equipment\\n\\u2022 the user and their operators shall perform work place inspections prior to use of the aerial platform, and\\n\\u2022 the user shall direct his operating personnel and supervise their work to ensure operation of the aerial platform.in compliance with the provisions as outlined in the manual.\\nSee id. at 28,177.\\nMitch Arthur (Arthur) had been a maintenance worker at Scepter's Bicknell facility for over thirty years. During the afternoon of February 3, 2012, Arthur and Dave Overton, a maintenance crew coworker, were tasked with replacing part of a smelting furnace. The furnace was surrounded by a shrouding/hood and Arthur was using the boom lift to move up inside the hood. Overton was on the ground, operating a telehandler to hold the piece that Arthur was removing. Arthur and Overton had engaged in this process of using a boom lift to access the inside of a furnace hood on numerous occasions prior to February 3. After Arthur completed his final cuts, he began to move the boom lift out from under the hood using the lift's basket controls. Overton reported that. Arthur, suddenly became trapped between the lift's basket controls and the furnace hood. As a result, Arthur suffered fatal injuries.\\nIn the days after Arthur's death, a representative from JLG and an investigator with the Indiana Occupational Safety and Health Administration (IOSHA) inspected the. boom lift. The JLG representative determined that. the lift was functioning properly at the time of the accident. The IOSHA investigator initially determined that MaeAllister had violated industry standards when the driver who delivered the boom lift to Scepter \\\"did not offer training to the receiving company employee(s).\\\" Appellant's Appendix Vol. 5 at 43. MaeAllister petitioned for review of this determination, informing IOSHA that MacAIIister's employee responsible for the Scepter account had \\\"offered both individualized and group training to the Scepter management\\\" \\\"at the inception of MacAIIister's relationship with Scepter.\\\" Id. at 46, 47. MacAllister asserted that it \\\"stands ready to offer any and all training its customers request,\\\" but that Scepter had not requested any such training. Id. at 47. Based on this information, IOSHA cleared MacAl-lister of any violation of industry standard.\\nOn January 25, 2013, the Estate filed its complaint against JLG and MacAllister, asserting claims for products, liability and negligence, MacAllister filed a motion for summary judgment on March 23, 2016. The trial court held a summary judgment hearing on July 8, 2016. On September 30, 2016, the trial court issued its order granting summary judgment in favor of MacAl-lister. The Estate now appeals. Additional facts will be provided as necessary.\\nDiscussion & Decision\\nThe Estate argues that the trial court improperly granted summary judgment in favor of MacAllister. We review summary judgment de novo, applying the same standard as the trial court: \\\"Drawing all reasonable inferences in favor of . the non-moving parties, summary judgment is appropriate 'if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' \\\" Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting Ind. Trial Rule 56(C)). \\\"A fact is 'material' if its resolution would affect the outcome of the case, and an issue is 'genuine' if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.\\\" Id. (internal citations omitted).\\nThe initial burden is on the summary-judgment movant to \\\"demonstrate . the absence of any genuine issue of fact as to a determinative issue,\\\" at which point the burden shifts to the non-movant to \\\"come forward with .contrary evidence\\\" showing an issue for the trier of fact. Id. at 761-62 (internal quotation. marks and substitution omitted). Where a trial court enters specific findings and conclusions, they offer insight into the rationale for the trial court's judgment and facilitate appellate review, but are not binding upon this court. Henderson v. Reid Hosp. & Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans. denied,. We will affirm upon any theory or basis supported by the designated materials. Id. When a trial court grants summary judgment, we carefully scrutinize that determination to ensure that a party was not improperly prevented from having his or her day in court. Id.\\nThe Estate claims that MacAllister was negligent in providing rental services to Scepter, and as a direct result of that negligence, Arthur suffered fatal injuries while operating the boom lift. Citing industry standards, the Estate alleges that Ma-cAllister had an affirmative duty to inquire as to the application in which the boom lift was going to be used and to train, or offer to train, Scepter employees on how to properly operate the boom lift. In response, MacAllister argues that it was not obligated, by industry standards or general negligence principles, to make such' inquiry or-to train Scepter's employees as to the proper operation of the lift.\\n\\\"[T]o prevail on a claim of negligence the plaintiff must show: (1) duty owed to plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the applicable standard of care; and (3) compensable injury proximately caused by defendant's breach of duty.\\\" Goodwin v. Yeakle's Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016) (quoting King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003)). Here, the issue before us'is one of duty. Whether a duty exists is a question of law for the court to decide. Id. at 386-87 (citing Peters v. Forster, 804 N.E.2d 736, 738 (Ind. 2004)). Absent a duty there can be no negligence or liability based upon the breach. Id. at 386. Thus, when it is determined that no duty exists, summary judgment is appropriate. See Reed v. Beachy Const. Corp., 781 N.E.2d 1145, 1148-49 (Ind. Ct. App. 2002) (noting that a defendant is entitled to summary judgment by demonstrating that the undisputed material facts negate at least one element of plaintiffs negligence claim).\\nThe Estate directs us to the American National Standard for Boom-Supported Elevating Work Platforms, ANSI/SIA A92.5-2006 (ANSI A92.5) as the source of MacAllister's duty as an owner/dealerAessor of aerial lifts such as the lift at issue. Pursuant to Section 5.7 of ANSI A92.5, dealers \\\"shall offer appropriate training to facilitate owners, users, and operators to comply with requirements\\\" set forth in ANSI A92.5. Appellant's Appendix Vol. Ill at 99 (emphasis supplied). The Estate maintains that this provision creates an affirmative duty on MacAllister to train Scepter's employees, including Arthur, on the safe operation of the boom lift. We disagree. Section 5.7 does not establish a duty on MacAllister to actually provide training, but only that MacAllister offer to provide training. Further, this provision does not affirmatively obligate MacAllister to offer training directly to Scepter's employees who might operate the lift. This provision does not create a duty owed by MacAllister to Arthur. We further note that as an owner, MacAllister had a duty to offer training only \\\"[u]pon request of the user.\\\" Id. at 100. There is no indication in the designated evidence that Scepter requested any training so as to trigger MacAllister's duty to offer training.\\nThe Estate also cites Section 5.8 of ANSI A92.5, which obligated MacAllister to familiarize \\\"the person designated by the receiving entity\\\" to accept the aerial platform with certain features, including identification 'of the weather resistant compartment where the manual is stored and the manual itself,' and to review control functions and safety devices specific to the equipment being delivered. Id. It is not alleged that Arthur-was the person designated to accept delivery of the boom lift at issue. Further, this section does not extend MacAllister's duty in this regard to all employees of Scepter who might operate the boom lift. Thus, contrary to the Estate's claim, MacAllister did not owe' a duty to familiarize Arthur with the boom lift:\\nThe Estate also cites Section 5.1 of ANSI A92.5 as support for its allegation that MacAllister owed a duty to determine whether the boom lift was proper for the intended use/environment. Section 5.1 provides:\\nSound principles of safety, training, inspection, maintenance, application, and operation consistent with all data available regarding the parameters of intended use and expected environment shall be applied in the training of operators, in maintenance, application, safety provisions and operation of the aerial platform with due consideration of the knowledge that the unit will be carrying personnel.\\nId. at 98. The Estate misreads this section as creating an affirmative duty on behalf of MacAllister to train Arthur. Section 5.1 does not require\\u2014explicitly or implicitly\\u2014 that MacAllister inquire into the intended use/environment for the boom lift. Rather, MacAllister only had to use the information available regarding the intended use/expected environment when training employees. And, even though such \\\"[sjound principles\\\" should be applied in training, such does create a duty on behalf of MacAllister to provide training to Scepter's employees, including Arthur. Id.\\nSupporting our interpretation that Sections 5.1, 5.7, and 5.8 do not impose a duty upon MacAllister as the dealer/owner/lessor to provide training to Scepter employees or to inquire into the application for the boom lift are those sections defining the responsibilities and obligations of users. A \\\"User\\\" is defined as \\\"[p]erson(s) or entity(ies) that has care, control, and custody of the aerial platform,\\\" which may also be \\\"the employer of the operator, a dealer, employer, owner, lessor, lessee, or operator.\\\" Id. at 97. Here, Scepter is the only entity that falls within the definition of user as Scepter had care, control, and custody of the boom lift and served as Arthur's employer. Section 7.6 of ANSI A92.5 provides that Scepter, as the user, \\\"shall ensure\\\" that the person directed to operate the aerial platform has been trained and familiarized with the equipment. Id. at 101. Section 7.7 provides that the user \\\"shall permit only properly trained personnel to operate an aerial platform\\\" and \\\"shah ensure\\\" that the operator is familiar with the boom lift being used. Id. at 102. A dealer \\\"shall assume the responsibilities of users\\\" only when the dealer \\\"directs personnel to operate an aerial platform.\\\" Id. at 99.\\nThe distinction between the responsibilities owed by Scepter as the \\\"user\\\" and MacAllister as the \\\"dealer\\\" makes practical sense. Scepter was in the best position to know which of its employees might be operating the aerial lifts and in what applications/environments the equipment would be used. MacAllister's obligations were to offer training and familiarize a \\\"designated person\\\" with the safety features of the boom lift it was renting to Scepter. Only if MacAllister had directed Arthur in the use of the boom lift would MacAllister have assumed the greater duties imposed on users. In short, the provisions that apply to MacAllister as a dealer do not create a duty owed by Ma-cAllister to Arthur in terms of training and knowledge of the application in which the boom lift was to be operated.\\nWe also find unpersuasive the Estate's argument that ANSI A10.42, which applies to rigging applications, places a duty on MacAllister to train Scepter's employees on the operation of aerial lifts. ANSI A10.42 requires training of personnel designated to operate rigging tools, but provides that the \\\"employer or other entity responsible for supervising the lifting, hoisting, or movement of a load shall assess the knowledge, skills, and abilities of individuals designated as qualified riggers.\\\" Id. at 108. MacAllister is not Arthur's employer and had no responsibility for supervising the operation.\\nIn addition to citing ANSI standards, the Estate also argues that Ma-cAllister was negligent in rendering its rental services to Scepter as a matter of common law. Even under a theory of common law negligence, the Estate must establish that MacAllister owed a duty to Arthur. The cases cited by the Estate do not support a finding of duty on the part of MacAllister. Here, MacAllister did not undertake the rendering of services and did not by its actions or inactions increase the risk of harm. The Estate has cited no authority that imposes a duty on MacAllis-ter to inquire into the intended use of the boom lift or to train Scepter's employees. Indeed, no Indiana court has determined that a lessor of equipment has a duty to ensure that employees of the lessee are trained in its use.\\nThe accident in question had a very tragic ending. We, however, agree with the trial court that as applied to the undisputed facts, the law does not place the responsibility for the loss on MacAllister. Because MacAllister owed no duty to Arthur to inquire as to the application for the boom lift or to train or offer to train him regarding operation of the lift, MacAllister is entitled to summary judgment.\\nJudgment affirmed.\\nKirsch, J. and Mathias, J., concur.\\n. The boom lift was manufactured by JLG Industries, Inc. and JLG-MHD Indiana, Inc. (collectively JLG).\\n. The copy included in the appendix of that part of the ECR setting forth these responsibilities is Of poor quality and only partly legible. We can, however, decipher enough to be confident with the trial court's findings. We further note that the Estate does not dispute the trial court's findings in this regard.\\n. On July 12, 2013, the product liability claim against JLG was dismissed with prejudice upon the Estate's motion after it was revealed during discovery that JLG manufactured the boom lift more than ten years prior to the accident. The , claim against JLG was thus precluded by the products liability statute of repose, In response to MacAllister's summary judgment motion, the Estate conceded that any product liability claim against MacAllister was likewise barred by the statute of repose and explained that its only claim against Ma-cAllister was in negligence,\\n. MacAllister acknowledges that it qualifies as a dealer for purposes of ANSI A92.5. Per the definitions contained within ANSI A92.5, Ma-cAllister also seemingly qualifies as an owner and lessor and would thus be subject to the obligations associated therewith. For our purposes, the obligations of an owner or lessor are essentially the same as those imposed upon a dealer. \\u2022\\n. The Estate asserts that \\\"this duty is doubly applied\\\" to MacAllister because the same provision is also contained in ANSI standards relating to lessors of aerial equipment. Appellant's Brief at 24.\"}"

ind/12538145.json

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+"{\"id\": \"12538145\", \"name\": \"Farrell HAYCRAFT, Appellant v. STATE of Indiana\", \"name_abbreviation\": \"Haycraft v. State\", \"decision_date\": \"2018-10-15\", \"docket_number\": \"\", \"first_page\": \"1016\", \"last_page\": \"1016\", \"citations\": \"111 N.E.3d 1016\", \"volume\": \"111\", \"reporter\": \"North Eastern Reporter 3d\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-27T21:02:27.904211+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Farrell HAYCRAFT, Appellant\\nv.\\nSTATE of Indiana\", \"head_matter\": \"Farrell HAYCRAFT, Appellant\\nv.\\nSTATE of Indiana\\nSupreme Court of Indiana.\\nOctober 15, 2018\\nTransfer Denied.\", \"word_count\": \"19\", \"char_count\": \"129\", \"text\": \"All Justices concur.\"}"

ind/12542166.json

@@ -0,0 +1 @@
+"{\"id\": \"12542166\", \"name\": \"AMERISTAR CASINO EAST CHICAGO, LLC, Ameristar East Chicago Holdings, LLC, and Pinnacle Entertainment, Inc., Appellants-Defendants, v. Joseph FERRANTELLI, Sr., Appellee-Plaintiff\", \"name_abbreviation\": \"Ameristar Casino E. Chi., LLC v. Ferrantelli\", \"decision_date\": \"2019-03-08\", \"docket_number\": \"Court of Appeals Case No. 18A-CT-1174\", \"first_page\": \"1021\", \"last_page\": \"1029\", \"citations\": \"120 N.E.3d 1021\", \"volume\": \"120\", \"reporter\": \"North Eastern Reporter 3d\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-27T21:02:32.088564+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"AMERISTAR CASINO EAST CHICAGO, LLC, Ameristar East Chicago Holdings, LLC, and Pinnacle Entertainment, Inc., Appellants-Defendants,\\nv.\\nJoseph FERRANTELLI, Sr., Appellee-Plaintiff\", \"head_matter\": \"AMERISTAR CASINO EAST CHICAGO, LLC, Ameristar East Chicago Holdings, LLC, and Pinnacle Entertainment, Inc., Appellants-Defendants,\\nv.\\nJoseph FERRANTELLI, Sr., Appellee-Plaintiff\\nCourt of Appeals Case No. 18A-CT-1174\\nCourt of Appeals of Indiana.\\nFILED March 8, 2019\\nAttorney for Appellants: Edward W. Hearn, Johnson & Bell, P.C., Crown Point, Indiana\\nAttorneys for Appellee: David W. Westland, Carolyn A. Thiess, Westland & Bennett, PC, Hammond, Indiana\", \"word_count\": \"3390\", \"char_count\": \"21286\", \"text\": \"Crone, Judge.\\nStatement of the Case\\n[1] This case illustrates the dangers of noncompliance with our liberal and self-effectuating discovery process. Ameristar Casino East Chicago, LLC, Ameristar East Chicago Holdings, LLC, and Pinnacle Entertainment, Inc. (collectively \\\"Ameristar\\\"), bring this interlocutory appeal from the trial court's denial of a motion to set aside a default judgment entered against Ameristar and in favor of Joseph Ferrantelli, Sr., on Ferrantelli's negligence claim against Ameristar. A default judgment on Ameristar's liability was entered by the trial court as a sanction based on the court's finding that Ameristar engaged in a continuous, ongoing, and purposeful lack of cooperation with the discovery process. On appeal, Ameristar contends that the trial court abused its discretion both in issuing the default judgment and in declining to set it aside. Finding no abuse of discretion, we affirm and remand for further proceedings.\\nFacts and Procedural History\\n[2] On March 8, 2016, eighty-six-year-old Ferrantelli was injured when he fell while getting on an escalator with a wheelchair at the Ameristar Casino in East Chicago. On October 16, 2016, Ferrantelli filed his complaint against Ameristar claiming that Ameristar \\\"failed to properly advise him\\\" and \\\"failed to clearly mark the elevators, among other things.\\\" Appellants' App. Vol. 2 at 22-23. Ameristar filed its answer denying the allegations in the complaint, and asserting affirmative defenses including comparative fault and assumption of risk.\\n[3] In November 2016, Ferrantelli sent written discovery requests to Ameristar requesting, among other things: (1) all statements made by Ferrantelli and obtained by Ameristar; (2) every written statement and document obtained from any person having personal knowledge of the accident; and (3) the identity of each Ameristar employee or agent, or other person with knowledge of the accident. In response, Ameristar produced one incident report and identified only four individuals with knowledge of the accident. Ameristar indicated that it was not in possession of any statement made by Ferrantelli.\\n[4] On May 4, 2017, Ferrantelli sent Ameristar a written request for deposition dates for the four identified individuals as well as Ameristar's Trial Rule 30(B)(6) representative. Ameristar did not respond. On May 10, counsel for both parties discussed by telephone the request for deposition dates; however, dates were not provided by Ameristar. On May 24, Ferrantelli again sent a written request for deposition dates and received no response from Ameristar. Between July 6 and July 31, 2017, numerous additional oral and email requests were made by Ferrantelli to obtain deposition dates. Ameristar did not respond other than to provide the identity of its 30(B)(6) representative. On August 7, 2017, Ferrantelli sent a third written request for deposition dates. Ferrantelli advised Ameristar that he would be filing a motion to compel if Ameristar failed to set deposition dates within ten days. Ameristar did not respond.\\n[5] Almost one month later, on September 5, 2017, Ferrantelli filed a motion to compel discovery that included a request for attorney's fees. Ameristar did not file a response to the motion. Discovery closed on September 28, 2017. The trial court held a hearing on the motion to compel on December 13, 2017. Ferrantelli's counsel explained and produced documentation to the trial court regarding his countless attempts over a protracted period to get depositions scheduled to no avail. He argued that Ameristar was purposely evading and delaying discovery (specifically the depositions) due to Ferrantelli's advanced age, and that the continued delay could ultimately result in Ferrantelli being unable to see the case go to trial. Ameristar's counsel \\\"[k]ind of apologized\\\" but essentially \\\"gave no reason for [Ameristar's] failure to cooperate.\\\" Tr. Vol. 2. at 37. Following the hearing, the court reopened and \\\"straightened the discovery problems, received promises [from Ameristar] of future compliance with the discovery process, set the matter for a compliance hearing, and held open the attorney fee request pending cooperation moving forward.\\\" Appellants' App. Vol. 2. at 66. The trial court ordered Ameristar to provide deposition dates by January 1, 2018, noting that it appeared that the case \\\"has been sandbagged with an older Plaintiff.\\\" Tr. Vol. 2 at 8. The court warned Ameristar's counsel that the court expected Ameristar to be \\\"extremely cooperative here\\\" and also twice declared, \\\"This Judge hates discovery fights.\\\" Id. at 9, 10.\\n[6] Ameristar did comply, at least in part, with the court's order, and the depositions of four of the five requested witnesses were completed on January 16, 2018. However, during those depositions, Ferrantelli's counsel learned the identities of several witnesses not previously disclosed by Ameristar, and it was further revealed that Ameristar was in possession of multiple documents, as well as recorded statements, that were responsive to Ferrantelli's earlier discovery requests but never produced. As a result of the information obtained during the depositions, on January 26, 2018, Ferrantelli sent correspondence to Ameristar requesting the additional discovery. Ameristar did not respond. Accordingly, Ferrantelli filed a second motion to compel and request for sanctions on February 16, 2018. Ferrantelli argued that Ameristar continued to \\\"purposefully hindering the progression of this case\\\" with its \\\"abuse of the discovery process, and continuous failure to comply with [Ferrantelli's] discovery requests, as well as instructions given by [the trial court.]\\\" Appellants' App. Vol. 2 at 61. Accordingly, Ferrantelli requested, among other things, entry of an order striking Ameristar's answer to the complaint and an order entering a default judgment in favor of Ferrantelli. Ameristar filed no response to the motion to compel.\\n[7] On March 6, 2018, the trial court entered its order on Ferrantelli's second motion to compel and for sanctions. Specifically, the court noted that Ameristar had filed no response to Ferrantelli's allegations of \\\"withholding of discovery, the purposeful creation of the passage of time between reporting and disclosure to again 'slow play' the discovery process, and a refusal to follow-up these late disclosures with reasonable information related to witnesses that have since left [Ameristar's] employment.\\\" Id. at 66. As such, the court found \\\"a continuous, on-going, and purposeful lack of cooperation with the discovery process\\\" by Ameristar, and ordered in relevant part:\\n1. [Ameristar's] answer of November 8, 2016 is hereby STRICKEN .\\n2. DEFAULT JUDGMENT is hereby entered against [Ameristar] in favor of FERRANTELLI.\\n3. The facts of this case are ACCEPTED as alleged in the complaint.\\n4. Attorney for FERRANTELLI shall file an Order within twenty-one days setting a coordinated status conference for the purpose of:\\nA. setting a damages hearing; and\\nB. setting a hearing on contempt/for attorney fees.\\nId. at 67. On March 8, 2018, Ameristar filed a Trial Rule 60(B)(8) motion to set aside default judgment and request for hearing. Additionally, on March 9, 2018, Ameristar filed an amended motion to set aside and request for hearing.\\n[8] The trial court held a hearing on Ameristar's motion to set aside on April 10, 2018. Based upon the argument of counsel, and a review of all prior proceedings and correspondence, the trial court entered its order denying the motion to set aside. Specifically, the trial court concluded that \\\"there was an interference with discovery\\\" by Ameristar that the court \\\"just can't tolerate.\\\" Tr. Vol. 2. at 39. Indeed, the court repeatedly noted that it had \\\"never seen anything even close to this\\\" as far as abuse of the discovery process. Id. The trial court explained that usually warnings, as were made by the court in granting the first motion to compel, cause the noncompliant party to \\\"snap right to\\\" without further issue, but unfortunately that \\\"didn't happen\\\" with Ameristar. Id. at 40. Accordingly, the trial court declined to set aside the default judgment and set the matter for a damages hearing. The trial court certified its order for interlocutory appeal, and this Court accepted jurisdiction and stayed the trial court proceedings pending resolution of this appeal.\\nDiscussion and Decision\\n[9] We begin by emphasizing that the decision whether to set aside a default judgment is given substantial deference on appeal. Huntington Nat'l Bank v. Car-X Assoc. Corp. , 39 N.E.3d 652, 655 (Ind. 2015). Our appellate review is limited to determining whether the trial court abused its discretion. Id. An abuse of discretion may occur if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Id. Upon review, we will not reweigh the evidence or substitute our judgment for that of the trial court. Id. In order to be granted relief pursuant to Indiana Trial Rule 60(B)(8) as Ameristar seeks here, the moving party must demonstrate some extraordinary or exceptional circumstances justifying equitable relief. State v. Collier , 61 N.E.3d 265, 268 (Ind. 2016).\\n[10] It is well settled that the purpose of the discovery rules is to allow for minimal trial court involvement and to promote liberal discovery. Whitaker v. Becker , 960 N.E.2d 111, 115 (Ind. 2012). \\\"Although concealment and gamesmanship were [once] accepted as part and parcel of the adversarial process, we have unanimously declared that such tactics no longer have any place in our system of justice.\\\" Id. (citations and quotation marks omitted). \\\"Today, the purpose of pretrial discovery is to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.\\\" Id. (citations and quotation marks omitted). When discovery breaks down or the trial court determines that the discovery process has been abused, the court may, in its discretion, impose various sanctions including, but not limited to, an award of costs and attorney fees, exclusion of evidence obtained through misuse of the discovery process, or entry of dismissal or judgment by default. Ross v. Bachkurinskiy , 770 N.E.2d 389, 392 (Ind. Ct. App. 2002). The purpose of allowing a trial court to impose sanctions is \\\"not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.\\\" Whitaker , 960 N.E.2d at 115 (quoting Nat'l Hockey League v. Metro. Hockey Club, Inc. , 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) ). Therefore, we vest trial courts with wide discretion in dealing with discovery matters and will reverse a trial court's decision regarding discovery only for an abuse of discretion. Prime Mortg. USA, Inc. v. Nichols , 885 N.E.2d 628, 648-49 (Ind. Ct. App. 2008).\\n[11] The sole limitation on the trial court in determining an appropriate discovery sanction is that the sanction must be just. Id. (citing Bankmark of Fl., Inc. v. Star Fin. Card Servs., Inc. , 679 N.E.2d 973, 978 (Ind. Ct. App. 1997) ). In determining whether a sanction is just, we have recognized that,\\n[a]lthough a default judgment plays an important role in the maintenance of an orderly, efficient judicial system as a weapon for enforcing compliance with the rules of procedure and for facilitating the speedy determination of litigation, in Indiana there is a marked judicial deference for deciding disputes on their merits and for giving parties their day in court, especially in cases involving material issues of fact, substantial amounts of money, or weighty policy determinations.\\nCharnas v. Estate of Loizos , 822 N.E.2d 181, 185 (Ind. Ct. App. 2005). While an order granting a default judgment is the ultimate sanction a trial court may use, the court is not necessarily required to first issue a lesser sanction. Prime Mortg. , 885 N.E.2d at 649. Indeed, imposing intermediate sanctions is not obligatory when a party's behavior is particularly egregious. Id.\\n[12] Before arguing the merits of the default sanction imposed by the trial court, Ameristar points to several claimed procedural deficiencies regarding the trial court's consideration of Ferrantelli's second motion to compel. Namely, Ameristar contends that neither the motion to compel nor the trial court's grant thereof complied with certain applicable local court rules. Our supreme court has noted that \\\"Indiana trial courts may establish local rules for their own governance so long as the local rules do not conflict with the rules established by this Court or by statute.\\\" Gill v. Evansville Sheet Metal Works, Inc. , 970 N.E.2d 633, 646 (Ind. 2012) (citations omitted). \\\"As a general matter, local rules are procedural and 'are intended to standardize the practice within that court, to facilitate the effective flow of information, and to enable the court to rule on the merits of the case.' \\\" Id. (quoting Meredith v. State , 679 N.E.2d 1309, 1310 (Ind. 1997). \\\"Once made, the court and all litigants subject to the local rules are bound by them.\\\" Id. However, a trial court should not blindly adhere to all of its rules because in \\\"rare cases, such blind adherence to rigid procedural requirements may defeat justice instead of serving the rules' intended function as a means of obtaining the end of orderly and speedy justice.\\\" Id. That said, a trial court should not set aside its own rules lightly and, \\\"before doing so, 'the court must assure itself that it is in the interests of justice to do so, that the substantive rights of the parties are not prejudiced, and that the rule is not a mandatory rule.' \\\" Id. (quoting Meredith , 679 N.E.2d at 1311 ).\\n[13] We chose not to belabor the specifics of the procedural deficiencies alleged by Ameristar, as we are confident upon review that, even assuming any technical noncompliance with certain procedural rules, Ameristar's substantive rights have ultimately not been prejudiced. The crux of Ameristar's claims of procedural noncompliance is that it was denied the opportunity to present to the trial court its arguments in opposition to Ferrantelli's second motion to compel. However, Ameristar was afforded a full opportunity to present those arguments to the trial court, and in fact did so, during the hearing on its motion to set aside. Accordingly, we conclude that any technical noncompliance with certain procedural rules was harmless in the instant case.\\n[14] Turning to the merits of the default judgment entered here, Ameristar asserts that the entry of a default was an unwarranted sanction, and therefore the trial court abused its discretion both in issuing that sanction and in declining to set it aside upon Ameristar's motion. The record indicates that Ameristar failed to respond and/or was entirely uncooperative with regard to numerous discovery requests, over a protracted period of time, which caused the trial court to intervene and issue its first order to compel discovery. In entering that order, the trial court held the issue of monetary sanctions under advisement and warned Ameristar that it expected full compliance and cooperation moving forward. Although Ameristar complied, for the most part, with that order, it was later revealed that Ameristar had withheld certain witness information, and further that many of Ameristar's prior discovery responses had been, in the trial court's opinion, intentionally incomplete and misleading. Our supreme court has specifically acknowledged that, under appropriate facts, a trial court may enter dismissal or default judgment if it determines that a party has responded to discovery but has done so in an incomplete or misleading way. Whitaker , 960 N.E.2d at 116. To make matters worse, when Ferrantelli again tried to obtain complete discovery, Ameristar continued to be noncooperative and unresponsive. Even a second motion to compel filed by Ferrantelli, which included a request for more severe sanctions, failed to get Ameristar's attention, in that it did not even garner a response. Under the circumstances presented, the trial court determined that a default judgment was warranted based upon the \\\"continuous, on-going, and purposeful lack of cooperation with the discovery process\\\" by Ameristar. Appellants' App. at 67. Indeed, the court found Ameristar's behavior particularly egregious, repeatedly noting that it had \\\"never seen anything even close to this.\\\" Tr. Vol. 2. at 39.\\n[15] To be clear, the entry of a default judgment is the ultimate sanction. Still, we must be mindful that \\\"[t]rial judges stand much closer than an appellate court to the currents of litigation pending before them, and they have a correspondingly better sense of which sanctions will adequately protect the litigants in any given case[.]\\\" Wright v. Miller , 989 N.E.2d 324, 327 (Ind. 2013). It is not the place of this Court to substitute our judgment for that of the trial court, as we must presume the trial court acted in accord with what was fair and equitable in the specific case. Id. at 330. The trial court here made a detailed oral record explaining its frustration with Ameristar's behavior, as well as its prior warnings to counsel to stop what the court viewed as the intentional sandbagging of the case considering the plaintiff's advanced age. We conclude that the trial court did not abuse its discretion in determining that the sanction of default judgment was warranted. Moreover, the trial court was well within its discretion to reject Ameristar's equitable demands for the court to set aside the default judgment pursuant to Trial Rule 60(B)(8). Therefore, we affirm the trial court's orders and remand for further proceedings on the issue of damages.\\n[16] Affirmed and remanded.\\nVaidik, C.J., and Mathias, J., concur.\\nIn his deposition, Ferrantelli explained that he and a \\\"lady friend\\\" of his went to the casino because they had heard about a \\\"crab leg deal\\\" and they wanted \\\"to gamble a little bit.\\\" Appellants' App. Vol. 2 at 100. When they arrived, Ferrantelli's friend requested a wheelchair, and Ferrantelli was instructed by \\\"one of the attendants at a booth\\\" to take the escalator down to the first level to retrieve the wheelchair. Id. at 103. Ferrantelli took the escalator down, and a casino employee gave him the wheelchair. That employee then \\\"pointed toward the escalator\\\" and said, \\\"Take the escalator.\\\" Id. at 104. As Ferrantelli was putting the wheelchair on the escalator to go back up, \\\"it caught the front wheels and flipped [him] backwards, and [he] landed flat on [his] back.\\\" Id. at 105.\\nIndiana Trial Rule 30(B)(6) provides in relevant part that a party may \\\"name as the deponent an organization,\\\" and \\\"[t]he organization so named shall designate one or more officers, directors, or managing agents, executive officers, or other persons duly authorized and consenting to testify on its behalf.\\\"\\nCounsel for Ameristar originally designated Edward Spearman as the 30(B)(6) representative. However, rather than getting a deposition date scheduled for Spearman, counsel later claimed to still be in the process of deciding who would best serve as the 30(B)(6) representative.\\nAmeristar made numerous arguments and excuses for its dilatory behavior that the trial court did not find credible. Specifically, regarding its failure to respond to the second motion to compel, counsel for Ameristar implied that it had its response ready to file, but that its response was due the same day the trial court issued its order entering a default judgment. Counsel argued, \\\"It would make no sense for us to file a response once you entered the order.\\\" Tr. Vol. 2 at 19. The trial court did not believe that a response was planned or would have been forthcoming. The court stated, \\\"I gotta be honest, but for my Order, I wouldn't have received anything. I truly believe that . I entered that order in the morning . [i]f [you] had a response sitting there ready, I would have got it that afternoon and I didn't. I don't think a response was ever going to be filed.\\\" Id. at 38-39.\\nSpecifically, Ameristar asserts noncompliance with Lake County Local Rule 45-TR26-8(C) regarding attorney conferences to resolve discovery disputes and Rule 45-TR7-4 addressing motions practice.\\nAs noted earlier, the trial court did not find credible Ameristar's assertion that it would have filed a response but for the trial court's \\\"premature\\\" ruling on the motion to compel. Appellant's Br. at 23. We will not reassess credibility on appeal.\\nWe note that Ameristar's continued denial of and lack of contrition for its discovery abuses was not well taken by the trial court.\"}"

ind/12544195.json

@@ -0,0 +1 @@
+"{\"id\": \"12544195\", \"name\": \"Hane C. HARRIS, Appellant v. STATE of Indiana\", \"name_abbreviation\": \"Harris v. State\", \"decision_date\": \"2019-03-14\", \"docket_number\": \"\", \"first_page\": \"44\", \"last_page\": \"44\", \"citations\": \"124 N.E.3d 44\", \"volume\": \"124\", \"reporter\": \"North Eastern Reporter 3d\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-27T21:02:36.877396+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Hane C. HARRIS, Appellant\\nv.\\nSTATE of Indiana\", \"head_matter\": \"Hane C. HARRIS, Appellant\\nv.\\nSTATE of Indiana\\nSupreme Court of Indiana.\\nMarch 14, 2019\\nDenied.\", \"word_count\": \"25\", \"char_count\": \"153\", \"text\": \"All Justices concur.\\nVaidik, C.J., Mathias, J., Crone, J.\"}"

ind/1319032.json

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+"{\"id\": \"1319032\", \"name\": \"Fleece v. O'Rear et al.\", \"name_abbreviation\": \"Fleece v. O'Rear\", \"decision_date\": \"1882-05\", \"docket_number\": \"No. 9806\", \"first_page\": \"200\", \"last_page\": \"204\", \"citations\": \"83 Ind. 200\", \"volume\": \"83\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T22:46:31.745949+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Fleece v. O\\u2019Rear et al.\", \"head_matter\": \"No. 9806.\\nFleece v. O\\u2019Rear et al.\\nPromissory Note.\\u2014 Payment.\\u2014 Decedents\\u2019 Estates.\\u2014 The application of money belonging to an estate by an administrator upon Ms individual note, which money is afterwards recovered from the payee, does not operate as a payment of the note.\\nSame.\\u2014 Vendor\\u2019s Lien. \\u2014 Husband and Wife. \\u2014 Where land for which such note is given is conveyed by the payee to the wife of the maker at the time of such application, and such wife pays no other consideration for the land, and has notice of all the facts, the payee of such note, notwithstanding such attempted payment, retains a vendor\\u2019s lien upon the land against such wife for the amount due upon such note, and this lien may be enforced against the land, notwithstanding the fact that the payee may also have the right to recover from the administrator the amount of money recovered from the payee.\\nFrom the Hendricks Circuit Court.\\nJ. V. Hadley, E. G. Hogate and R. B. Blake, for appellant..\\nL. M. Campbell, for appellees.\", \"word_count\": \"1472\", \"char_count\": \"8305\", \"text\": \"Best, C.\\nThis action was brought by the appellant against the appellees, to recover the balance due upon a note made by Robert F. O'Rear, and to enforce a vendor's lien upon certain real estate for which the note was given, against both of theappellees.\\nIssues were formed, a trial had, and a finding made against Robert F. O'Rear upon the note, and in favor of the appellee\\u00bb upon the lien.\\nAt the request of the appellant, the court found the facts, specifically, and stated its conclusions of law thereon. The facts found are in substance these: That Clinton B. Fleece-owned the lots in the complaint described, and that he sold them to the appellant in May, 1875, but did not convey them, to him; that on the 26th day of August, 1875, the appellant sold said lots to Robert F. O'Rear for $450, and said O'Rear ou that day made him the note in suit, for said sum, payable-on the 25th day of December, 1875, with interest at ten per cent., without relief, and with attorney fees, which note was given for the purchase-money of said real estate; that prior to this time said Robert F. O'Rear had been appointed administrator of the estate of William Bamish, deceased, who-left as his only heirs John Bamish, his son, and Mary O'Rear,, his daughter; that certain real estate owned by said decedent, had been sold for $3,500, and the residue divided between said John and said Mary, with an agreement that all of such money, not necessary to pay the decedent's debts, should belong to Mary O'Rear; that afterwards all the debts of said decedent were paid so far as known, and after their payment,, more than enough of money remained in the hands of the administrator, arising from such fund, to pay the note made by Robert F. O'Rear to the appellant; that thereupon it was agreed between the appellant Robert F. O'Rear and Mary O'Rear, that the appellant should cause said lots to be con veyed to Mary O'Rear, and that the note should be paid with the money in the hands of Robert F. O'Rear, supposed to belong to Mary O'Rear; that, in pursuance of such agreement, Clinton Fleece conveyed the lots to Mary O'Rear, and Robert F. O'Rear paid with said money the note to appellant, who surrendered the same; that afterwards other creditors of said decedent compelled the sureties of said administrator, of which the appellant was one, to pay a claim of $256.60, and the other sureties afterward, to wit, on the 27th day of June, 1878, recovered a judgment against the appellant for $192.45, a part of the $450 so paid by Robert F. O'Rear, upon the note of appellant as aforesaid, to reimburse them for the amount so paid by them upon said claim; that afterwards the appellant fully paid said j udgment, principal, $192.45, interest, $31.30, and costs, $22.35, in all, $246.10; that the purchase-money of said realty has not been paid otherwise than as above stated; that sufficient assets of said decedent had come into the administrator's hands with which to pay all of the decedent's debts, and leave a surplus of more than $450, which the administrator had converted to his own use, but of which the appellant and Mary O'Rear were ignorant when said arrangement was made; and that said Mary O'Rear agreed to the application of said sum to the payment of said realty, upon the condition that it should be conveyed to her.\\nUpon the foregoing facts, the court concluded, first, that .there was due and unpaid upon said note the sum of $246.10, for which the appellant was entitled to judgment against Robert F. O'Rear; and, second, that the appellant was not \\u2022entitled to a lien upon said real estate.\\nThe appellant excepted to these conclusions of law, and Robert F. O'Rear excepted to the first conclusion of law.\\nThe questions raised by these exceptions are of easy solu-tion. The application of money, which did not belong to \\u2022either Robert F. O'Rear or Mary O'Rear, in payment of appellant's note, did not operate as a payment. When the appellant was compelled to pay the money to the persons to whom it belonged, the note, though surrendered, remained in force precisely as though the application had never been made. The application of money upon the note, that did not belong to the payor, neither transferred the title to the money, nor did it extinguish the note. This conclusion was reached by the court, and hence Robert F. O'Rear was liable, for the balance due upon the note.\\nAs the note, was given for the purchase-money of the lots, and as it remains unpaid, of which Mary O'Rear had notice when she accepted the conveyance, we know of no reason why the appellant can not enforce his lien upon the land against her. Where a husband purchases real estate, executes his note for the purchase-money, and causes the real estate to be \\u2022conveyed to his wife, the vendor has a lien upon the land for the purchase-money. Martin v. Cauble, 72 Ind. 67; Humphrey v. Thorn, 63 Ind. 296.\\nThe fact that the appellant was only the equitable owner of the land, did not deprive him of the right, to enforce a vendor's lien for the purchase-money. Johns v. Sewell, 33 Ind. 1.\\nThe money applied upon the note, and subsequently recovered from the appellant, did not belong to Mary O'Rear, nor had the husband any authority to apply it upon the note in suit, and, therefore, the note was unpaid at the time the conveyance was made to Mary O'Rear, of which she had notice. Under these circumstances, 'she took the land burdened with the lien, precisely as though no payment had been attempted to be made.\\nThe fact that the husband may have been liable to the appellant for such portion of the $256.60, which he was compelled to pay to the creditors of the decedent, does not preclude him from recovering such portion of the $450 received upon his note, which he was compelled to refund to his co-sureties, to reimburse them for such portion of the $250.60 they were compelled to pay. The husband was liable to all the sureties, but this was not their only remedy. They could subject the assets of the estate, in the hands of any person with notice, to the payment of their claim. Fleece v. Jones, 71 Ind. 340. This the other sureties did, and when they compelled the appellant to refund a portion of the money paid him, he had the undoubted right to treat his note as unpaid, and enforce, if necessary, his lien for purchase-money. He may also have had the right to treat the whole sum paid by the sureties as having been paid by him, and to hold the administrator for the amount; but, clearly, he was not compelled to pursue this remedy. Nor does the fact, if such is the fact, that he is liable upon the administrator's bond, preclude him from recovering in this action.\\nUpon the facts found, we think the court erred in its second! conclusion of law, and, for this reason, the judgment should be reversed.\\nPer Curiam. \\u2014 It is therefore ordered, upon the foregoing opinion, that the judgment be and it is hereby in all things reversed, at the appellees' costs, with instructions to state conclusions of law thereon in favor of appellant, for the sum of $192.45, with interest' thereon from the 27th day of June,, 1878, and that the lots in the complaint described are subject to sale upon execution to satisfy the same, in the event that no property of Robert F. O'Rear can bo found with which to satisfy the same.\"}"

ind/1320590.json

@@ -0,0 +1 @@
+"{\"id\": \"1320590\", \"name\": \"Whiteman v. Harriman et al.\", \"name_abbreviation\": \"Whiteman v. Harriman\", \"decision_date\": \"1882-11\", \"docket_number\": \"No. 8944\", \"first_page\": \"49\", \"last_page\": \"55\", \"citations\": \"85 Ind. 49\", \"volume\": \"85\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:38:05.684610+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Whiteman v. Harriman et al.\", \"head_matter\": \"No. 8944.\\nWhiteman v. Harriman et al.\\nPbincipae and Stjbety.- \\u2014 Contribution.\\u2014 Subrogation. \\u2014 Moiigage.\\u2014A. was indebted by promissory notes to a number of persons, on one of which B. and O. were his sureties, on several others B. only was surety, and on others D. only was surety. Afterwards A. made to B. and D. a chattel mortgage, to secure the payment of all his said debts, reserving the right to possess the property and to sell it, applying the proceeds in payment of said debts, which was done in part. C. was compelled to pay the demand on which he and B. were joint sureties. Suit by C. against B. and D. for the amount he had paid.\\nHeld, that the acceptance of the mortgage did not impose upon B. and D\\u201e any joint obligation as sureties upon all the debts mentioned in the-mortgage.\\nHeld, also, that the mortgage was a security for all said debts, pro rota, so-that 0., having paid the debt on which he and B. were co-sureties, became entitled to the share applicable to that demand.\\nHeld, also, that B. was liable to O. for contribution, as a co-surety.\\nHeld, also, that D. was not so liable to C., and, not having received more than his proper share of the mortgaged goods, was not liable at all to him. IIabmless Ebbob,. \\u2014 There can be no available error in sustaining a demurrer to one paragraph of a complaint, where the plaintiff has the full benefit of the facts properly pleaded therein, under an issue formed on another paragraph.\\nProm the Newton Circuit Court.\\nW. H. H. Graham and S. P. Thompson, for appellant.\\nJ. T. Sanderson, for appellees.\", \"word_count\": \"1980\", \"char_count\": \"11513\", \"text\": \"Black, C.\\nOn the 13th of July, 1876, one William H, Harrison, as principal, and George M. Harriman and Amos O. Whiteman as sureties, executed to the First National Bank oPWatseka, Illinois, a promissory note for $309.30, payable three months after date. Said Harriman was surety for said Harrison on a number of other notes, and one Bluford Light was Harrison's surety for certain other debts, but he was not a co-surety with Harriman or Whiteman for any debt. Harrison, Harriman and Light resided in Newton county, Indiana, and Whiteman resided in Illinois.\\nOn the 17th of August, 1876, Harrison executed to Harriman and Light a mortgage upon certain personal property,, being the mortgagor's interest in a paid-up lease of a certain farm for three years from the 1st of March, 1876, the crop on said farm, certain farm products, live-stock, agricultural implements, household furniture and utensils, and one note for ninety dollars; the condition of the mortgage being, \\\" that whereas the said William H. Harrison is justly indebted to said George M. Harriman and Bluford Light, in the sums hereinafter named, as evidenced by certain promissory notes, which the said Harriman and Light have secured the payment of, to wit, one note of $310, of June 13th, 1876,, at the National Bank at Watseka, with interest thereon; one note of $340, of Eebruary 1st, to Joseph Law, and ten per cent, interest; one note of $218, of October 1st, 1875, to George M. Harriman, with ten per cent, interest; one note of $300, date about March 1st, 1874, to Thomas Askew, with seven per cent.; one note of $100, date about July 6th, 1874,, to Aletho Crowl, with ten per cent.; one note of $55, date about November, 1875, to Samuel H. Benjamin; one note of $267.65, at the bank of Ade, McCray & Co., in Kentland, and about $200, a balance due the estate of Benjamin Harrison, deceased; amounting in all, with interest, to about $2,000, all without any relief from valuation or appraisement laws; it is agreed and understood by the parties hereto, that said William H. Harrison shall retain possession of said property hereby sold, until said notes and debts hereby secured become due; the said Harrison shall have the rightto sell and dispose of any part of said property, with the consent of said Harriman and Light, and apply the proceeds of such sale or sales to the payment of said notes; and when said notes and debts have been paid in. full, and said Harriman and Light released from said security, then this obligation to be void, otherwise to remain in full force and virtue, in law; the whole, to be settled within two years from March. 1st, 1877, and if not paid within that time the said Harriman and Light shall then have the right to take and keep possession of said property wherever it may be found, without any process of law, and the same shall become the absolute property of said George M. Harriman and Bluford Light;: and the said William H. Harrison hereby expressly agrees, not to remove the said property from the place where it nor is, without the consent of said Harriman and Light, and' then to sell the same and apply the proceeds towards paying-the debts as hereinbefore stated,\\\" etc.\\nThere were various renewals of the note so made to said Watseka bank, and, a portion of it having been paid by said Harrison and Harriman, a final renewal was made November 6th, 1878, by the execution to said bank of a note for $250, clue ninety days after date, by Harrison as principal and Harriman and Whiteman as sureties. Whiteman paid this note in full soon after its maturity, and it was thereupon surrendered to him by the payee, said bank. On the 4th of March, 1879, this action was brought, by said Whiteman, the appellant, against said Harriman and Light, the appellees.\\nThe complaint was in three paragraphs. The appellees demurred -separately, for want of sufficient facts, to each paragraph of the complaint; and the demurrers were sustained to the first paragraph and overruled as to the other paragraphs. Appellees answered separately, by general denials. The cause was tried by a jury, who found for the appellant in the sum of $128.43, against appellee Harriman, and found in favor of appellee Light. Appellant moved for a new trial; and the court offered to grant him a new trial as against Harriman, but not as against Light. Appellant having declined this offer, the court overruled his motion, and rendered judgment in accordance with the verdict.\\nSustaining th\\u00e9 demurrer to the first paragraph of the complaint, and overruling the motion for a new trial, are assigned as errors.\\nThe first specification of the assignment of errors is not much pressed in argument; but we have examined the first paragraph of the complaint, and we think it showed a right of contribution against appellee Harriman, for it alleged his co-suretyship with appellant, the payment by appellant of the debt for which they were sureties, after its maturity, and the insolvency of Harrison, the principal. The paragraph also counted upon a promise and agreement of Harriman and Light, said to have been contained in a chattel mortgage, but the mortgage was not made part of this paragraph, which was, therefore, insufficient as to Light.\\nBut appellant was not harmed by the ruling on the demurrer, for the same right of contribution against Harriman was shown in the third paragraph of the complaint, and there under appellant had the benefit of his claim for contribution against Harriman as fully as he could have had it under the first paragraph.\\nThe note first mentioned in the mortgage was the note first executed, as aforesaid, to the Watseka bank, on which Harriman and appellant were sureties. Harriman was also surety on all the other items of Harrison's indebtedness mentioned, in the mortgage, except the note to Ade, McCray & Co., and the debt to the Harrison estate; and Light was surety only on said note to Ade, McCray & Co., and said indebtedness to the Harrison estate.\\nThe mortgaged property was left in the possession of Harrison, as stipulated in the mortgage, and some of the debts were paid in full and some in part. About the 1st of February, 1879, Harrison removed from the State, without the knowledge of either of the appellees. -Harriman and Light procured appraisers, who, appellant being present, appraised the mortgaged property left by Harrison upon his removal.\\nThe second paragraph of the complaint was based upon a charge of negligence of the appellees in leaving the pi'operty in the possession of Harrison, and in permitting it to be wasted and destroyed.\\nHarrison had in the mortgage reserved the right to retain possession, and the appellees do not appear, from the evidence, to have been wanting in diligence in causing the application of the property to the payment of the debts secured thereby, as provided in the mortgage, or in preserving what Harrison left behind when he removed.\\nAt the time of Harrison's removal there were unpaid by him debts mentioned in the mortgage, amounting to about \\u00a7963. Of this amount Light had paid on the note to Ade, McCray & Co., \\u00a7243. The indebtedness to the Harrison estate had been paid by Harrison. The property left by Harrison was worth about \\u00a7192. Light received, of the property so left goods worth about \\u00a749, the remainder being taken by Harriman.\\nThe third paragraph of the complaint, besides showing a cause of action against Harriman for contribution, charged Harriman and Light with having taken possession of the mortgaged property, and having appropriated it to their own use, and with failing to apply its value to the payment of the note paid by appellant.\\nCounsel for appellant insist that by the acceptance of said mortgage the appellees were jointly bound foi the application of the mortgaged property to the debts mentioned in the mortgage.\\nWithout determining whether or how far this question was involved in the issues tried, it may be said that, in giving this security to the appellees, Harrison reserved to himself the right of possession and of sale for the payment of the debts, and Light, who was not a surety for the indebtedness to the Watseka bank,- or co-surety with appellant before the execution of the -mortgage, did not become such by its acceptance ; that it was a security to each of the mortgagees for his particular liabilities, and they did not, by acceptance of the mortgage, become jointly bound to all the creditors, whose claims were further secured by the mortgage, or become sureties for each other as to those claims. As to the remnant of the property abandoned to them, each mortgagee was interested in it in proportion to the unpaid portion of the debts on which he was liable as surety; and the unpaid creditors, for whom Harriman and Light respectively were sureties, were interested in such remnant as their respective sureties were interested, and in the proportion of their respective claims, and Whiteman, having paid one of those claims, was subrogated to the right of the creditor whose claim he had paid. See Burnett v. Pratt, 22 Pick. 556; Constant v. Matteson, 22 Ill. 546.\\nLight does not appear to have received more than his reasonable proportion of the goods. Appellant may have been entitled to recover a larger amount from Harriman than was awarded by the jury, and he assigned as one ground for a new trial, that the damages were too small; but he expressly declined a new trial as to Harriman alone.\\nThe alleged grounds for a new trial, as against >Light, and the argument thereon, relate to appellant's theory of the joint liability of the mortgagees above stated, and to the question of the sufficiency of the evidence.\\nIt does not appear that the result reached as to Light was substantially incorrect, and we find no error for which the judgment should be reversed. *\\nPer Ctjriam. \\u2014 It is ordered, upon the foregoing opinion, that the judgment be and it is hereby affirmed, at the costs of the appellant.\"}"

ind/1324456.json

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+"{\"id\": \"1324456\", \"name\": \"Groves v. Cook\", \"name_abbreviation\": \"Groves v. Cook\", \"decision_date\": \"1882-11\", \"docket_number\": \"No. 10,503\", \"first_page\": \"169\", \"last_page\": \"171\", \"citations\": \"88 Ind. 169\", \"volume\": \"88\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:23:52.025947+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Groves v. Cook.\", \"head_matter\": \"No. 10,503.\\nGroves v. Cook.\\nStatute oe Fbauds.\\u2014 Gontract not to be Performed within One Year. \\u2014 Part' Performance. \\u2014 A contract not in writing, whereby the owner of a stallion furnishes the use of the horse to the mare of another and agrees to pay the latter a sum named for the resulting foal when five months old, is; in respect to the sale of the foal, within the statute, and can not be enr forced by reason of the part performance of the contract.\\nFrom the Rush Circuit Court.\\nW. A. Cullen and B. L. Smith, for appellant.\\nJ. Q. Thomas and J. J. Spann, for appellee.\", \"word_count\": \"592\", \"char_count\": \"3171\", \"text\": \"Woods, C. J.\\n\\u2014 The appellant sued the appellee for the price of a colt. The question in the case arises under that clause . of the statute of frauds which requires that contracts not to be performed within one year be put in writing. The facts, as specially found by the court, are, in substance, that the appellant, being the owner of a breeding mare, and the appellee of a stallion, it was agreed that the latter should furnish the use of his horse, and pay to the appellant $50 for the colt upon delivery of the same to him when it should be five months old. The agreement was made and the horse let to the mare on the 10th day of August, 1880; the foal was produced on the 10th day of July, 1881, and on the 12th day of December, 1881, the plaintiff offered to deliver the colt to the defendant, who refused to accept it and to pay the stipulated price. The contract was not in writing, and was plainly within the inhibition of the statute, because, according to its terms, and in the course of nature, it could not be performed within one year from the time it was made. Browne Stat. Frauds (4th ed.), chap. 13; Wilson v. Ray, 13 Ind. 1; Shipley v. Patton's Adm'r, 21 Ind. 169; Goodrich v. Johnson, 66 Ind. 258; Pierce v. Paine's Estate, 28 Vt. 34; Lockwood v. Barnes, 3 Hill (N. Y.) 128. The case last cited is distinctly in point.\\nIt is claimed that there was such a part performance as to take the case out of the statute; but the authorities cited show that this position is not tenable. In section 285 of Browne, supra, it is said: \\\" One thing is well settled and admitted in all 'Cases; that the contract must be capable of entire and complete \\u2022execution within one year. It is not enough that it may be commenced, or ever so nearly completed in that space of time.\\\"\\nIf in this case it may be said that there was a partial performance of the agreement, it was entirely to the advantage of the appellant, in that he had the use of the appellee's horse free ,cf charge, and'without liability therefor so long as he him self was guilty of no breach of the contract, or was willing to \\u2022comply with it. It is not found as a fact, and the court can not judicially say, that he suffered any loss or inconvenience, or parted with any advantage or value in the transaction. There is, therefore, no ground for saying that the refusal of the appellee to comply with the agreement operated as a fraud upon \\u2022the appellant; and without this there is neither reason nor authority for saying that the case does not come within or \\u00a1should be excepted from the operation of the statute.\\nJudgment affirmed.\"}"

ind/1324532.json

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+"{\"id\": \"1324532\", \"name\": \"Pollock v. Hastings\", \"name_abbreviation\": \"Pollock v. Hastings\", \"decision_date\": \"1882-11\", \"docket_number\": \"No. 10,385\", \"first_page\": \"248\", \"last_page\": \"251\", \"citations\": \"88 Ind. 248\", \"volume\": \"88\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:23:52.025947+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Pollock v. Hastings.\", \"head_matter\": \"No. 10,385.\\nPollock v. Hastings.\\nSlander. \\u2014 Words which do not impute a crime are not slanderous per ser as \\u201c swindler,\\u201d \\u201c cheat,\\u201d or other words charging fraud.\\nSame. \\u2014 Complaint.\\u2014Words actionable per se, if shown by the complaint to have been spoken and understood of a transaction not criminal, are not actionable, and the complaint is bad on demurrer.\\nSame. \\u2014 Innuendo.\\u2014Where it appears by the complaint that the words were spoken of a transaction not criminal, their meaning can not, by innuendo, be so enlarged as to make the complaint good.\\nSame. \\u2014 Special Damage. \\u2014 Where recovery is sought for words actionable because spoken of the plaintiff in his special calling or trade, his business must be alleged as a traversable fact.\\nFrom the Kosciusko Circuit Court.\\nC. Clemans and A. C. Clemans, for appellant.\\nL. H. Haymond and L. W. Royse, for appellee.\", \"word_count\": \"1219\", \"char_count\": \"7043\", \"text\": \"Elliott, J.\\n\\u2014 The complaint of the appellant, omitting the formal parts, is as follows: \\\"On the 15th day of April, 1880, the defendant spoke of and concerning the plaintiff, to andi in the presence of Frank Me Alpine, John G. Waldo, Nelson R. Galbreath, and other persons resident of said county and State, of and concerning a certain contract that plaintiff had of and from the director of district number nine, in Washington School Township, to Darius Pollock in October, 1879, that is to say, that in October, 1879, that he, said Andrew Pollock meaning, had in October, 1879, at a regular school meeting of the citizens of said district, met for the purpose of selling or letting the contract to the lowest bidder to furnish the wood for said district for the year 1880, to be furnished and delivered at the school-house in said district on or before the first day of April, 1880, and that plaintiff, at said meeting, was the lowest bidder and took said contract, and was to furnish twenty-five cords of good wood to said district for one dollar per cord, and the said plaintiff avers that on the 10th day of April, 1879, as before stated, and while speaking of said contract. and the circumstances connected therewith, as above stated, the defendant then and there, as a part of his said statement of said transaction, well knowing the premises, but maliciously and wilfully and wickedly intending to injure and ruin the plaintiff's fair name and fame for honesty and fair dealing among his friends and neighbors and the community in which he resided, and to deprive the plaintiff of procuring a livelihood by means of procuring such contracts, as a part of the details of said transaction then and there on said-day publicly spoke of and concerning the plaintiff the following false, defamatory, and slanderous words, to wit, that is to say, that, instead of the plaintiff, Andrew Pollock meaning, delivering good wood, as said contract called for, at said school-house, as above stated, the said Andrew Pollock, plaintiff meaning, had furnished a part of said wood that was worthless and rotten and not fit for use, and that Andrew Pollock, plaintiff meaning, had piled up the ranks with good wood on the outside and rotten and worthless wood on the inside and so covered it up that it could not be seen, and that Andrew Pollock, plaintiff meaning, had so furnished said rotten and worthless, wood for the purpose of defrauding school district number nine, by falsely pretending and representing that all of said wood was good; and further, that Andrew Pollock, plaintiff' meaning, intended when he took said contract to furnish rotten and worthless wood with the express intention of cheating, swindling and defrauding Samuel Hastings, defendant meaning, and the rest of the citizens of said school district; and the said defendant further said of the plaintiff that he was a swindler; that he was dishonest; that he would defraud any person whenever he could procure an opportunity to do so; that he was a swindler and a cheat. And the plaintiff avers that when the said words were taken together, and at the time and place when and where spoken, they had a provincial meaning, in this, to wit, that when spoken of a person in said district they were understood to mean, among the citizens of said district, that the person thus spoken of was a swindler and a cheat, .and that ho would defraud whenever he had an opportunity to do so, and that the person of whom they were spoken would obtain money and chattels by false pretences, and had obtained \\u2022money and chattels by false pretences; that the said plaintiff was greatly injured and damaged by reason of the speaking of said -words, and that said defendant intended to injure the \\u2022said plaintiff and bring him into disrepute, shame and disgrace, to his great injury and damage in the sum of two thousand dollars.\\\"\\n' We have not copied this complaint as a model of good ipleading, but for the reason that it is impossible to dispose of the questions arising in the case without setting out all of the averments of the complaint.\\nThe complaint does not set forth any words that are slanderous per se. It is not slander per se to charge a man with fraud, or to say of him that he is a cheat or a swindler. The defamatory words charged in the complaint can not be deemed to do more than characterize the appellant as a cheat and a \\u2022swindler; they do not assert that he has been guilty of any crime. There is no charge in any of the language used, that the appellant was guilty of a crime, and, therefore, the words are not actionable per se. Odgers Libel & Slander, 53.\\nIf words actionable in themselves are spoken of a transaction which is not a crime, and of which the hearers have full knowledge, they are not actionable. It clearly appears from the statements of the pleading before us that the appellee was speaking of a transaction which did not, as, all who heard him knew, constitute a crime, and therefore, even if words descriptive of a crime had been used, there would have been no actionable slander. Hotchkiss v. Olmstead, 37 Ind. 74 (see authorities, p. 80); Odgers Libel & Slander, 100, n.\\nThe allegation in the complaint that the words used had a provincial meaning, signifying that the person of whom they were spoken had obtained money or property by false pretences, does not make the complaint good. The pleading shows that the,, transaction of which they were spoken could not have constituted a crime, and that the persons who heard the words could, not have understood them as charging a crime. \\\"Where the complaint fully discloses facts showing that the words did not charge a crime, their meaning,can not be changed by the innuendo. Hotchkiss v. Olmstead, supra; McFadin v. David, 78 Ind. 445; S. C., 41 Am. R. 587, vide auth. n.\\nWhere a recovery is sought because of special injury in the way of office, profession, or business, the business or profession must be pleaded as a substantive and traversable fact. There is in the complaint before us no allegation that the business of the appellant was that of selling wood.\\nThe demurrer to the complaint was properly sustained.\\nJudgment affirmed.\"}"

ind/1327495.json

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+"{\"id\": \"1327495\", \"name\": \"Quick, Administrator, v. Durham\", \"name_abbreviation\": \"Quick v. Durham\", \"decision_date\": \"1888-04-10\", \"docket_number\": \"No. 13,031\", \"first_page\": \"302\", \"last_page\": \"306\", \"citations\": \"115 Ind. 302\", \"volume\": \"115\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T21:35:50.613437+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Quick, Administrator, v. Durham.\", \"head_matter\": \"No. 13,031.\\nQuick, Administrator, v. Durham.\\nSet-Off. \\u2014 Judgments.\\u2014 Decedent\\u2019s Estate. \\u2014 Insolvency. \\u2014 Tort. \\u2014 A. and B. effected an exchange of lands. Subsequently B.\\u2019s administrator, in an action originally commenced by B., obtained a judgment against A. for deceit as to the value of the land received in the transaction. After-wards A. recovered a judgment against the estate of B. for money which he had been compelled to pay by reason of a breach of the warranty against encumbrances contained in the deed to him.\\nHeld, that A. is entitled to have his judgment set off against the judgment in favor of the estate, although the estate is insolvent.\\nHeld, also, that the judgment against A. was not for a tort, within the proper meaning of that term, but that even if it were, the circumstances make a case for an equitable set-off.\\nFrom the Montgomery Circuit Court.\\nN. P. H. Proctor, J. Wright and J. M. Seller, for appellant.\\nP. S. Kennedy, S. G. Kennedy, G. W. Paul and J. E. Humphries, for appellee.\", \"word_count\": \"1434\", \"char_count\": \"8203\", \"text\": \"Niblack, J.\\nThis was a proceeding to have one judgment set off against another, and was based upon a motion in writing, having the form and similitude of a complaint, upon which an issue was formed by an answer in denial.\\nAt the hearing the'following facts were seemingly well established :\\nOn the 2d day of June, 1883, Marquis L. Bass, then a resident of the city of Crawfordsville, in this State, conveyed to William H. Durham, the appellee in this appeal, and, also, a resident of the same city, a lot of ground, with buildings thereon, situate in said city of Crawfordsville, by warranty deed, for the alleged consideration of nine thousand and five hundred dollars. In part payment of this sum Durham conveyed to Bass several tracts of land in the State of Iowa. The transaction was in fact an exchange of lands, in which a certain difference was to be paid by Durham. Bass had never seen the Iowa lands thus conveyed to him, but accepted them solely upon the representations of Durham as to their location, quality and surroundings, as well as their value. A few months later, Bass, complaining that all the most material representations which Durham had made concerning these lands had proven to be untrue, commenced an action in the Montgomery Circuit Court against the latter for the alleged deceit which had been thus practiced upon him. Before the cause came on for trial Bass died, andStebbins Quick, the appellant here, was appointed his administrator.\\nThe subsequent proceedings were conducted in Quick's name, and he, as such administrator, on the 3d day of November, 1884, obtained a judgment against Durham for the sum of two thousand dollars in damages. During the pend-ency of this suit, and after Bass had died, that is to say, on the 8th day of September, 1884, Durham, alleging that he had been compelled to pay a large sum in excess of what he had agreed to pay, to relieve the property conveyed to him by Bass from encumbrances of various kinds, filed a claim in the same court against the estate of Bass for the gross sum so alleged to have been overpaid.\\nUpon issue joined and a trial, Durham, in January, 1885, obtained an allowance and judgment against the estate of Bass, in the hands of Quick to be administered, for the sum of eleven hundred and ten dollars.\\nDurham thereupon proceeded to make payments from time to time upon the judgment so rendered against him in favor of the estate of Bass, until he reduced the balance due upon it to about the sum of eleven hundred and twenty dollars, and then commenced this proceeding to have his judgment against the estate set off against, and applied to the extinguishment of, the balance so due upon the judgment against him. The court below, after hearing the evidence, came to the conclusion that the amount due for principal and interest on the judgment in Durham's favor, was greater than the balance remaining unpaid on the judgment against irim, and that, notwithstanding the admitted insolvency of the estate of Bass, the former judgment should be set off against, and applied to the extinguishment of, the latter, and ordered accordingly.\\nIt was contended below, first, through the medium of a demurrer to the complaint, secondly, by answer filed to the complaint, and thirdly, under the form of a motion for a new trial, that, owing to the insolvency of Bass's estate as well as to the difference between the nature and character of the two judgments, one was not a proper set-off against the other, and that contention is continued by this appeal and renewed in this court.\\nIt has been decided, and that is now the accepted law on the subject, that a proceeding of this kind is a summary proceeding, and may be commenced by, and proceeded with, as upon a mere motion. Hence that no formal pleadings are necessary, but that the parties may, as in analogous cases, mutually resort to formal pleadings and present questions of law for decision in that way. Puett v. Beard, 86 Ind. 172 (44 Am. R. 280).\\nIt has been said, and we have no doubt rightly said, in some of our decided cases, that the question as to whether a judgment in favor of an estate ought to be set off and can-celled by one against it, is not affected by the solvency of the estate on the one hand, or its insolvency on the other. Convery v. Langdon, 66 Ind. 311; Carter v. Compton, 79 Ind. 37.\\nIf at the time of the death of the decedent the equities existing between him and one of his seeming debtors are such that the judgments which may be rendered on their respective claims ought to be set off one against the other, and that is accordingly done, then the judgment against the supposed debtor does not really constitute assets in the hands of the administrator, and the creditors have no lawful cause of complaint. This is upon the familiar principle that where items in an account against one apparently indebted to an estate are absorbed and cancelled in the settlement of mutual accounts between him and the decedent, such items do not become assets of the estate, and the creditors have no claim upon them as such, either legal or equitable. If, in such a case, nothing is left for the creditors, they are in no worse \\u2022condition than are other unfortunate creditors who have no means of enforcing payment from those indebted to them.\\nIt is true, as contended, that one judgment can properly be set off against another only when equity and good conscience shall require that such an adjustment shall be made. Puett v. Beard, supra; Beard v. Puett, 105 Ind. 68.\\nInvoking the application of this rule, it is argued that as the judgment rendered against the estate of Bass was upon -a breach of a contract of warranty, and that as the judgment against Durham was for a tort, there was no close analogy or homogeneity between the two judgments, and nothing in equity which either required or permitted them to be set off against each other.\\nIn the first place, the judgment against Durham was not for a tort, within the proper meaning of that term. It was for alleged deceit in, and, consequently, for the breach \\u00f3f, a contract in the same general sense as that on which the judgment was rendered against the estate of Bass. Actions of tort, properly speaking, are for libel, assault, trespass, and cases of that general character. In the next place, there is no such distinction between judgments ex contractu and those ex delicto as is claimed. On the contrary, it has been expressly decided that a judgment of the one class will be set off against one of the other when equity and justice will thereby be best subserved. See Carter v. Compton, supra; Puett v. Beard, supra; Butner v. Bowser, 104 Ind. 255.\\nIn the ease before us, both controversies arose out of substantially the same transaction, and the judgments resulted from breaches of mutual and concurrent contracts. There were, therefore, good equitable reasons for setting off the judgments against each other. This view receives support in principle and by analogy from the case of Judah v. Trustees of Vincennes University, 16 Ind. 56.\\nFiled April 10, 1888;\\npetition for a rehearing overruled June 23, 1888\\u00bb,\\nThe order appealed from is consequently affirmed, with costs.\"}"

ind/1351425.json

@@ -0,0 +1 @@
+"{\"id\": \"1351425\", \"name\": \"Shannon v. Hay\", \"name_abbreviation\": \"Shannon v. Hay\", \"decision_date\": \"1886-06-04\", \"docket_number\": \"No. 12,268\", \"first_page\": \"589\", \"last_page\": \"593\", \"citations\": \"106 Ind. 589\", \"volume\": \"106\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:05:39.298223+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Shannon v. Hay.\", \"head_matter\": \"No. 12,268.\\nShannon v. Hay.\\nSchool Fund. \\u2014 Auditor\\u2019s Sale of Mortgaged Land.\\u2014 When not Required to Offer in Parcels. \\u2014 The county auditor, in selling land mortgaged to the State for the use of the school fund, is not required to offer it in specific parcels, where it is described in the mortgage as a single tract.\\nQuieting Title. \\u2014 School Fund Mortgage. \\u2014 Auditor\\u2019s Sale. \\u2014 Tender.\\u2014One whose land has been sold to satisfy a school fund mortgage executed by him, can not maintain an action to quiet title against the purchaser, although the sale was void, without first paying or tendering to the latter the amount paid by him.\\nFrom the Vigo Circuit Court.\\nI. N. Pierce and T. W. Harper, for appellant.\\nN. G. Buff, H. J. Baker and J. T. Pierce, for appellee.\", \"word_count\": \"1537\", \"char_count\": \"8639\", \"text\": \"Howk, C. J.\\nAppellant, Shannon, the defendant below, assigned as error upon the record of this cause, that the trial court had erred in its conclusion of law upon its special finding of facts.\\nThe facts found specially by the court were in substance as follows:\\nThe appellee, Hay, on January 13th, 1865, made the following note and mortgage to the State of Indiana, to wit: Here follows what purports to be the copy of a mortgage executed by Hay to the State of Indiana, for the use of congressional township 10 north, range 9 west, of Vigo county,, of a tract of land of the same description as that given in Hay's complaint herein, to secure the payment of $300, with interest at the rate of 8 per cent, per annum in advance, according to the conditions of the note thereto annexed, and what purports to be a copy of such note. Appellee paid interest on such note and mortgage from 1865 to 1872 inclusive, to wit, $21 each year, and from 1873 to 1876 inclusive, to wit, $24 each year; and such annual payments of $24 wer\\u00f3 made at the request of the county treasurer and auditor, without any special contract, in writing or otherwise, for him so to do. Appellee failed to pay the interest for 1877, 1878 and 1879. The county auditor advertised the land in controversy, together with other tracts of land belonging to other parties, all in the same notice, in the Terre Haute Gazette, as follows: Giving a copy of the notice.\\nThe only proof that the notices were posted in the township, in which the land was situate, was the following certificate of Louis Hay, then the sheriff of Vigo county, but since dead, who was requested to post such notices by the then auditor of Vigo county: Setting out what purports to be a copy of such sheriff's certificate.\\nNewton Rogers, treasurer of Vigo county, made the following certificate, which was signed by him and the auditor of such county, and recorded in the auditor's office and filed in the treasurer's office: Here follows what purports to be a copy of such certificate.\\nBefore the commencement of this suit appellee did not make, nor had he made at any time since, any tender of the amount due on such note and mortgage. The tract of land so mortgaged contained 152 acres, consisting of three \\\"full forties \\\" and a \\\" fractional forty,\\\" in the northwest quarter of section 20, township 13, range 9 west, in Vigo county, Indiana, and was of the value of $5,000.\\nThe county auditor offered such land as follows : \\\" Who will take the whole tract and pay the sum of $348 therefor ? \\\" And Patrick Shannon bid the sum of $355 for the whole tract. The auditor then said : \\\" Who will take a less quantity than the whole tract and pay the amount due on such note and mortgage?\\\" No one offering to take a less quantity than the whole tract, the whole tract was then offered, and Patrick Shannon bidding $355, the whole tract was struck off to him for such sum of $355, which sum he paid to the-county treasurer and took his receipt therefor.\\nSuch land was susceptible of division, and might have been sold in parcels, without injury to the whole; and the land was not offered in parcels, except as aforesaid. The county auditor, after having executed the following deed to Patrick Shannon, recorded the same in the proper order-book of the county commissioners, and afterwards delivered the same to said Patrick Shannon. Here follows what purports to be a copy of such auditor's deed to Patrick Shannon.\\nUpon the foregoing facts the court stated as its conclusion of law, that the sale of such land was illegal and void, the land not having been offered in parcels, as required by law.\\nDid the trial court err in its conclusion of law upon the facts specially found? We are of opinion that this question must be answered in the affirmative. This is not a case where-the officer selling the land is required to offer and sell the land in separate and distinct parcels ; unless, indeed, it appears on the face of the mortgage that several separate and distinct parcels, lots or parcels of land are described therein. In this latter case, the statute expressly requires that the auditor shall elect in advance of the sale which one of the several-lots or tracts shall be first sold, \\\" saving to the mortgagor, if .practicable, the tract on which his house is located; \\\" and in such case, of course, the auditor must sell in parcels. Benefiel v. Aughe, 93 Ind. 401; section 4392, R. S. 1881.\\nIn the case in hand, however, the land in controversy was described as an entirety, or as one single tract or lot, in appellee's mortgage to the State, as follows : \\\" That part of the northwest -quarter of section 20, in township 13 north, of range 9 west, which lies south of the road leading to Durkec's ferry.\\\" In such a ease, while the statute contemplates the sale of a less quantity than the Whole tract, if any one will pay the amount due on the note and njprtgago for such less' quantity, yet it is clear, we think, that'' the auditor is not, required to offer any certain or specific less quantity or parcel \\u2022of the whole tract, because-.fiie statute expressly provides that, where a less quantity than the whole tract is bid for by one who will pay therefor the entire amount due, such quantity shall be taken in a square form, as nearly as possible, off of the northwesterly corner of said tract.\\\" Section 4392, supra. Bonnell v. Ray, 71 Ind. 141.\\nThe facts found by the court in this case show, we think, \\u2022that the land in controversy was offered and sold by the auditor of Vigo county, in so far as the mode of crying the sale is concerned, in substantial compliance with the requirements of the statute. Therefore, it follows that the court erred in its conclusion of law, and for this error the judgment below must be reversed. The facts of the ease have been so imperfectly found, and so many matters of evidence merely, in lieu of the facts which such evidence would possibly tend to prove, are erroneously set out in the special finding of facts, that we can not remand the cause with instructions to state other conclusions of law upon such special \\u2022finding, but must instead remand the same for a new trial.\\nBesides, the appellee has sued in this case to have his title \\u2022to the land in controversy quieted, as against appellant, by the decree of the court. When, therefore, the trial court found, as it did, that the appellee had never, at any time, before or since the commencement of his suit, paid or tendered to appellant the amount paid by him in satisfaction of appellee's note and mortgage and interest thereon, we are of \\u2022opinion that the court ought to have promptly dismissed the suit at appellee's costs. For, however erroneous the auditor's sale and conveyance of the land to appellant may pos \\u00a1sibly have been,.it is certain that such sale and conveyance resulted in the payment by appellant of appellee's note and mortgage to the State, for the use of its school fund. In such case, even though such sale and conveyance were illegal and void, the appellee con not be heard in a court of equity to ask that such sale and conveyance be set aside and declared void, until it appears that he has first done, or offered to do, what equity requires of him, namely, the payment or tender to appellant of the amount paid by'him as aforesaid, in satisfaction of appellee's note and mortgage. This is the doctrine declared in many of our cases, which can not be distinguished, in principle, from the case- in hand. Harrison v. Haas, 25 Ind. 281; McWhinney v. Brinker, 64 Ind. 360; Lancaster v. DuHadway, 97 Ind. 565; Rowe v. Peabody, 102 Ind. 198.\\nFiled June 4, 1886.\\nThe judgment is reversed with costs, and appellant's death having been shggested, upon the petition of Thomas A. Anderson, administrator of such decedent's estate, he is substituted as the appellant in this cause, and this judgment is rendered in his favor.\"}"

ind/1378695.json

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+"{\"id\": \"1378695\", \"name\": \"Lyman Johnson v. John L. Mills\", \"name_abbreviation\": \"Johnson v. Mills\", \"decision_date\": \"1973-09-20\", \"docket_number\": \"No. 1-173A16\", \"first_page\": \"620\", \"last_page\": \"626\", \"citations\": \"157 Ind. App. 620\", \"volume\": \"157\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T02:32:18.621181+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lyman Johnson v. John L. Mills.\", \"head_matter\": \"Lyman Johnson v. John L. Mills.\\n[No. 1-173A16.\\nFiled September 20, 1973.]\\nJames J. Stewart, Harold E. Atherly, Stewart, Irwin, Gil-liom, Fuller and Meyer, of Indianapolis, for appellant.\\nJohn F. Townsend, Jr., W. Scott Montross, Townsend, Hovde & Townsend, of Indianapolis, for appellee.\", \"word_count\": \"1895\", \"char_count\": \"11004\", \"text\": \"Robertson, P.J.\\nDefendant-appellant (Johnson hereafter) is appealing a jury verdict of $36,000 rendered against him and in favor of plaintiff-appellee (Mills) in a personal injury suit. The action was commenced by the filing of Mills' complaint which alleged, inter alia, that on May 6, 1968, Johnson was operating a 1951 Chevrolet truck south on North Madison Avenue in Greenwood, Indiana, which struck and thereby permanently injured Mills who was laying sod along the west side of Madison Avenue at the time. The complaint further alleged that at the time Mills was struck he was working immediately to the west of the curb and that Johnson was negligent in the following respects:\\n\\\"(a) Failed to keep a reasonable lookout so as to observe plaintiff.\\n(b) Failed to keep Ms veMcle under control by turning the wheel and steering same so as to avoid running into and striking plaintiff.\\n(c) Failed to reduce his acceleration and apply his brakes to avoid running into and striking plaintiff.\\n(d) Failed to restrict his speed to avoid colliding with plaintiff.\\n(e) Drove his vehicle off of the east [west] edge of the highway and directly into plaintiff.\\n(f) Failed to blow his horn or give plaintiff any other warning that he was about to run into and strike him when he knew or should have known that plaintiff was close to the highway and that defendant was driving dangerously close to plaintiff.\\\"\\nThe issues as raised by Johnson's Motion to Correct Errors, which was overruled, and argued on appeal, are threefold: was there sufficient evidence to support the jury's verdict; did the trial court err in overruling Johnson's motion for partial judgment on the evidence at the close of plaintiff's evidence; and did the trial court err in giving certain plaintiff's instructions.\\nBefore determining the sufficiency of the evidence it should be pointed out that in so doing we are bound by the well established rule that only the evidence most favorable to the appellee may be considered and we can neither weigh the evidence nor determine the credibility of witnesses. Nugent v. Smith (1972), 153 Ind. App. 484, 287 N.E.2d 899; Engelbrecht v. Tri-State Franchisers, Incorporated (1972), 153 Ind. App. 350, 287 N.E.2d 365; Wm. 3. & M. S. Vesey, Inc. v. Hillman (1972), 151 Ind. App. 388, 280 N.E.2d 88.\\nDue to the fact that there were no eyewitnesses, other than the defendant Johnson himself, to the actual striking of Mills, much of the circumstances of this incident must be constructed from the testimony of witnesses who made observations immediately prior to or after Mills was struck. It would appear that a great deal of the factual dispute between the parties turns on the question of whether Mills was located to the west of the curb or in the street at the time he was struck. One witness for plaintiff who was employed on- the same work crew placed Mills approximately a foot or more west of the curb of the southbound lane of Madison Avenue immediately prior to being struck. Mills, according to the witness, was rolling out sod with his back to the road and facing south or southwest. The witness could not make a definitive statement as to whether or not the wheels of Johnson's vehicle came over the curb. The witness did, however, state that he saw the truck fender come over the curb. A second witness for plaintiff, who was also a member of the work crew, testified that immediately prior to the accident Mills was standing to the west of the curb but he did not know the exact location of Mills when he was struck. The same witness testified that he observed a black tire mark on the curb after Mills was struck which was not there before. The plaintiff Mills testified that prior to the accident he was unrolling a strip of sod next to the curb with his body facing to the south. Mills stated that he was leaning over and backing up as he unrolled the sod and while so doing he was struck without warning in the buttocks by the Johnson vehicle. Mills further testified that he was not in the street but was standing next to the curb in the area in which he was laying sod.\\nIn conflict with Mills' testimony was that of the defendant Johnson, who testified that as he approached the scene of the accident he observed Mills in the street. Johnson stated that he slowed down and when the front end of his truck came even with Mills, Mills started backing up. Johnson further testified that he was never closer than three to four feet away from the curb and that it was the right hand door of his truck which struck Mills.\\nIn an effort to prove that Johnson's truck did not go over the curb, an accident reconstruction expert testified on behalf of Johnson that the force of a vehicle going up and over a curb, under circumstances similar to this accident, would cause identifiable damage to the wheel rim, the tire, the curb, and to the area in which the vehicle would come down beyond the curb. The witness stated that he inspected the curb, the truck, and photographs of the truck and he found no damage to any of the vehicle's wheel rims. Johnson's expert witness also testified that his inspection of the truck revealed damage to the right front fender which appeared to be quite old by virtue of the presence of rust and damage to the passenger side door which was not rusty and appeared to be recent. In his opinion the damage to the right front fender was not caused by striking a human body, but the damage to the door could have been caused by a human body. The police officer who investigated the accident testified that immediately subsequent to the accident he observed no tire marks on the curb or in the area beyond the curb.\\nThe substance of Johnson's argument regarding the insufficiency of the evidence is that there was no substantial evidence offered by Mills during the trial on any of the allegations of negligence other than the allegation in which Mills averred that Johnson drove his vehicle off the west edge of the highway and directly into plaintiff. Johnson argues that a verdict based on that allegation is not supported by sufficient evidence in that such a finding would be contrary to the physical facts of the accident as constructed by the testimony of his expert witness and the investigating police officer. The jury's verdict, Johnson contends, could have only been based on a supposition that the truck jumped the curb. Johnson argues that such a supposition is contrary to the physical facts and could only be based on the unsupported testimony of Mills that he was not in the street when he was struck. Because Mills' testimony on this question was contrary to the physical facts, Johnson urges, it was of no probative value and the jury should not have been allowed to rest its verdict thereon. We do not agree with Johnson's contention.\\nIn the case of Connor v. Jones (1945), 115 Ind. App. 660, 59 N.E.2d 577, where the jury's verdict was assailed because it was contrary to the physical facts, the court stated the following rule of law:\\n\\\". . . the testimony of a witness which is opposed to the laws of nature, or which is clearly in conflict with principles established by the laws of science, is of no probative value and a jury is not permitted to rest its verdict thereon. [Citing authorities.] This rule is frequently applied to the testimony of one who says he looked but did not see an object, which, if he had looked, in the very nature of things, he must have seen. However, where a court cannot say as a matter of law that the testimony of a witness is contrary to scientific principles, the law of nature or the physical facts, the question of whether such testimony does so conflict is one of fact for the jury to determine. [Citing authorities.]\\\" Connor v. Jones, supra, 115 Ind. App., at p. 670. See also Gibson Coal Company v. Kriebs (1971), 150 Ind. App. 173, 275 N.E.2d 821.\\nThere is evidence from which the jury could have concluded that a portion of Johnson's truck extended over the curb striking Mills while he was standing near the curb.\\nThe second issue raised by Johnson is closely related to the first. Johnson maintains that because Mills failed to offer any evidence of a substantive nature on allegations (a), (b), (c), (d), and (f) of his complaint the trial court should have granted Johnson's motion for partial judgment on the evidence at the close of plaintiff's evidence. We cannot agree with Johnson's position. The validity of a directed verdict on a certain issue depends upon a total absence of evidence or reasonable inference therefrom on an essential element of the plaintiff's case. The evidence must be without conflict and susceptible of but one inference in favor of the moving party. Mamula v. Ford Motor Company (1971), 150 Ind. App. 179, 275 N.E.2d 849. In this case, as in Mamula, supra, there was evidence in some amount on the respective allegations of negligence to allow the issue through'\\\"the door of the jury room.\\\"\\nJohnson's final argument is directed to certain plaintiff's instructions which were given over his objection. It is alleged that there was no evidence to warrant giving an instruction on assessment of damages; Johnson's duty to exercise reasonable care to avoid colliding with a person near the highway; and Johnson's duty to maintain a reasonable lookout. Since we have previously approved submission to the jury of the issues formed by Mills' allegations of negligence, we likewise hold that there was evidence to justify the instructions regarding avoiding collision and maintaining a lookout. In a similar manner there was evidence from Mills and his physician which would warrant the damages instruction.\\nJohnson's final argument is that the following instruction is mandatory:\\n\\\"You are instructed that it is not necessary for John Mills to have introduced evidence as to the monetary value of any pain, suffering, mental anguish or disability suffered by him, but it is only necessary that he has proved to you by a fair preponderance of the evidence the nature and extent of such injury, pain, suffering, mental anguish or disability, and it is your duty as jurors to fix the monetary value of such pain, suffering, mental anguish or disability.\\\"\\nThe case of Perry v. Goss (1970), 253 Ind. 603, 255 N.E. 923, defines a mandatory instruction as one which directs the jury to a certain result. General statements of the law and its applicability to the case are necessary to properly instruct the jury. We are of the opinion that the quoted instruction falls into the latter category and does not possess the qualities of an erroneous mandatory instruction. See Perry v. Goss, supra.\\nJudgment affirmed.\\nLowdermilk and Lybrook, JJ., concur.\\nNote. \\u2014 Reported at 301 N.E.2d 205.\"}"

ind/1378821.json

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+"{\"id\": \"1378821\", \"name\": \"Cicero Township v. Picken et al.\", \"name_abbreviation\": \"Cicero Township v. Picken\", \"decision_date\": \"1890-02-21\", \"docket_number\": \"No. 15,189\", \"first_page\": \"260\", \"last_page\": \"266\", \"citations\": \"122 Ind. 260\", \"volume\": \"122\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T22:19:56.010720+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Cicero Township v. Picken et al.\", \"head_matter\": \"No. 15,189.\\nCicero Township v. Picken et al.\\nJudgment. \\u2014 Collateral Attach. \\u2014 Absence of Summons. \\u2014 Appearance by Counsel. \\u2014Township.\\u2014 Merger of Written Obligations in Judgment. \\u2014 Fraud.\\u2014Complaint. \\u2014 The complaint in this case states, among other things, that theretofore a judgment had been rendered against the plaintiff, a township, on certain obligations against the township issued by the trustee thereof; that no summons had been issued in the original action ; that an appearance for the township had been entered by its attorneys, one of whom was a surety on the trustee\\u2019s bond; that said attorneys filed an answer admitting the legality of the claim, except as to certain items, and permitted judgment to be rendered against the township. It alleges, further, that the obligations upon which the judgment was rendered were issued without authority or right, and in violation of statute, and concludes with a prayer for the setting aside of the judgment, etc.\\nHeld, that the judgment in the original action could not be successfully attacked in this collateral proceeding.\\nHeld, also, that the writings sued upon were merged into the judgment which the court rendered, and so long as it remains undisturbed the validity of said obligation is not an open question.\\nHeld, also, that the complaint does not state facts sufficient to constitute a fraud, practiced by the plaintiffs in the original action, or any one in their behalf, either upon the court or the defendant, as the result of which the judgment was obtained.\\nFrom the Tipton Circuit Court.\\nW. R. Oglebay and C. N. Pollard, for appellant.\\nJ. N. Waugh and J. P. Kemp, for appellees.\", \"word_count\": \"2131\", \"char_count\": \"12324\", \"text\": \"Berkshire, J.\\nThe second paragraph of the complaint, which is the only paragraph brought to this court, was filed by the appellant, who was the plaintiff below, on the 13th day of September, 1889. The substance of this paragraph of complaint is, that on the 7th day of April, 1884, one Henry C. Finney was duly elected to the office of township trustee of said Cicero township, and was duly inducted into office; and was again duly elected on the 5th day of April, 1886, and was duly inducted into office, and continued as such trustee until the 13th day of April, 1888 ; that while in said office the-said Finney, as such trustee, executed certain pretended written evidences of indebtedness against said township, and certain written pretended obligations of the said township to pay certain sums Of money at times in said writings named; the amount of said obligations, when due, to whom payable,and when dated being given; that all of said pretended evidences of indebtedness were assigned, by endorsement, to the appellees, except one, which has no endorsement upon it; that on the 14th day of December, 1887, the appellees filed a complaint in the office of the clerk of the Tipton Circuit Court, against said township (the appellant) based exclusively upon said pretended written obligations, but at no time caused any summons to issue upon said complaint; that on the 19th day of December, 1887, an appearance was entered to said action in the name of Gifford & Fippen, as attorneys for the appellant, and an answer filed admitting the legality of the appellees' claim in said cause, except as to interest in excess of six per cent, and attorney's fees claimed, and made no other issue therein; that the said Gifford was then one of the sureties on the official bond of said Finney, trustee as aforesaid, and was such surety during his entire term of office, and was such surety at the time he appeared to said action; that the said Finney was then, and has since been, wholly insolvent; that the said Gifford was then, as such surety, liable for every default of said trustee; that on the 24th day of December, 1887, tire appellees procured a judgment to be rendered on their said qlaim in said action against the appellant, for the sum of $2,496.95, with costs of suit, which still remains in force upon the records of said court, and is still owmed and controlled by the appellees; that said judgment is null and void in this, that said supposed debts, and each and all of them, were, when contracted by said trustee, in excess of the fund then in the hands of such trustee to which said indebtedness was chargeable, and in excess of the funds to which said debts were chargeable, to be derived from the tax assessed against said township for the proper year; that the said trustee did not, at any time, procure an order from the board of commissioners authorizing him to contract such indebtedness, or any part of it; that said supposed indebtedness was contracted in violation of sections 6006 and 6007, R. S. 1881; that said apparent indebtedness was a fraud upon the appellant; that one Harrison A. Woodruff was duly elected and inducted into office as the successor of said Henry C. Finney, and is now filling said office, and has procured this suit to be instituted to have the appellant relieved from said judgment; that he instituted this suit as soon as he discovered the facts herein alleged, or could have done in the exercise of reasonable diligence.\\nThere is then a prayer that said judgment be set aside, and that the appellant be allowed to defend the said former action.\\nThe court sustained a demurrer to the said second paragraph of complaint and to the ruling of the court, an exception was reserved.\\nThe appellant having refused to amend its complaint, judgment was rendered against it for want of a sufficient complaint, and from that judgment this appeal is taken.\\nThe only question raised by the assignment of error is as to the sufficiency of the said paragraph of complaint. It is not claimed by counsel for the appellant that the cause of action alleged brings the case within any of the statutory provisions for relief'against judgments.\\nThe theory of the complaint is, that the equity powers of the court are such as to cover the case made, and that on equitable grounds the appellant is entitled to the relief sought. As was said in the case of Weiss v. Guerineau, 109 Ind. 438 (443): \\\" Methods for obtaining a new trial, or to review a judgment for material new matter, or for error of law, are pointed out by the statute, and beyond the methods thus prescribed courts possess inherent power to an almost unlimited extent, to redress wrongs by modifying or setting aside judgments obtained by fraud or mistake.\\\"\\nWe may concede, for all the purposes of this case, that the written obligations issued by Finney, as trustee, upon his township, were void, and that had the original action been rigorously defended the appellant would have succeeded in defeating a recovery, and then the inquiry confronts us: Does the complaint allege fraud or mistake in the obtainment of the judgment against which relief is sought? If not, then the demurrer was rightfully sustained thereto. It is not claimed that there was any mistake because of which the appellant suffered or permitted the judgment to be rendered. If the complaint is to be upheld on any ground, it must be because the judgment is tainted with fraud; fraud upon the court or upon the appellant, but for which there would have been no such judgment.\\nIn this State there is no such thing as constructive fraud; by statute the question of fraud is made a question of fact. Section 4924, R. S. 1881; Rose v. Colter, 76 Ind. 590; Leasure v. Coburn, 57 Ind. 274; Bentley v. Dunkle, 57 Ind. 374.\\n\\\" By our statute the question of fraud is made one of fact, and where fraud is essential to the existence of a cause of action it must be found as a'fact, and not left to be inferred as a matter of law.\\\" Phelps v. Smith, 116 Ind. 387.\\nThe writings sued upon were merged into the judgment which the court rendered, and so long as it remains undisturbed the validity of the obligations, and the liability of the appellant for their payment, are not open questions.\\nThe law conferred upon the court jurisdiction of the subject-matter of the action, and the appellant's appearance jurisdiction over the person, and when the power of the court was called into action every question necessary to fix the appellant's liability was involved, and the court's final determination, whether right or wrong, is conclusive upon all of the parties until set aside, or overturned, by some competent authority; and until this is don\\u00e9 the appellant will not be heard to say, for any purpose, or upon any ground, that the claims that were sued upon were not valid, and upon which there was no legal liability.\\nWe come back, then, to the question, does the complaint charge facts sufficient to constitute a fraud practiced by the appellees, or any one in their behalf, either upon the court or the appellant, as the result of which the judgment was obtained?\\nWe do not think'it does. The court was open, and the appellees had a right to go into it with their alleged cause of action.\\n. It is true, they caused no summons to issue, which is rather an unusual circumstance in the institution of adversary proceedings in courts of justice, but not wholly without precedent. But, standing alone, this circumstance is of no moment, for the reason that the appellant had the right to waive process, and enter an appearance to the action ; and when so entered the judgment thereafter rendered was just as binding, and had the same force and effect, as though a summons had been issued and served. The only' purpose of a summons is to give to the party defendant notice that an action is pending against him, that he may have an opportunity to prepare and make such defence to the action as he may have; and if he sees proper to appear and waive notice, neither he nor any one else can complain because of the failure to have process issued.\\nIt is not alleged that the appellant's trustee, and the appellees, had any understanding, or agreement, in reference to the institution of the action, or the appearance of the appellant without notice, and without such an averment we must infer that there was no such understanding; and, if not, the appellees can not be made to suffer for what the appellant did, no difference what may have been the purpose of its agent having authority to act for it in the matter.\\nIt seems that one of the two attorneys who appeared for the appellant, and filed its answer, was a surety on the bond of the appellant's then trustee, but it is not averred that the appellees knew that fact, or had anything to do with the selection of the attorneys who appeared for the appellant.\\nSuppose it were conceded that the then trustee employed the attorneys who appeared to the action for the purpose of enabling the appellees to obtain judgment promptly, and without litigation, but without knowledge on the part of the appellees that what was being done was not in good faith, the appellees could not be prejudiced thereby; it notappearing that the court was in any way deceived by the action of those representing the appellant, and thereby induced to render a different judgment than it would otherwise have rendered.\\nThe fact that one of the attorneys for the appellant was on the bond of the trustee did not make it improper for the attorney, either alone, or as the associate of some other attorney, to appear for the appellant in said action.\\nThere are no facts alleged tending to establish bad faith on the part of the appellees, either in the institution of their said action, or its prosecution to final judgment. If the.contention of appellant's counsel can be maintained, judgments rendered against public corporations are of no binding force, and have no validity, if the corporation, as it turns out, could have successfully defended the action on the ground of want of power to enter into the obligation sued on.\\nFiled Feb. 21, 1890.\\nNotwithstanding all of the allegations in the complaint, it does not appear that any fraud was practiced upon the court by anybody, nor that the appellees acted otherwise than in the utmost good faith, nor .that the attorneys representing the appellant did not do what they believed, at the time, was-the best that could be done in the interest of the appellant.\\nThe appellant had its day in court, was represented by counsel and can not at this day successfully attack the said judgment in this collateral proceeding.\\nJudgment affirmed, with costs.\"}"

ind/1385383.json

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+"{\"id\": \"1385383\", \"name\": \"Durham v. Musselman\", \"name_abbreviation\": \"Durham v. Musselman\", \"decision_date\": \"1827-11-09\", \"docket_number\": \"\", \"first_page\": \"96\", \"last_page\": \"99\", \"citations\": \"2 Blackf. 96\", \"volume\": \"2\", \"reporter\": \"Blackford\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:29:56.523649+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Durham v. Musselman.\", \"head_matter\": \"Durham v. Musselman.\\nA declaration contained two counts. The 1st stated that the defendant, on his unen7 closed land in the county, cut a tree so that it was nearly ready to fall, and set it on lire; and that the tree a/tenvards fell upon and killed the plaintiff\\u2019s horse. The 2d count stated, that the defendant, knowing the plaintiff\\u2019s horse to be running at large in the unenclosed lands of the county, and maliciously contriving to injure the plaintiff, unlawfully and negligently cut a tree in the county and set it on fire; and that the tree afterwards, in consequence of the cutting and burning, fell upon and killed the plaintiff\\u2019s horse.\\nHeld) that the declaration contained no cause of action.\\nFriday, November 9\\nERROR to the Johnson Circuit Court.\", \"word_count\": \"1435\", \"char_count\": \"8142\", \"text\": \"Holman, J.\\nDurham., in his declaration against Musselman, charges in the first count that Musselman, on his unenclosed land in Johnson county, cut a large tree so that it was nearly ready, and always liable to fall, and then built a fire around it, and negligently and unlawfully left it burning, and always liable to fall; which tree, afterwards, on the same day, fell upon and killed the mare and colt of the plaintiff. In the second count, he states that his mare and colt were running at large, in the unenclosed lands in Johnson county, and that the defendant knowing the same, hut contriving maliciously to injure the plaintiff, unlawfully, carelessly, and negligently, cut a large tree in Johnson county, and then built a fire around said tree, and left the'same always liable to fall; which tree, by the said cutting and burning, afterwards, on the same day, fell upon and killed the said mare and colt. To this declaration the defendant demurred and had judgment.\\nThis case seems to rest in some measure upon the peculiar customs of this country. It is well known, that horses and cattle are permitted to run at large through the country, and particularly in the new settlements, in one of which this transaction took place; and are not considered as trespassing by entering the unenclosed lands of any person. So that the defendant cannot resist this action, on the ground that the mare and colt of the plaintiff were trespassing on his lands when they were killed. Nor can the defendant sustain his defence, even on the first count in the declaration, on his supposed natural right of doing what he pleases on his own land; for a man should so use his own property as not to injure the property of another. But this principle of common justice does not render a man liable, as a matter of course, for every injury another may sustain from his use of his own property. It is only when he deviates, either by intention or neglect, from the ordinary use of Ms property, that he can be considered liable for an injury thereby done to another. Even then, his liability depends on the nature of his act, and the probability that such an act would occasion an injury to another. If the act was unlawful, as laying a log in the highway, he would be liable for an injury done thereby, without any reference to the probability, thatit would occasion that particular injury. But when the act is lawful, the liability of the actor, for an injury occasioned by it, depends, in the first place, on the question, whether the injury is the natural or probable consequence of the act, or is merely accidental. If the injury is the natural or probable consequence of the act, and such as any prudent man must have foreseen, it is but reasonable that the perpetrator of the act, should be held accountable for the injurious consequences. As, in the case of the man baiting his traps with flesh so near the highway, or the grounds of another, that dogs passing the highway, or kept in another's gi'ounds, arc attracted into his traps, and thereby injured; he is liable for the injury. Townsend v. Wathen, 9 East, 277. In the second place, when the injury is accidental, the liability of the actor must depend \\u00f3n the degree of probability there was, that such an event would be produced by the act.\\nTesting this case, as it stands in the first count, by these rules, it is evident that the cutting or burning down of a tree, on a man's own land, whether enclosed or otherwise, is not an unlawful act. The charge in the declaration that it was unlawfully done, amounts to nothing, where there are no circumstances to warrant such a charge. In removing the heavy forests with which our lands are covered, we see it to be a very general practice, to girdle the trees, and leave them to die and fall according to the course of nature. If the trees so girdled fall upon the cattle of others, running at large, the person who girdled the trees is not liable for the injury. Every person suffering his cattle to run at large through the forest, must be considered as running the risk of their being killed by the trees so girdled. Another method used for the destruction of timber, is to employ fire for the removing of such trees as arc susceptible of being felled.by burning. This practice, though not so common as the former, and perhaps more dangerous, is by no means unlawful. The destruction of the cattle of others, is not the natural or probable consequence of such a practice. If cattle are thereby destroyed, it can only be considered as accidental; and the circumstances of the case would determine what degree of probability there was that such would be the consequence. The simple act of leaving a tree on fire., which must of necessity burn down in a short time, and which in its fall killed the plaintiff's mare and colt, is not such an act, under the existing state of things in this country, as would render the actor liable to the injured person. So that under the first-count in the declaration, the plaintiff cannot maintain his action.\\nThe second count presents the case a little differently. It does not state that the tree was on the lands of the defendant, but in Johnson county; but as it is not suggested in the decla-r ration, nor pretended in argument, that the defendant had done any wrong as it respected the tree itself, or was infringing the right of any person by molesting the tree, this difference in the two counts can make no difference in the defendant's liability. But this count states that the defendant, contriving maliciously to injure the plaintiff, cut the tree and set it on fire; but this cannot materially alter the case. The averment of malice has no connection with the injury of which the plaintiff complains. Had the injury been the natural or probable consequence of the act, a malicious design might have been connected with it. But to connect a malicious design to injure, with the burning of a tree in Johnson county, because the defendant knew that the plaintiff had a mare and colt running at large in Johnson county, seems to be forced and unnatural.\\nSrveeiser, for the plaintiff.\\nWick, for the defendant.\\nWe cannot have a definite idea of a design to injure, unconnected with some degree of probability, that the means made use of would effect the design. Although the plaintiff's mare and colt were running at large in Johnson county, yet the probability of injuring either of them by burning down a tree in that county, is so very remote, that we cannot connect it with the idea of design or contrivance. Many thousands of trees might have been left to bum down in that county, on the same day, without injuring the plaintiff's mare or colt. In order to have given materiality to the charge of malice, the declaration should have shown, that there was some degree of probability, that the burning down of the tree would have done the plaintiff an injury; as, that the tree stood near, and would probably fall where the defendant knew the plaintiff's mare and colt were usually, or frequently feeding, passing, or standing; and then the materiality of the charge of malice would depend on the degree of probability. Without showing some such probability of doing an injury, the charge of malice amounts to nothing. So that the action cannot be supported on either count in the declaration.\\nPer Curiam.\\nThe judgment is affirmed with costs.\"}"

ind/1398658.json

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+"{\"id\": \"1398658\", \"name\": \"Jeffersonville, Madison, and Indianapolis Railroad Company v. Bowen\", \"name_abbreviation\": \"Jeffersonville, Madison, & Indianapolis Railroad v. Bowen\", \"decision_date\": \"1872-11\", \"docket_number\": \"\", \"first_page\": \"545\", \"last_page\": \"552\", \"citations\": \"40 Ind. 545\", \"volume\": \"40\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:31:24.151706+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jeffersonville, Madison, and Indianapolis Railroad Company v. Bowen.\", \"head_matter\": \"Jeffersonville, Madison, and Indianapolis Railroad Company v. Bowen.\\nMotion for. New Trial.\\u2014Evidence.\\u2014That \\u201cthe court erred in admitting evidence to go to the jury over the objection of the defendants,\\u201d as a reason for a new trial, is too general, in not pointing out the evidence.\\nBill of Exceptions.\\u2014Evidence.\\u2014Inspection by Jury.\\u2014A bill of exceptions \\u2022 may contain all the'evidence, although it appear that the jury were pllowed to inspect the place where the matters referred to in the pleadings occurred. The Evansville, etc., Eailroad Co. v. Cochran, io Ind. 560, overruled.\\nRailroad.\\u2014Injury to Child.\\u2014Negligence of Parent.\\u2014Allowing a child under-five years of age to be upon a railroad track unattended, where cars are passing hourly, and where its presence may be undiscovered by the persons in control of trains, is negligence in the parent, which will defeat a recovery by the parent for injury to the child, unless such injury be wilful.\\n\\u2022APPEAL from the Jefferson Circuit Court.\", \"word_count\": \"2837\", \"char_count\": \"15728\", \"text\": \"Downey, J.\\nThe appellee sued the appellant, alleging in his complaint that William B. Bowen, five years of age, his son and servant, residing with him, was lawfully upon the railroad track upon a public street .in Madison, near the dwelling-house of the plaintiff, without any fault or negligence of the plaintiff, when, in full sight of the servants of the defendant operating the locomotive and cars of the company, while he was standing near and behind a car that had been carelessly left standing on the track, and when it was known to the servants of the defendant that he was so standing there, and while he was in speaking distance of them, and they could easily have informed him or lifted him out of the way had they so desired, without ringing the bell, blowing the whistle, or giving any signal whatever of their approach, the said servants of defendant wrongfully, carelessly, and negligently backed and run her locomotive and cars against the car so standing on the track, and put the same in motion, and carelessly and negligently ran her cars over said child, by means of which he was so injured that he died; wherefore, etc.\\nThe defendant demurred to the complaint, for the reason that the same did not state facts sufficient to constitute a cause of action, and because the court had no jurisdiction of the parties and subject-matter. The demurrer was overruled by the court, and the defendant reserved the question.\\nThe company then answered in two paragraphs; first, the general denial; and second, that the alleged injury was caused by the negligence and want of care of the plaintiff, because the defendant was operating its cars with due and ordinary care and skill, but the plaintiff negligently permitted his child, under the age of five years, to go and remain upon said railroad track, though he knew that trains were passing over the track every hour of the day; and being so on the track, it was run over and injured, from which injuries it died; and that its servants did not do said injury wilfully, wantonly, or purposely, but, on the contrary, with ordinary care and skill to avoid the same.\\nThe second paragraph of the answer was, on motion o'f the plaintiff, stricken out, on the ground that it amounted only to a denial of matter already controverted by the gen eral denial. The defendant, by bill of exceptions, reserved the question. . \\u2022\\nAfter a trial by jury, which ended in a verdict for the plaintiff the defendant moved the court to grant a new trial, assigning as reasons that the court had erred in admitting objectionable evidence; in its own instructions to the jury; in refusing to give certain instructions asked by the defendant; because the verdict was contrary to law, and not sustained by sufficient evidence.\\nThis motion was overruled, the defendant excepted, and final judgment was rendered for the plaintiff for the amount mentioned in the verdict.\\nThe first alleged error is the overruling of the defendant's demurrer to the complaint. No objection to it is pointed out in the brief of counsel for the appellant, and we can see none.\\nIt was proper to strike out the second paragraph of the answer. It put nothing in issue not already put in issue by the general denial. Coquillard's Adm'rs v. French, 19 Ind. 274.\\nThe objectionable evidence allowed by the court to go to the jury was not pointed out particularly in the reasons fora new trial. \\\" The court erred in admitting evidence to go to the jury over the objection of the defendant,\\\" is the language of the motion. This is too general.\\nIt is urged that the evidence was not sufficient to justify the verdict of the jury.\\nBut we are here met by an objection made by counsel for the appellee, that the bill of exceptions does not contain all the evidence, and that, therefore, we cannot consider this question. The jury were sent to and examined the place where the cars ran over the child, arid according to the rule established in The Evansville, etc., R. R. Co. v. Cochran, 10 Ind. 560, we could not, in such a case, regard the evidence as all in the record, for the reason that we could not know what impressions, as to the facts, were made on the minds of the jury by the examination of the place, etc., in question. It is insisted, however, by counsel for the appellant that that case is not founded in reason, or supported by authority, and we are asked to overrule the same. It is urged that to follow that case is to say that in no case where the jury has had a view of the place in which any material fact occurred, as contemplated by the statute, 2 G. & H. 427, sec. 164, of the criminal code, or page 202, sec. 328, of the civil code, can the evidence be got into the record, as it would be impossible to put into the bill of exceptions the impressions made upon the minds of the jury by such view; and that in this way all benefit of appeal to this court, so far as any question is concerned which depends upon all the evidence being in the record, would be wholly cut off. It is further contended that whether the jury shall have a view of the place, etc., is a matter entirely in the discretion of the court, and that the court may thus, in its discretion, deprive a party of the right to have questions depending on the evidence reviewed in this court, even in cases of the greatest moment. It is urged that under the rule in that case a party might be convicted and sentenced to be hanged on wholly insufficient evidence, yet if the prosecutor has got an order for the jury to view the place, and they have done so, it would be impossible to get the judgment reversed, no matter how insufficient the evidence might have been.\\nThese reasons have so much force in them that we feel compelled to overrule the case of The Evansville, etc., Railroad Company v. Cochran, and any other cases which have followed it, and to hold that the bill of exceptions may contain all the evidence, notwithstanding the jury may have viewed the property which is the subject of the litigation, or the place in which any material fact occurred, in accordance with the sections of the codes above cited. It is suggested by counsel for the appellee that the jurors, after they have examined the property or the place, may be examined and may state the impressions made on their minds, and that their statements on such examination may be put in the bill of exceptions. We are not inclined to adopt this view. We do not think it practicable. In Close v. Samm, 27 Iowa, 503, this question was under consideration. The district court had instructed the jury that they should consider all the evidence in the case and all the facts and circumstances disclosed on the trial, including their personal examination, etc. The question was presented to the Supreme Court whether this instruction was correct or not, and, under a statute similar to our section found in the civil code, the court said: \\\"The question then arises as to the purpose and intent of this statute. It seems to us that it was to enable the jury, by the view of the premises or place, to better understand and comprehend the testimony of the witnesses respecting the same, and thereby the more intelligently to apply the testimony to the issues on trial before them, and not to make them silent witnesses in the case, burdened with testimony unknown to both parties, and in respect to which no opportunity for cross examination or correction of error, if any, could be afforded either party. If they are thus permitted to include their personal examination, how could a court ever properly set aside their verdict as being against the evidence, or even refuse to set it aside without knowing the facts ascertained by such personal examination by the jury? It is a general rule, certainly, if not universal, that the jury must base their verdict upon the evidence delivered to them in open court, and they may not take into consideration facts known to them personally, but outside of the evidence produced before them in court. If a party would avail himself of the facts known to a juror, he must have him sworn and examined as other witnesses.\\\"\\nThe bill of exceptions, therefore, stating that it contains all the evidence, we must so regard it, notwithstanding it appears that the jury were sent to and viewed the place where the facts occurred.\\nWithout adverting to the evidence of each witness in particular, the evidence developed about the following state of facts: That defendant's road has been constructed and used daily on Ohio street, in said city, for several years; that Ohio street fronts on the river bank; is a long, straight street; that from the place where the accident occurred to the depot, is half a mile; that defendant's employees at place where the accident occurred could see one-half mile each way along the track; that plaintiff had lived at same place less than a year, on north side of Ohio street, about thirty-six feet from his door to center of the track; there are no houses on south side of Ohio street, but river bank, which at place where accident occurred is a wharf (graded for a wharf), and of course inclines off to the water; that at the time, plaintiff was at work on wharf-boat at the river, which was between Mulberry and West streets; Mulberry and West streets are two streets running from the river north, whilst Ohio street runs east and west along the river bank; Mulberry street is one square east of West street; the child of plaintiff had been in the habit of going to meet his father as he came to his meals, and crossing the railroad, and sometimes was sent to call his father to his meals; in doing so, he would necessarily cross the track of the road in front of his father's house; he had also been in the habit of waiting on or about a pile of plank for his father, and playing thereon; the plank-pile was on the south side of the railroad, about three feet south of the track, not high, probably two or three feet high; on the day of the accident the child was about the plank-pile, alone, as appears; his father was asleep on the wharf-boat; his mother in her house, which was not far west of Mulberry street ;v one or two cars (empty box cars) had been left on the track the evening or day before, nearly or quite opposite plaintiff's house; these ears had been loaded with corn, and were left there to be unloaded; the train of four or five cars was backing slowly up the track at about three miles per hour, to couple on to the cars standing on the track; the bell was not ringing, but the whistle had' been blown at the woollen factory, about two squares below the place of the accident; the train did not make much noise, only such as is usual in a train moving at that rate. It is proved by the fireman and engineer, that in backing up, the one was looking out at the north and the other at the south side of the'engine, looking east, the way the train was backing, to see that everything was clear; it is proved by the brakeman, Terrell, and by others, that shortly before the train came up to the standing cars, he got off the moving train on the north side and walked up on the north side, and rather in front, to couple the cars; that before the moving train came up, he stooped down and looked under the standing cars to see that there were no hogs under them; that he could see through under the train to the east end, and did not see the child, though if it had been standing near the track on the south side, and opposite the south-east wheels, he could not have seen it; that he coupled the cars, and then stepped from between and motioned the engineer to go on (backing up); that then the child's mother ran out of the house and screamed; he motioned the engineer to stop quick; the engine was reversed; the cars moved each way about a length or half length of one car after they were coupled; he ran round the east end of the car and picked up the child, and carried it into the house; both legs were badly crushed, and it was otherwise inj'ured, and died two days afterward; whilst the train was backing up, the conductor and another brakeman stood on top of the train, looking east, and could have seen the child, if on the' track, unless close behind the box cars on the track; just as the train came up to the standing cars, a brakeman jumped over on to the standing cars. Sometimes they ring the bell, and sometimes not, along there.\\nWe are of the opinion that the evidence does not make out the case as alleged in the complaint. It is stated in the complaint that the child was lawfully upon the track of the road, without any fault or negligence of the plaintiff. This allegation is untrue, according to the evidence. To allow a child of such tender years to be so exposed to danger is negligence; and such negligence as will prevent a recovery by the parent for an injury to it through the negligence of the company. The Lafayette, etc., Railroad Company v. Huff man, 28 Ind. 287; The Pittsburgh, etc., Railway Company v. Vining's Adm'r, 27 Ind. 513.\\nC. E. Walker, T. A. Hendricks, O. B. Hord, and A. W. Hendricks, for appellant.\\nJ. L. Wilson and E. R. Wilson, for appellee.\\nIt is further stated in the complaint, that the child was in full sight of the servants of the company operating the locomotive, etc. This allegation is not shown by the evidence to be true. It is also stated that the servants of the defendant knew that the child was standing near and behind the cars which had been left on the track. This was not proved, but the contrary, we think. It is stated that the servants of the company were within speaking distance of the child; that they could easily have informed him of the danger, or lifted him out of the way had they so desired. It appears that they did not know that the child was near, and therefore could not, of course, have spoken to him or lifted him out of the way.\\nIt being conceded, as it must be, according to the authorities, that the negligence of the parents contributed to its injury and death, by improperly allowing it to be upon the railroad track, it is well settled that the plaintiff cannot recover for the negligence of the company.\\nHad it been true, as seems to be alleged in the complaint, that the child was injured or killed purposely or wilfully, there might have been a recovery, notwithstanding the child was exposed to the danger by its own negligence or that of its parents. Such a case is not made out by the evidence. There is little, if any, evidence of negligence on the part of the servants of the defendant, and no evidence of purpose or wilfulness on their part. In our opinion, the court should have granted a new trial.\\nThe judgment is reversed, with costs, and the cause remanded, with instructions to grant a new trial.\"}"

ind/1398988.json

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+"{\"id\": \"1398988\", \"name\": \"Pierce et al. v. The \\u00c6tna Life Insurance Company et al.\", \"name_abbreviation\": \"Pierce v. \\u00c6tna Life Insurance\", \"decision_date\": \"1892-04-27\", \"docket_number\": \"No. 15,561\", \"first_page\": \"284\", \"last_page\": \"285\", \"citations\": \"131 Ind. 284\", \"volume\": \"131\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T21:00:51.848899+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Pierce et al. v. The \\u00c6tna Life Insurance Company et al.\", \"head_matter\": \"No. 15,561.\\nPierce et al. v. The \\u00c6tna Life Insurance Company et al.\\nDbainage \\u2014 Act of March 9th, 1875. \\u2014 Lien of Assessment Under. \\u2014 Priority of Mortgage Lien. \\u2014 Under the act of March 9th, 1875 (Acts of 1875, p. 97), an assessment for the construction of a ditch is not a lien upon the land benefited superior to a prior mortgage thereon. The act, indeed, contains no provision making the assessment a lien upon the land benefited.\\nFrom the White Circuit Court.\\nT. F. Palmer, for appellants.\\nG. W. Bushnell, E. B. Sellers and W. E. Uhl, for appellees.\", \"word_count\": \"516\", \"char_count\": \"2921\", \"text\": \"McBride, J.\\nA question meets us at the threshold of this case which renders unnecessary the consideration of several questions argued by counsel.\\nThis was a suit by the appellee for strict foreclosure of a mortgage on land, which was executed September 12th, 1877. The appellants claim a prior lien on the land by virtue of an assessment for the construction of a ditch. The petition for the location of the ditch was filed July 23d, 1878. The order establishing it was made by the board of county commissioners September 5th, 1878. The statute under which the ditch was constructed was that of March 9th, 1875; Acts of 1875, p. 97. That statute contained no provision declaring assessments liens upon the lands benefited. It provided that the assessments made should be placed upon the tax duplicate and collected as \\\" other taxes,\\\" etc. It did not, however, attempt to declare that they were taxes, and it is manifest they were not. Nor did it declare that they should have the lien of taxes. They were simply collected by the same processes and agencies as were used in the collection of taxes. As was said in State, ex rel., v. \\u00c6tna Life Ins. Co., 117 Ind. 251, we do not doubt the power of the Legislature to provide that such assessments shall be a lien on lands benefited, and, also, to provide that the lien shall have priority over preexisting mortgages. Indeed, there would see.m to be much reason for providing that a mortgagee, whose security is enhanced in value by the construction of a public drain, should have the lien of his mortgage subordinated to the lien of a fair assessment for the cost of its construction. Necessarily, however, before the rights of a lien-holder could be thus affected he would be entitled to his \\\" day in court,\\\" and the statute in question contains no provision for notice to lien-holders, or to.any persons except owners.\\nFiled April 27, 1892.\\nVe can only declare the law as it is, not as we may think it ought to be. If it is defective, so that the full measure of justice can not be meted out, the remedy must come from the law-making power. In addition to the case above cited, see on the question as to the relative priority of the lien of ditch assessments and mortgages, Cook v. State, etc., 101 Ind. 446.\\nThe rights of the appellants were clearly junior and subordinate to those of the appellee.\\nJudgment affirmed.\"}"

ind/1408061.json

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+"{\"id\": \"1408061\", \"name\": \"The Lake Erie and Western Railroad Company v. Young et al.\", \"name_abbreviation\": \"Lake Erie & Western Railroad v. Young\", \"decision_date\": \"1893-11-10\", \"docket_number\": \"No. 16,369\", \"first_page\": \"426\", \"last_page\": \"434\", \"citations\": \"135 Ind. 426\", \"volume\": \"135\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T17:49:15.292998+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Lake Erie and Western Railroad Company v. Young et al.\", \"head_matter\": \"No. 16,369.\\nThe Lake Erie and Western Railroad Company v. Young et al.\\nInjunction. \\u2014 Sufficiency of Complaint. \\u2014 Watercourse.\\u2014Culvert.\\u2014JBm- , bankments. \\u2014 Bailroad.\\u2014In an action by way of injunction to restrain a railroad company from constructing a stone arch culvert over a certain watercourse along its right of way and from constructing banks of earth on each side of such culvert, leaving no other means for the escape of water flowing in said stream save through said culvert, the complaint is sufficient, which shows that the culvert would be insufficient as a passage way of the water in said stream during or dinary or heavy r\\u00e1infalls, causing the water to be dammed up and to overflow lands, destroying crops and fences, and that such damage will be continuous from year to year, and that if such culvert and embankment should be so constructed, plaintiffs would be compelled, in order to recover from defendant compensation for the damage thus sustained, to bring numerous suits against the company.\\nSame. \\u2014 Restraining Order. \\u2014 Modification of. \\u2014 A temporary restraining order may be so modified as to protect the rights of all the parties affected thereby.\\nFrom the Madison Circuit Court.\\nJ. W. Lovett, S. M. Keltner, F. S'. Foote and W. E. Hackedorn, for appellant.\\nE. E. Hendee, for appellees.\", \"word_count\": \"2538\", \"char_count\": \"14458\", \"text\": \"Howard, J\\nThe appellant's railroad extends along its right of way through the lands of appellees, crossing Lilly creek, a natural stream of water, on trestle work about thirty feet high and three hundred and twenty feet long.\\nAppellant being about to fill up this trestle work with earth, except a space to be occupied by a stone arch or culvert w-ith an opening twelve feet wide and ten feet and five inches high in the arch, appellees brought suit to enjoin the work, claiming that the arch would be insufficient for the passage of the waters of Lilly creek, and that great, continuous, and irreparable injury would be done appellees by so impeding the flow of the waters.\\nA temporary restraining order was granted appellees on their petition.\\nA motion to dissolve this order was overruled, as was also a demurrer to the complaint.\\nThe appellant answered by way of a plea in confession and avoidance, and also by a general denial.\\nA demurrer to the special paragraph of answer having been overruled, the appellees replied by a general denial.\\nA motion by appellant objecting to the trial of the cause by a jury, or to the submission to a jury of any question of fact involved in the issues, was overruled by the court.\\nA jury having been impanelled, the court, of its own motion, submitted certain interrogatories to the jury to find the facts for the information of the court. The jury returned their answers to the interrogatories as follows:\\u2014\\n\\\"1. Will the culvert constructed by the defendant be sufficient to pass the water during the rainy seasons of the year, in times of ordinarily heavy rainfalls? Ans. No. Francis Watkins, Foreman.\\n\\\"2. If you say no to question No. 1, statewhat injury, if any, will be done to the lands of the plaintiffs; state fully the character and extent of such injury. Ans. That by the further backing up of the water on said lands, the plaintiffs' said lands will be damaged, their fences will be destroyed, and the other improvements upon said real estate will be injured by the water thereon, and their growing crops will be drowned out. Plaintiffs will receive great and irreparable injury, of such as we can not estimate in dollars and cents, and that the damages thereon will be continuous from year to year.\\n\\\"Francis Watkins, Foreman.\\\"\\nPending the finding and decision of the court, the restraining order was so modified as to permit the filling up of the trestle work with earth, except that, in addition to the culvert, another opening, not less than fifteen feet in width on the bottom, at the natural level, should be left free of earth.\\nThe court, at the request of the appellant, made its finding of facts and conclusions of law thereon, finding the facts in favor of the appellees, and found, as conclusions of law upon the facts found, that the appellees \\\"are entitled to have the injunction and restraining order hereinbefore granted and modified, made perpetual.\\\"\\nA decree was entered in accordance with the finding.\\nThe errors assigned and discussed by counsel have reference to the sufficiency of the complaint, and to the finding of facts, and conclusions of law.\\nThe appellant contends that the complaint shows that a right of action had not accrued, and, therefore, that a demurrer to it should have, been sustained. We think that counsel have misapprehended the nature of the complaint. This is not an action for damages simply, but a suit for injunction to prevent threatened damages.\\nThe case of Sherlock v. Louisville, etc., R. W. Co., 115 Ind. 22, upon which appellant relies, was an action seeking various forms of relief for injury to land, amongst them being damages for overflow of the land caused by a defective construction of the defendant's railroad bridge. It was said in that case: \\\"That the right of the plaintiff was to have his land free from the overflow, and to recover the damages resulting therefrom; and that the wrong of the railway company was the negligent construction and maintenance of the bridge.\\\" And the court held that it was not shown in the answer that the railroad company had a prescriptive right to flood the plaintiff's land, or that he had any knowledge that the bridge would flood the land, or acquiesced in such flooding. It did not therefore appear that the action was not brought in good time, and the answer of the company was held bad. In so far as that case has any bearing upon the case before us, we think it is against the contention of the appellant.\\nThe material averments of the complaint, so far as they need be set out here, are: That the defendant is the owner of and operating a railroad which runs over and through plaintiff's lands, where it crosses a natural stream of water known as Lilly creek, along which stream there flows a large amount of water during the seasons of the year when there is the most rainfall; that when said railroad was constructed in 1875, it was built across said stream on said land on trestle work, about thirty feet high, the trestles being fifteen feet apart, and extending out on each side of said stream until the entire bridge of trestle work was three hundred and twenty feet long, thus leaving full and free opening for all the water coming down said stream; that the amount of water coming down said stream in times of heavy rainfall, and during the wet seasons of the year, is such that the high water mark on said trestle work bridge is ten feet above ground, and extends to a width of the entire length of said trestle work, and ranging in depth from five to ten feet, and that it is not, and has not, been unusual for the water during the rainy season to run that high; that the defendant, at the commencement of this suit, had adopted plans for, and commenced to construct, a stone arch culvert for said stream, under said railroad, with an opening twelve feet wide and ten feet five inches high in the arch, and to fill all the space then and now occupied by said trestle work with a bank of earth, so that no opening would remain for the water coming down the stream save and except that of said stone arch culvert; that since the commencement of this suit said culvert has been constructed, as aforesaid; that said defendant is now proceeding to, and is about to, fill up the intervening space under and along said railroad track where the trestle work now is, with an earth embankment, entirely closing up the passage way for the water, save and except said stone arch culvert; that during the rainy seasons of the year, in the fall, winter, and spring, and during the times of ordinary rain falls, especially in times of heavy rain falls, the water flows, and. will flow, down said stream in such amounts that said stone arch culvert will be wholly insufficient to carry away said water under said railroad; and by reason of the construction of said culvert and the filling in of the embankment, the water coming down the stream will be impeded in its flow, dammed up and backed upon the lands of the plaintiffs; th\\u00e1t said lands are all farming lands, subject to cultivation in annual crops, and to pasture, and as such are used by plaintiffs, and that there are situated on said lands fences and other improvements necessary in the use and occupancy of said real estate; that by the backing up of the water as aforesaid on baid lands, the plaintiffs' said lands will be damaged, their fences will be destroyed, and other improvements upon said real estate will be injured by the water thereon, and their growing and annual crops will be drowned out, injured and prevented from growing, and their grass lands thereon will be wholly unfit for use; and by reason of the facts aforesaid the plaintiffs will receive great and irreparable injury, of such character as can not be estimated and measured in money damages, and that the damage will be continuous from year to year, and that plaintiffs would be compelled, in order to recover from defendant compensation for the damage thus sustained, to bring numerous suits against defendant.\\nWe think this complaint was sufficient for the re-) straining order prayed for to prevent the threatened injury.\\nIn High on Injunction, section 12, it is laid down as a general rule that whenever the rights of a party aggrieved can not be protected or enforced in the ordinary course of proceedings at law, except by numerous and expensive suits, a court of equity may properly interpose and afford relief by injunction.\\nIn section 23, of the same work, the author says that the appropriate function-of the writ of injunction is to afford preventive relief only, and not to correct injuries which, have already been committed. It is for the prevention of a future injury actually threatened, and to prevent the perpetration of a legal wrong for which no adequate remedy can be had in damages.\\nIn the case of the Mohawk Bridge Co. v. Utica, etc., Co., 6 Paige, 554,Chancellor Walworth said: \\\"If the magnitude of the injury to be dreaded is great, and the risk so imminent that no prudent person would think of incurring it, the court will not refuse its aid for the protection of the \\\"Complainant's rights, by injunction,'on the ground that there is a bare possibility that the anticipated injury from the noxious erection maj not happen.\\\"\\nThe erection of a mill dam, as .said in High on Injunction, section 839, in such a manner that the inundation caused by the back flowage of the water lessens the value of complainant's land, destroys his timber and imperils the health of the neighborhood, will be enjoined.\\nIn Stone v. Roscommon Lumber Co., 59 Mich. 24, it was held, that injunction would lie to, prevent the flooding of the plaintiff's land, if it appeared that the threatened injury were of a character to render the property comparatively worthless for the purposes to which it was best adapted, and for which it was intended by the owner, without regard to the amount of the immediate damage sustained; that the fact that annual freshets in some degree impeded the growth of hay on the land would not relieve the defendant from liability for erecting a dam in such a manner as to flood such land, thereby destroying its value for the purposes to which it was best adapted; that a person will not be allowed to destroy the property of another by a series of threatened trespasses, and then remit him to his remedy at law to recover damages sustained, but equity will interfere to enjoin the threatened injury at any period of its perpetration, and thus prevent a multiplicity of suits.\\nBemis v. Upham, 13 Pickering (30 Mass.), 169, was a case where an injunction was sought to prevent the keeping up of a mill dam, which set back the water so as to overflow the plaintiff's dam higher up. It was admitted by the defendant in that case that the grievance complained of was a nuisance, but it was objected that there was an adequate and complete remedy at law. The court held that a decree in equity was the only sufficient remedy, inasmuch as such decree could extend to all parties having an interest, and bind them effectually forever; that, instead of requiring an entire prostration of the nuisance, the decree might be modified and adapted to the just rights of the parties. It might order an abatement in part, determine the height to which the dam might he kept, the terms on which it might be kept up, the mode of using the water, and other incidents.\\nSo, in the case before us, the restraining order forbidding the filling up of the trestlework with earth might be, and, in fact, was, so modified that the appellant might be allowed to fill up the whole space except that occupied by the culvert, and an additional space of fifteen feet, and thus adapt the decree to the just rights of the parties, giving to the appellees all the relief necessary to allow the floods to escape readily, and so protect their land from the overflow, and at the same time en-. able the appellant, with the least inconvenience, to put its road in good condition.\\nWe think the relief by injunction was the only adequate and complete remedy, and that the complaint is good for that purpose. McGoldrick v. Slevin, 43 Ind. 522; Clark v. Jeffersonville, etc., R. R. Co., 44 Ind. 248; Cox v. Louisville, etc., R. R. Co., 48 Ind. 178; Owen v. Phillips, 73 Ind. 284; Patoka Township v. Hopkins, 131 Ind. 142; Wilmarth v. Woodcock, 58 Mich. 482; G. H., etc., R. W. Co. v. Tait, 63 Tes. 223; Moore v. Chicago, etc., R. W. Co., 75 Iowa, 263; 10 Am. and Eng. Encyc. of Law, 835, 843, 977.\\nFiled Nov. 10, 1893.\\nUnder the assignment of error, that the court erred in its finding of facts and conclusions of law, counsel argue only that the evidence does not sustain the finding. The record shows that there was ample evidence in support of the allegations of the complaint and the findings of the court. Under numerous decisions, this is sufficient, even though there were certain computations' offered in evidence to show that the culvert might carry the water. For such conflict of testimony, if it be such, we can not disturb the findings. The court seems to have arrived at a just and equitable adjustment of the rights of both parties.\\nThe judgment is affirmed.\"}"

ind/1411800.json

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+"{\"id\": \"1411800\", \"name\": \"The Western Union Telegraph Company v. Hopkins\", \"name_abbreviation\": \"Western Union Telegraph Co. v. Hopkins\", \"decision_date\": \"1874-11\", \"docket_number\": \"\", \"first_page\": \"223\", \"last_page\": \"227\", \"citations\": \"49 Ind. 223\", \"volume\": \"49\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:28:36.222634+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Western Union Telegraph Company v. Hopkins.\", \"head_matter\": \"The Western Union Telegraph Company v. Hopkins.\\ngiiEAPrijra.\\u2014Demurrer to Complaint does not go to Damages.\\u2014Damages.\\u2014In an. action for the breach of a contract by \\u25a0 defendant, whereby, it is alleged, \\\" plaintiff suffered damages in the loss of advantage he otherwise would have \\u2022 realized from other contracts made by him, a demurrer to the complaint, - wherein the contract between plaintiff and defendant'and the breach thereof by defendant are averred does not raise the question of the liability of defend- \\u25a0 ant for consequential damages, by reason of the loss of such advantage suffered by plaintiff. The contract with defendant and its breach by him being alleged, the amount of damages is not to be decided by demurrer.\\n\\u25a0'Same.\\u2014Copy' of Written Instrument.\\u2014Demurrer.\\u2014Statute of Frauds.\\u2014Under - the code,- in an action upon a contract which is not alleged to be in writ- . ing, and the original or a copy of which is not filed with the complaint, the presumption is, that the contract is not in writing; andif the contract is such as is, by the statute, required to be in writing, the objection may be taken by demurrer.\\nSame.\\u2014Contract.\\u2014Action On.\\u2014Telegraph Despatch.\\u2014Eoidmee.\\u2014In an action . against a telegraph company for failure to transmit a despatch, by reason \\u25a0of which the plaintiff lost the advantage of certain contracts made by him. with other parties, the action is not founded on such contracts, but on; the contract of the company to send and deliver the despatch; therefore said contracts with other parties may be proved, under the allegations of' the complaint, to have been in writing.\\nPbactice.\\u2014Excessive Damages.\\u2014Motion for New Trial.\\u2014That the damages assessed by the court upon the trial were excessive, cannot be presented for the consideration of the Supreme Court, except by making it a reason for a new trial in the court below.\\nUviDEirCE.\\u2014Telegraph Despatch.\\u2014Secondary Evidence.\\u2014In an action against a telegraph company for damages for failure to transmit a despatch, the original despatch delivered to the operator must be given in evidence, or if not its absence must be properly accounted for before/secondary evidence thereof can be admitted.\\nFrom the Laporte Circuit Court.\\nW. JET. Calkins, for appellant.\\nL. A. Cole and J. A. Thornton, for appellee.\", \"word_count\": \"1615\", \"char_count\": \"9299\", \"text\": \"Downey, J.\\nHopkins, the appellee, brought his \\u2022 action-against .the telegraph company, to recover damages alleged to have been sustained by him, by reason of the negligence of the appellant in failing to transmit and deliver a message entrusted to it by him for that purpose, at its office in Chicago, in the State of Illinois. The message was to have been transmitted from Chicago to Michigan City, in this State, and was as follows :\\n\\\" To II. M. Hopkins: Tell Kellogg I take the brick. Home to-morrow. (Signed) J. T. Hopkins.\\\"\\nThe complaint was in two paragraphs, to each of which a demurrer was overruled, whereupon the appellant filed an answer of general denial.\\nThere was a trial by the court, which resulted in a finding for the appellee, his damages being assessed at two hundred and fourteen dollars and twenty cents, and a judgment in his favor for that amount, the motion of the appellant for a new trial having been overruled. The proper exceptions were reserved at each stage of the case, and the evidence is in the record by a bill of exceptions.\\nThere are but two errors assigned, viz.:\\n1. Overruling the demurrers to the several paragraphs of the complaint.\\n2. Overruling the motion- of the appellant for a new trial.\\nWe will consider these in their order; and, first, were the demurrers correctly overruled ?\\nThe case made by the first paragraph of the complaint is this: Hopkins, the appellee, had entered into a contract with one Kellogg, at Michigan City, Indiana, for the purchase, by the former from the latter, of the brick in a certain kiln, estimated at one hundred and fifty thousand, more or less,- at an agreed price of ten dollars per thousand, Kellogg agreeing to hold the brick for Hopkins till the close of a certain day, during which time it was to be optional with Hopkins whether he would take them or not j that Hopkins on that day went to Chicago and made a contract for the sale of the same brick to certain parties there at an advanced price; that thereupon, at about three o'clock in the afternoon, he went to the office of the appellant in Chicago, and delivered to its operator there the message hereinbefore referred to for transmission to his brother and agent at Michigan City, and paid the charges for its transmission; that appellant, by reason of the negligence and carelessness of its servants, failed to transmit and deliver said message until noon of the next day; that in consequence of such failure Kellogg sold the brick to other parties, though he could and would have delivered them to the appellee, had said message been delivered at the proper time; that, by reason of said negligence and failure, the appellee was deprived of the advantage he would otherwise have realized from his contracts, and was thereby damaged five hundred dollars.\\nThe second paragraph differs from the first only in treating the arrangement between the appellee and Kellogg as a proposition by the latter to sell the brick to the former, ancl that the message alluded to was the acceptance of that proposition, attempted to be communicated to Kellogg through the instrumentality of the appellant.\\nCounsel for the appellant says : \\\" Our first objection to each count of the complaint is, that it does not allege that the appellee was compelled to or became liable to pay' any damages, or was otherwise injured in the alleged failure of the appellant to deliver the message, except in the loss of speculative gains and profits, which, under certain contingencies, he might have made. This the law does not allow.\\\"\\nWe do not deem it necessary to consider this question in deciding the demurrer.\\nThe complaint alleges the making of a contract by the defendant and the violation of it. This shows that the plaintiff has a cause of action for some amount in damages, and what that amount shall be is not a question tobe decided upon a demurrer to the complaint.\\nThe next objection urged is, \\\"that the supposed contract alleged between the appellee and Kellogg is within the statute of frauds, and could not have been enforced by either against the other.\\n\\\" No writing is filed with the complaint, nor is any writing referred to therein; this court will, therefore, presume that the contract was verbal.\\n\\\" Neither is it alleged that anything was paid as earnest to bind the bargain, or that the property, or any part of it, was delivered by Kellogg to the appellee; and the amount or value of the subject of the contract largely exceeds fifty dollars, to wit, one hundred and sixty-three thousand brick at ten dollars per thousand.\\\"\\nWe think this position untenable. At common law, where a, contract required by the statute of frauds to be in writing was declared upon, it was unnecessary to allege in the declaration that it was in writing. But it has been held, under the code, where a contract in writing is declared on, the original or a copy' of it must be filed with the complaint; and if it is not alleged to be in writing, and the original or a copy is not filed, the presumption, arises that the contract is not in writing; and if the contract is such as is required by the statute to be in writing, the objection may be taken by demurrer. But if the contract is such as might be valid without being in writing, as a con tract for the sale of goods, where there is part payment, etc., the objection cannot be raised by demurrer. Harper v. Miller, 27 Ind. 277.\\nThe action in the case under consideration is not on the contract for the sale of the brick, but is on the contract to send, and deliver the despatch. The contract with reference to the sale of the brick may be proved, under the allegations of the complaint, to have been in writing, if that is necessary, although that fact is not alleged. Hence, this objection to the complaint must be disallowed.\\nThe following are the grounds for a new trial urged in the 'circuit court:\\n1. The finding of the court is contrary to the evidence.\\n2. It is contrary to law.\\n3. The court erred in admitting the paper to be read in evidence, purporting to be a message to one H. M. Hopkins, it being the only one introduced in evidence, over the objection of the defendant, etc.\\nCounsel for appellant discusses, at considerable length, the question as to the amount of damages awarded by the court. As the finding of the court was not questioned on this ground -by the motion for a new trial, we cannot consider .the question.\\nThe last reason for a new trial should have prevailed. The original telegram or despatch should have been used as evidence, or its absence properly accounted for, before secondary evidence was allowed. Durkee v. The Vermont Central R. R. Co., 29 Vt. 127; Williams v. Brickell, 37 Miss. 682; Matteson v. Noyes, 25 Ill. 591.\\nIn the first named case, the question is discussed as to what is the original. In the case under consideration, however, there is no doubt but that the despatch delivered to the operator was the original.\\nThe judgment is reversed, with costs, and the cause remanded for a new trial.\"}"

ind/1414684.json

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+"{\"id\": \"1414684\", \"name\": \"Turner et al. v. Horton\", \"name_abbreviation\": \"Turner v. Horton\", \"decision_date\": \"1874-11\", \"docket_number\": \"\", \"first_page\": \"254\", \"last_page\": \"254\", \"citations\": \"48 Ind. 254\", \"volume\": \"48\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T19:21:35.573271+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Turner et al. v. Horton.\", \"head_matter\": \"Turner et al. v. Horton.\\nFrom the Jackson Circuit Court.\\nP. M. Patri\\u00f3le, T-V. W. Herod, and F. Winder, for appellants.\\nF. Q. Devore, for appellee.\", \"word_count\": \"47\", \"char_count\": \"262\", \"text\": \"Downey, J.\\nThere is no assignment of errors in this case. The appeal is dismissed, at the costs of the appellants.\"}"

ind/1430551.json

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+"{\"id\": \"1430551\", \"name\": \"Doe on the Demise of Rush v. Kinney and Another\", \"name_abbreviation\": \"Doe v. Kinney\", \"decision_date\": \"1851-11-25\", \"docket_number\": \"\", \"first_page\": \"50\", \"last_page\": \"52\", \"citations\": \"3 Ind. 50\", \"volume\": \"3\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:19:38.004933+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Doe on the Demise of Rush v. Kinney and Another.\", \"head_matter\": \"Doe on the Demise of Rush v. Kinney and Another.\\nA testator disposed of liis estate by will, as follows: \\u201cI, J. R., do make and publish this my last will and testament in manner and form following, that is to say, after all my just debts are paid, I give and bequeath to my wife, Ann, a certain grey mare, &a., as also all my real and personal estate during her natural life, provided she should not marry, and, at her death, to be equally divided between my brothers and sisters. But, in case she should marry, then the one-half of my estate to be divided equally between my brothers and sisters, or their heirs; and the other half I bequeath to my said wife,\\u201d &o. Held, that upon her subsequent marriage, she took an estate in fee in the testator\\u2019s real property.\\nWhere a will is free from ambiguity, and the testator\\u2019s intention is so manifested that, by giving the language employed by him its ordinary and legal signification, no doubt remains of the quantity or duration of the estate devised, a Court will not inquire into the motives which might have influenced the testator, in order to prove or infer that he meant to devise a different estate.\\nTuesday, November 25.\\nERROR to the Fountain Circuit Court.\", \"word_count\": \"1002\", \"char_count\": \"5624\", \"text\": \"Smith, J.\\nEjectment against the defendants in error for a certain tract of land in Fountain county. Judgment for the defendants.\\nBoth parties claimed under the will of Josiah Rush, who died in 1835, seized of the premises in controversy. The will is as follows:\\n\\\" I, Josiah Rush,\\\" \\\" do make and publish this my last will and testament, in manner and form following, that is to say, after all my just debts are paid, I give and bequeath unto my beloved wife, Ann Rush, a certain grey mare that I have lately got of Joshua Walker, as also all my real and personal estate, during her natural life, provided she should not marry, and at her death to be equally divided between my brothers and sisters. But, in case she should marry, then, and in that case, the one-half of my estate to be divided equally between my brothers and sisters, (or their heirs,) and the other half I bequeath to my said beloved wife, Ann Rush, whom I hereby appoint my executrix, and Jacob Kinney my executor.\\\"\\nAnn Rush, the widow, intermarried with one Alexander, and, with her said husband, made a conveyance of one undivided half of said premises. She and her said husband are both dead.\\nThe defendants claim under the conveyance of Alexander and wife, and the lessor of the plaintiff is one of the brothers of the testator.\\nThe plaintiff requested an instruction to be given that Ann Rush, the widow of the testator, took an estate for life only in one-half of the real estate devised, in the event of her marriage. This instruction was refused, and the Court instructed the jury that she took a fee-simple estate under the will.\\nThe only question presented is, whether the instruction given was right. We think it was. The word \\\" estate,\\\" in the last sentence of this will, is used to describe the property which the testator meant to devise, and, in such cases, it is well settled that the use of this word in a will, unaccompanied by any restriction or limitation, suffices to convey all the estate the testator had. Doe v. Harter, 7 Blackf. 488.\\nThe plaintiff contends that it is inconsistent with the motives which influence the conduct of men, to suppose the testator meant to give his widow a more valuable estate if she married again than if she remained single, and, therefore, it should be inferred from the whole will, that it was his intention to give her a life estate only in one-half of his real property, in case of her marriage. But we cannot, in this case, resort, with any propriety, to such an argument as this, for the purpose of ascertaining the intentions of the testator. It is true, when there is any inconsistency in the different clauses of a will, if the intention of the testator can be inferred from the whole will taken together, that intention should govern; and when there are any latent ambiguities, by reason of which the intention is not manifested or expressed with certainty, the uncertainty may be removed by evidence of extrinsic facts, or, in some cases, perhaps, by a resort to arguments founded on the motives which usually influence human conduct. But when there is no such ambiguity, and, as in this case, the intention of the testator is mani fested, so that by giving the words used their ordinary and legal signification, no doubt remains as to the quantity or duration of the estate devised, it would be contrary to all the established rules and precedents to permit an inquiry as to the motives which might have influenced the testator, for the purpose of proving or inferring that he meant to devise a different estate. Judy v. Williams, May term, 1851.\\nW. H. Mallory, for the plaintiff.\\nD. Brier, for the defendant.\\nIt might, indeed, be a question whether the estate which the widow took, under this will, in the event of her marriage, was, in fact, more valuable than the provision made for her in case she remained single, but that is immaterial.\\nPer Curiam.\\nThe judgment is affirmed with costs.\\n) The word \\\"estate,\\\" in the operative part of a will, passes not only the corpus of the property, but all the interest of the testator in it, unless controlled by the context; but where that word is not used in the operative clause of the devise, but is introduced into another part of the will referring to it, it cannot be construed to extend the meaning of the operative clause, whether prior or subsequent. Doe d. Burton v. White, 1 Exch. R. 526.\\n) 1 Carter's Ind. R. 449.\"}"

ind/1448447.json

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+"{\"id\": \"1448447\", \"name\": \"Rutherford, Administrator, v. Tevis\", \"name_abbreviation\": \"Rutherford v. Tevis\", \"decision_date\": \"1854-12-11\", \"docket_number\": \"\", \"first_page\": \"530\", \"last_page\": \"533\", \"citations\": \"5 Ind. 530\", \"volume\": \"5\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T20:42:47.852115+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Rutherford, Administrator, v. Tevis.\", \"head_matter\": \"Rutherford, Administrator, v. Tevis.\\nAssumpsit by A. against B., administrator of C. The declaration contained four counts. The first alleged that A., in 1841, purchased of O. a tract of land, for 2,000 dollars, for which A. gave his notes, and that thereupon C. executed a bond for a conveyance; that A. took possession, &c., held the land for two years, and made improvements on it worth 1,000 dollars; that in 1844, A. and C. entered into an agreement to rescind the contract of sale, A. stipulating to surrender possession of the premises and cancel the bond, and O. agreeing to give up the notes and pay for the improvements; that accordingly G. obtained possession of the land and bond; but that no payments had been made for the improvements, either by G. or by B. bis administrator. The second count was for goods sold; the third for money paid; and the fourth for work and labor. Nine pleas. The 1st, 2d, 7th and 9th led to issues of fact. The 3d, 4th and 5th were pleas of the statute of limitations. The 6th, which was to the first count, alleged that C. never executed the title-bond mentioned in that count. This plea was verified by oath. The 8th averred that A. did not, within one year after B.\\u2019s appointment as administrator, file in the clerk's office a statement of his claim, nor at any time before the commencement of the suit, notify B. of said claim. Beplication to the 3d, 4th and 5th pleas, that G. died on the 29th of January, 1849, which period was within six years after he made the promises sued on, and that B. was appointed administrator on the 10th of March following; that during one year of the time which intervened between the promises and G.\\u2019s death, he was continuously a non-resident and constantly absent from the state and the jurisdiction of her Courts; that from the time of the promises to his decease, exclusive of the period of non-residence, only three years and eleven months had elapsed; and that just seven months intervened between the 10th of March, 1850, (the date at which said administrator was liable to be sued in the case), and the day on which the suit was actually brought.\\nHeld, that demurrers were correctly sustained to the 6th and 8th pleas.\\nHeld, also, that the replication to the 3d, 4th and 5th pleas was sufficient on general demurrer.\\nA trial without an issue is erroneous.\\nAPPEAL from the Shelby Circuit Court.\\nMonday, December 11.\", \"word_count\": \"1025\", \"char_count\": \"5895\", \"text\": \"Davison, J.\\nTevis sued Rutherford, administrator of Alexander Brown, in assumpsit. The declaration contains four counts. The first alleges that Tevis, in the year 1841, purchased of Brown two hundred acres of land in Shelby county, for 2,000 dollars, for which he gave his notes, and thereupon Brown executed a bond for a conveyance; that Tevis took possession under his purchase, held the land for two years, and made improvements on it worth 1,000 dollars; that in the year 1844, an agreement to rescind the contract of sale was entered into between the parties,, whereby Tevis stipulated that he would surrender up possession of the premises and cancel the bond; and that Brown, on his part, agreed to give up the notes and also pay for the improvements; that in accordance with the agreement, Brown obtained possession of the land and bond; but no payments have been made for the improvements, either by him in his lifetime, or by said administrator since his death. The second count is for goods sold; the third for money paid; and the fourth for work and labor.\\nThere were nine pleas. The first, second, seventh and ninth led to issues of fact. The third, fourth and fifth were pleas of the statute of limitations. The sixth plea, which was to the first count, alleged that Brown never executed the title-bond mentioned in that count. This plea was verified by oath. The eighth averred that Tevis did not, within one year after the appoinment of said administrator, file in the clerk's office a statement of his claim; nor did he at any time before the commencement of this suit notify him of such claim. Demurrers were correctly sustained to the sixth and eighth pleas. To the third, fourth and fifth, Tevis replied, that Brown died on the 29th of January, 1849, which period was within six years after he made the promises sued on, and Rutherford was appointed administrator on the 10th of March following; that during one year of the time which intervened between the promises and Brown's death, he was continuously a non-resident, and constantly absent from the state, and without the jurisdiction of her Courts; that from the time of the promises to his decease, exclusive of the non-residence, only three years and eleven months elapsed; and that just seven months intervened between the 10th of March, 1850, the date at which said administrator was liable to be sued in this case, and the day on which this suit was actually brought. So that excluding the period of non-residence, and the seven months, Tevis did within six years after the promises were made, commence this action, &c. The defendant demurred to the replication. The demurrer was overruled. Thereupon the cause was submitted to the Court for trial. The Court found for the plainti\\u00edf. A new trial was refused, and judgment rendered, &c.\\nIn point of form the replication is quite objectionable, and would have been so held on special demurrer. We think, however, its averments sufficient to exclude the case from the operation of the statute of limitations. R. S. 1843, c. 40, s. 110.\\nT. A. Hendricks, for the appellant.\\nM. M. Ray, for th\\u00e9 appellee.\\nBut there is a fatal error in the record. The cause was tried without a rejoinder to the replication. It alleges facts material to a proper decision of the cause; yet they remain unanswered. This was, in effect, a trial without an issue; and such a trial has been repeatedly adjudged erroneous.\\nPer Curiam.\\u2014 The judgment is reversed with costs. Cause, remanded, &e.\"}"

ind/1448523.json

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+"{\"id\": \"1448523\", \"name\": \"Depew v. The Board of Trustees of the Wabash and Erie Canal\", \"name_abbreviation\": \"Depew v. Board of Trustees\", \"decision_date\": \"1854-05-22\", \"docket_number\": \"\", \"first_page\": \"8\", \"last_page\": \"12\", \"citations\": \"5 Ind. 8\", \"volume\": \"5\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T20:42:47.852115+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Depew v. The Board of Trustees of the Wabash and Erie Canal.\", \"head_matter\": \"Depew v. The Board of Trustees of the Wabash and Erie Canal.\\nThere are two classes of streams within and bordering upon Indiana, which are called navigable streams and public highways: one (which has generally been declared navigable by the legislature, but which the boards of county commissioners, by the B. S. 1852, are empowered to declare so,) is only nayigable for certain kinds of craft, certain distances within the state, and is not visited by vessels coming from and going to navigable waters of other states by continuous voyages; the other consists of those which are navigable in fact for vessels coming out of or returning into the navigable waters of other states by continuous voyages.\\nOver the former class the state has exclusive jurisdiction, and may, for the public good, authorize obstructions at pleasure; and (except so far as private property is taken or injured) no action can be sustained therefor.\\nOver the latter class of streams, so far as they are within her limits, the state, in the absence of legislation by congress, has the same jurisdiction; but congress has the right, under s. 8, art; 1, of the constitution of the United States, to interpose, and divest the state of this jurisdiction.\\nThe constitution of the United States superseded the ordinance of 1787, so far, at least, as to abrogate all restraints upon the powers of the states formed out of the Northwestern Territory which did not exist upon the powers of the original states.\\nThe provision in the ordinance of 1787, that the navigable waters leading into the Mississippi, &c., shall be free, &c., was superseded by the adoption of the constitution of the United States.\\nBut congress has, by subsequent acts, so far recognized and adopted that provision as to give it the force of an existing law.\\nA state has no right, now, seriously to obstruct the navigation of streams which are channels of inter-state trade.\\nRaccoon creek, in Parke county, is not an inter-state navigable stream.\\nERROR to the Parke Circuit Court.\\nMonday May 22.\", \"word_count\": \"1689\", \"char_count\": \"10041\", \"text\": \"Perkins, J.\\nCase to recover damages for the obstruction of a navigable stream.\\nDepew, the plaintiff, alleges that Raccoon creek, in Parke county, Indiana, is, and has been, a navigable stream for boats, &c.; that he had been accustomed to navigate it, and make profits thereby, till, &c., when the trustees of the Wabash and Erie canal obstructed it, &c.\\nThe trustees pleaded that the legislature of the state located the Wabash and Erie canal; that they (the trustees) constructed said canal, by authority of law, upon the location made by the state; and that in doing so, it became necessary to cross said Raccoon creek by an aqueduct, which constitutes the obstruction complained of.\\nDemurrer to this plea overruled, and final judgment for the defendants.\\nThis case leads to the examination of the subject of navigable rivers.\\nThere are two classes of. streams within, and bordering upon, Indiana, which are called navigable streams and public highways. One of these classes is only navigable for certain kinds of craft, certain distances within the state, and is not visited by vessels coming from and going to, by continuous voyages, navigable waters of other states.\\nThis class of streams has been generally declared navigable by the legislature. At present, county commissioners, in the several counties, are vested with the power of declaring streams navigable. R. S. 1852, vol. 1., p. 373. These streams are highways for trade and commerce within the state.\\nThe other class of navigable streams is composed of those which are navigable, in fact, for vessels coming out of, and returning into, by continuous voyages, the navigable waters of other states. These streams are highways for commerce between the states. 4\\nOver the first of the above classes the state has exclusive jurisdiction; and may authorize obstructions of the streams of which it is composed, at pleasure, for the public good, and no action can be sustained on account of an obstruction so authorized; but if private property is taken or injured, it must be paid for as in other like cases. In the act of 1852, above referred to, the state has, accordingly, enacted, that \\\"the declaration of navigable water courses as navigable, by said county board, shall not affect any mill, nor any dam, aqueduct, viaduct, bridge, or machinery, which has been, or may hereafter be established on said stream.\\\"\\nOver the streams composing the second class, the state has, also, in the absence of congressional interference, jurisdiction equally supreme, so far as they are within her territorial limits. Wilson v. The Blackbird Creek Marsh Co., 2 Peters (U. S.) R. 245.\\u2014The State of Pennsylvania v. The Wheeling Bridge Co., 13 Howard (U. S.) R. 518.\\u2014Rundle et al. v. The Delaware and Raritan Canal Co., 14 id. 80.\\nBut the national legislature may interfere and deprive the state of this jurisdiction. By the constitution of the United States, art. 1., section 8, congress has power \\\"to regulate commerce with foreign nations, and among the several states, and'with the Indiam, tribes.\\\" This power to regulate commerce among the states, includes the right to keep open and free the natural channels of that commerce. Gibbons v. Ogden, 9 Wheat. 1.\\u2014The State of Pennsylvania v. The Wheeling Bridge Co., supra. When congress exercises this power, therefore, the previous power of the state to shut up, or materially obstruct said channels, is suspended.\\nHas congress exercised the power ?\\nOn the 13th of July, 1787, prior to the adoption of the constitution of the United States, the celebrated ordinance for the government of the territory northwest of the Ohio river was passed, containing, among a great many other stipulations, one providing that the navigable waters, &c., should be free, &c.\\nAfterwards, in September, 1787, was framed the constitution of the United States, which was subsequently ratified by the states, and which, as the states of the northwest entered into the confederacy under it, formed a new com pact of government for them, and being later than the ordinance, superseded it, so far, at least, as to abrogate all restraints upon the powers of the states formed out of said northwestern territory, not existing upon the powers of the original states; and so we understand the Supreme Court of the United States, in Pollard's Lessee v. Hagan, 3 Howard 212, to have unanimously decided. In other words, the states of this confederacy are equal under the constitution. Every thing that one has power to do, each has power to do, so far as restraint from prior compact, or the general government, is concerned.\\nBut, as has been said, congress has power, under the constitution, to regulate commerce between the states; and this power, as we have seen, includes that of keeping open and free the navigable rivers which are channels of this inter-state trade; and it is decided by the Supreme Court of the United States in Pollard's Lessee v. Hagan, and The State of Pennsylvania v. The Wheeling Bridge Co., supra, that congress has, by subsequent acts, so far recognized and adopted the provision of said ordinance of the 13th of July, 1787, in regard to navigable streams, as to give it the force of a subsisting law of the United States.\\nA state, then, cannot seriously obstruct the navigation of those streams which are channels of inter-state trade, as congress has interfered to regulate commerce upon them.\\nIt remains to inquire to which of the two classes of streams under consideration Raccoon creek, in Parke county, Indiana, belongs. The declaration does not inform us. It avers simply that said creek is navigable, at the place of obstruction in Pcurke county, for all the citizens; and the plea avers, and the demurrer admits, that said stream lies wholly within this state. If we resort to the map for information, indications do not favor the national character of this creek; and we are free to confess that our general information is not such as to enable us to say, historically, that Raccoon creek, in Parke county, Indiana, is an inter-state navigable stream. We have never yet heard of a vessel clearing from the port of New- Orleans, St. Louis, or Cincinnati, and discharging its cargo at a port or harbor on said Raccoon creek. Nor have we ever heard of congress making appropriations for the improvement of the navigation of said creek.\\nR. W. Thompson, for the plaintiff.\\nA. L. Roache, for the defendants.\\nWe will farther remark, that, in our opinion, it is not the policy of this state to enlarge the list of those streams that shall be held navigable within the power of congress; for by such enlargement she diminishes her own power over the waters of the state, and to the same extent cripples her action for its improvement. If every stream which may float a birch canoe, or, in a freshet, a raft of logs or a flatboat, is to be held a navigable stream within the power of congress, it will be impossible for this state to construct additional railroads, canals, or turnpikes, or continue those now in existence, as the bridges, &e., over them are, and will be, inevitable obstructions, and, consequently, nuisances, which must be removed, or, at great expense and inconvenience, modified in their structure. And for what good? In the early settlement of a country, before artificial highways are constructed, these small streams afford some temporary convenience; but they are infinitely inferior to such highways when constructed; and on their construction, these streams almost cease to be used by the public, and, hence, should not be held to be public highways, to be forever kept open to the great detriment of the public. If not regarded as highways legally, they may and would be used in a new country till artificial ways were constructed, and longer than that they would not be needed.\\nWe think Raccoon creek, in Parke county, is not an inter-state navigable stream; and that, hence, the state had a right to authorize its obstruction.\\nPer Curiam. \\u2014 The judgment is affirmed with costs.\"}"

ind/1452099.json

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+"{\"id\": \"1452099\", \"name\": \"Harriman v. Southam\", \"name_abbreviation\": \"Harriman v. Southam\", \"decision_date\": \"1861-06-01\", \"docket_number\": \"\", \"first_page\": \"190\", \"last_page\": \"191\", \"citations\": \"16 Ind. 190\", \"volume\": \"16\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:40:35.192328+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Harriman v. Southam.\", \"head_matter\": \"Harriman v. Southam.\\nSaturday, June 1.\\nA title by deed implies a contract, or at least competent parties; and hence a deed to a person having no existence passes no title from the grantor.\\nThere never having been (according to the answer in this case) a corporation in this State, acting under color of authority, by the name of the \\u201cFort \\u2018 Wayne and Southern Railroad Company,\\u201d a conveyance to such supposed corporation did not divest the grantor of his title.\\nThe grantor is not estopped, in such case, to deny the existence of the corporation, as the doctrine of estoppel only applies to cases where there is an existing statute, known to the Courts, authorizing such corporation.\\nAPPEAL from the Henry Circuit Court.\", \"word_count\": \"524\", \"char_count\": \"3091\", \"text\": \"Perkins, J.\\nHarriman sued Southam to recover a tract of Tand. Harrimam owned the land in question in 1851, and conveyed it to the Fort Wayne and Soitthern Railroad Company for stock. A judgment was obtained against the company, the land sold on execution by virtue of it, and Southani became the purchaser.\\nAccording to the,answer, there never was a corporation in this Strife by the name of the '\\u2022Fort Wayne and Southern Railroad Company,\\\" acting under color of authority. The State v. Dawson et al., at this term.\\nHence, there was no grantee to receive the title attempted to be conveyed by Harriman. \\\"A title by deed implies a contract, or at least competent parties. A deed to a person having no existence is generally inoperative, and passes no title from the grantor.\\\" \\\"If a man grant his estate to an imaginary corporation, which exists only in his own mind, no title passes.\\\" Russell v. Topping, 5 McLean, 202.\\nThe doctrine of estoppel does not apply in this case. In Jones v. The Cincinnati Type Foundry Co., 14 Ind. 89, it is said, touching contracts with corporations:\\nC. B. Smith, W. J. Smith and If. L. Bundy, for the appellant.\\nJ. H. Mellett and E. B. Martindale, for the appellee.\\n. \\\" The doctrine of conclusive estoppel seems more properly-applied to eases involving the question of legality of organization, where the fact of an existing statute authorizing, in the given case, such corporation, is known to the Court, either by judicial notice, or actual evidence in the cause.\\\"\\nIn such cases, the power existing, the regularity of its exercise is admitted by the person contracting with the corporation. Here, there was no grant of power existing for the creation of the corporation pretended to be organized, and hence no even irregularly organized corporation.\\nThe consequence is, no title passed from Harriman, and the land still remains his.\\nPer Curiam.\\nThe judgment is reversed, with costs. Cause remanded for further proceedings.\\nThe averments of the answer, as to the corporate existence of the Fort Wayne and Southern Railroad Company, were as follows, viz., \\\" That the said Fort Wayne and Southern Railroad Company was at that time a corporation, organized under a special charter passed by the Legislature of the State of Indiana in the year 1849, and organized on the first day of June, 1852, to which the plaintiff might legally convey.\"}"

ind/1456397.json

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+"{\"id\": \"1456397\", \"name\": \"Hoss v. The State\", \"name_abbreviation\": \"Hoss v. State\", \"decision_date\": \"1862-05\", \"docket_number\": \"\", \"first_page\": \"349\", \"last_page\": \"350\", \"citations\": \"18 Ind. 349\", \"volume\": \"18\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:43:01.907466+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hoss v. The State.\", \"head_matter\": \"Hoss v. The State.\\nOn the trial of the appellant on an indictment for murder in the second degree, the Court erroneously instructed the jury, that, on eonyietion of manslaughter, the heaviest punishment they could inflict was confinement for fourteen years in the penitentiary;, and the appellant was then convicted of murder in the second degree, and sentenced to the penitentiary for life.\\n\\u00a3{eld, That such instruction might have prejudiced the defendant, and entitled him to \\u00e1 reversal of the judgment.\\nAPPEAL from the Marion Circuit Court.\", \"word_count\": \"338\", \"char_count\": \"2041\", \"text\": \"Her Curiam.\\nHoss was indicted for murder in the second degree. On that indictment he might he convicted for the offence named, or for manslaughter.\\n'The lightest punishment for murder in the second degree is imprisonment in the penitentiary for life. 2 Gl. & H. pp. 437, 438. The heaviest punishment for manslaughter is imprisonment in the same place for twenty-one years; IUcl; but, on the trial of said cause, the Court told the jury that if they convicted of manslaughter, the heaviest punishment they could inflict was imprisonment as above for fourteen years. Under this instruction the jury found the defendant guilty of murder in the second degree, whereby he was sentenced for life to the State prison. The instruction may have prejudiced the defendant. If the jury had been told that they could punish, upon a verdict of manslaughter, for twenty-one years in the State prison, they, thinking that to be punishment enough, might have so found; while, thinking fourteen years insufficient, they may have been induced to find murder in the second degree, and thus have inflicted a higher punishment than they otherwise would have done.\\nIt may also be stated that in homicide, if there be intention to kill, but without premeditation and malice, the offence is manslaughter. Dennison v. The State, 13 Ind. 510.\\nThomas D. Waif oh and JR. JL. Waif oh, for the appellant.\\nThe judgment is reversed. Cause remanded. The Clerk is directed to issue the proper order for the return of the defendant.\"}"

ind/1474279.json

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+"{\"id\": \"1474279\", \"name\": \"Perry v. McEwen\", \"name_abbreviation\": \"Perry v. McEwen\", \"decision_date\": \"1864-05\", \"docket_number\": \"\", \"first_page\": \"440\", \"last_page\": \"441\", \"citations\": \"22 Ind. 440\", \"volume\": \"22\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:07:48.898628+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Perry v. McEwen.\", \"head_matter\": \"Perry v. McEwen.\\nTrust\\u2014Forfeiture\\u2014Injunction.\\u2014Where a lot is conveyed to trustees of a religious society, for the use of such society, according to the discipline, &c., and the society erect a church building thereon, and the trustees lease the basement thereof, which was made for a prayer room, to a teacher of a common day school, with leave to him to change the internal arrangements of the room to adapt it to his business, such trustees may be enjoined, on the application of members of the society, from such leasing.\\nAPPEAL from the Bartholomew Circuit Court.\", \"word_count\": \"595\", \"char_count\": \"3391\", \"text\": \"Perkins, J.\\nIn 1854, John F. Jones and Catharine, his wife, of Columbus, Indiana, executed a conveyance of a lot, in said town, to William MoFwen and others, trustees and their successors, &c., \\\"in trust foi' the uses and purposes named in said deed,\\\" which were, \\\" for the use of the members of the Methodist Episcopal Church in the United States, according to the discipline, &c., of the general conference, in which church on said lot, at all times, the ministers thereof shall be permitted to preach and expound God's holy word,\\\" &c.\\nMoney was subscribed, and a church building erected on the lot, costing some 7,000 to 8,000 dollars, of which sum said McFioen contributed 1,500 dollars. The building has a basement story on the ground, fitted up for prayer meetings, and regular church service in inclement weather, having a pulpit, seats, &e., and being neatly papered, &c.\\nThis basement story, the trustees of the church leased for a term, to the teacher of a day common school, authorizing such changes to' be made in the internal arrangements of the room, as would make it convenient for use as such common school room. William McFwen, above named, applied to the Circuit Court for an injunction restraining the trustees and teacher from converting said church room to use as such common school room.\\nThomas A. Hendricks, Oscar B. Hord, J. B. McDonald, and A. L. Boache, for the appellant.\\nFrancis T. Hord, M. M. Bay, and C. F. Walker, for the appellee.\\nA perpetual injunction was granted.\\nThe grant, in this case, was not a general one, of property to the society, without designation of use. Had it been, we should have had no difficulty in the premises. As it is, after considerable reflection, with some hesitation, we have concluded that the judgment below must be affirmed.\\nIt was held in Broadway v. The State, 8 Blackf. 290, that the occasional abuses of the use of trust property did not occasion a forfeiture of the property. But the question of forfeiture is one, and that of the right and duty of a Court to restrain such abuses is another. And in the case at bar, the property was diverted in a way contemplating permanency. The property, in this case, was conveyed to be used for a particular purpose. How, if it is held, that there may be a departure from'that purpose, who shall limit such departure? Suppose the house had been leased for a saloon, a billiard room, or the like, this would have been restrained. Suppose for a school to teach Atheism; or to teach doctrines simply adverse to the creed of Methodism; if any departure from the trust in the use of the property is allowed over objections by members, what are the departures that are to be allowed? See Hill on Trustees, Am. ed., p. 699, note; Scott v. Stipe, et al., 12 Ind. 74.\\nPer Curiam.\\nThe judgment below is affirmed, with costs.\"}"

ind/1476184.json

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+"{\"id\": \"1476184\", \"name\": \"The Indiana and Illinois Central R. R. Co. v. Davis\", \"name_abbreviation\": \"Indiana & Illinois Central R. R. v. Davis\", \"decision_date\": \"1863-05\", \"docket_number\": \"\", \"first_page\": \"6\", \"last_page\": \"9\", \"citations\": \"20 Ind. 6\", \"volume\": \"20\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:38:56.555997+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Indiana and Illinois Central R. R. Co. v. Davis.\", \"head_matter\": \"The Indiana and Illinois Central R. R. Co. v. Davis.\\nOrder \\u2014 Demand.\\u2014Where an order is drawn, in proper form, by the secretary of a corporation upon the treasurer thereof, for the payment of a sum of money actually due from the corporation to the payee of the order, it is not necessary for the payee to present it to the treasurer for payment, within a reasonable time after receiving it, or at any time before suing upon it, as a condition precedent to such suit.\\nConstruction. \\u2014 Such an order may be treated by the holder thereof, at his option, as the mere promissory note of the corporation, payable at a particular place, or probably, as a bill of exchange.\\nCases OVERRULED. \\u2014 The cases of The Wardens, &c. v. Moore, 1 Ind. R. 289; English, &c. v. The Board, &c. 6 id. 437; The Marion &c. R. R. Co. v. Dillon, 7 id. 404; The Marion and L. R. R. Co. v. Lomax, id. 648, and the Marion &c. R. R. Co. v. Hodge, 9 id. 163, so far as they are inconsistent with the decision herein, are overruled.\\nAPPEAL from tbe Marion Common Pleas.\", \"word_count\": \"1176\", \"char_count\": \"6342\", \"text\": \"Perkins, J.\\nSuit upon two orders each, of the- following tenor:\\n\\\"$1000. Treasurer of the Indiana and Illinois Central Railway Company, pay to J. C. Bancroft Davis, or order, one thousand dollars, allowed for services, expenses, printing, &c. (Allowed, December session of Board, 1857.)\\nJ. M. Sharpe, Secretary.\\\"\\nJanuary, 9,1858.\\nThe suit is against the corporation, and the complaint alleges that she drew the order or bill sued on, by her secretary, upon her treasurer; that the bill was presented for payment, and payment refused.\\nThe defendant answered by:\\n1. The general denial.\\n2. By allegations that the order had not been presented to her treasurer for acceptance, or payment. This was simply reasserting a part of the general denial.\\n3. By averring that the order was not presented to her treasurer till the 20th of November, 1860.\\nThe 4th, 5th, 6th, 7th and 8th defences set up failure and illegality of consideration.\\nThe plaintiff' replied by demurring to the 2d and 3d paragraphs of the answer, and taking issue of fact upon the 4th, 5th, 6th, 7th, and 8th paragraphs.\\nThe demurrer was sustained.\\nThe issues of fact were tried and judgment rendered for the plaintiff.\\nThe question raised and argued in this cause is this : \\\"Was it necessary for the holder, the payee of the written instrument sued on, to present it to the treasurer of the corporation for payment, within a reasonable time after receiving it, or at any time before suing upon it, as a condition precedent to such suit ? The record does not present the question in this shape, but for the purposes of this decision, we will treat it as doing so.\\nLet us first inquire, what is the character, m legal effect, of that instrument ?\\nIt shows on its face three things.\\n1. That it is drawn by the Indiana and Illinois Central Bail-way Company.\\n2. That it is drawn upon the Indiana and Illinois Central Bailway Company.\\n3. That it was drawn for the payment of a debt, actually owed by the corporation, to the payee of the order.\\nAs the order or writing stands, there is but one person that can be sued on it; and, had it been accepted, there still would have been but one person liable to be sued on it, and that person was and is the Indiana qnd Illinois Central Railway Company. The paper shows on its face that the drawer and drawee are the same person, and that the person actually owed the payee the sum specified in the writing.\\nIn such case, the writing may clearly be treated by the holder, if he elect to do so, as the promissory note of the corporation, but payable at a particular place, viz: the treasurer's office of the corporation. And the question then is, must such a note be presented at the place where it is payable for payment before the maker can be sued on it?\\nAt an early day such was held to be the law in Indiana. 1 Blackf. 257, and Palmer v. Hughes, id. 328; and see 1 Gill. (Ill.) Rep. p. 15. But those decisions have been overruled by judicial decisions, and changed by statutory enactments. Hartwell v. Candler, 5 id. 215; 2 G. & H. 107.\\nBut the plaintiff takes a risk in suing upon such paper with-, out having first made a demand, because, should the defendant set up and prove a readiness to pay at the place before suit, the circumstances might be such as to subject the plaintiff to costs, as in case of a tender. 1 Am. L. C. pp, 367, 368. In the case at bar, it was proved on the.trial that the plaintiff had, as averred in his complaint, made demand of payment before suit, and that payment had been refused without excuse assigned for the refusal. No motion was made for greater certainty in the averment, and proof of demand at any time was proper. The cases of Hasey v. White Pigeon, &c. 1 Dougl. (Mich.) Rep. 193; Fairchild v. Ogdensburg, &c., 15 N. Y. Rep. 337; Miller v. Thompson, 3 Mann. & Gra. 576, and The Board, &c. v. Day, 19 Ind. 450, are in point. There is, in our own reports, a series of erroneous cases, which are overruled by the decision we now make. The decisions in the series are built one upon the other from the first, which was made without much consideration by the counsel or the Court, as authorities were not cited, nor have they been in the cases following it.\\nB. K. Dlliolt, for the appellant.\\nN. B. and C. Taylor, for the appellee.\\nIt is. insisted that the Court is irrevocably committed to its error if it be such; but we think, on a question of general commercial law, we had better retrace our steps from error at any point, rather than continue in it. The cases overruled or modified are found as follows: 1 Ind. 289; 6 id. 437; 7 id. 404, 648, and 9 id. 163. \\\"We do not say that the holder of an order like that sued on may not treat it as a bill of exchange if he elects to do so; see The State Bank v. Bowers, 8 Blackf. 73; but probably the drawer can not compel the holder to so treat it. But in the case at bar, if the instrument be treated, as a bill, still the plaintiff is entitled to recover on the case made by the special finding below, it falling precisely within Kelly v. The Mayor, &c., 4 Hill (N. Y.) Rep. 263, and Spangler v. McDaniels, 3 Ind. 275. See, also, 1 Am. L. Cases, supra. The case of Moss v. Livingston, 4 Com. (N. Y.) Rep. is upon an entirely different question.\\nPer Curiam.\\nThe judgment is affirmed with 1 per cent, damages and costs.\"}"

ind/1488949.json

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+"{\"id\": \"1488949\", \"name\": \"Depuy v. Clark\", \"name_abbreviation\": \"Depuy v. Clark\", \"decision_date\": \"1859-06-09\", \"docket_number\": \"\", \"first_page\": \"427\", \"last_page\": \"434\", \"citations\": \"12 Ind. 427\", \"volume\": \"12\", \"reporter\": \"Indiana Reports\", \"court\": \"Supreme Court of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-10T23:36:37.090733+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Depuy v. Clark.\", \"head_matter\": \"Depuy v. Clark.\\nThe pledgee of a promissory note, who settles with the maker and surrenders it, thereby becomes liable to account to the pledgor for the full amount thereof. ^\\nIf the pledgee of a promissory note, upon settlement, surrender it to the maker, in consideration of a sum of money equal to the debt for which it was pledged, and a reasonable compensation for collecting the same, and. another promissory note for the balance, the pledgor may demand citify such other note, or the full amount of the original pledge, after deducting the sum for which it was pledged, and such reasonable compensation.\\n' If the pledgee of a promissory note settle with the maker and surrender it to him for a sum of money equal to, or greater than, the debt thereby secured, and another promissory note for the balance, the pledgor may maintain suit for the amount of the pledge without first having made a demand.\\nThursday, June 9.\\nAPPEAL from the Wabash Court of Common Pleas.\", \"word_count\": \"2490\", \"char_count\": \"13681\", \"text\": \"Worden, J.\\nAction by the appellee against the appellant to recover the amount of a promissory note made by one Volney L. Williams to the plaintiff, for the sum of 643 dollars, 48 cents, dated October 10, 1853, and payable one day after date, alleged to have been placed in the hands of the defendant by the plaintiff, as collateral security for the payment of an account of 50 dollars, due from the plaintiff to the defendant. Averment that the defendant had received certain property and some money from Williams, on the note, and that he had surrendered up the note to 'Williams, taking the note of Williams payable to himself fpr the balance, amounting to 439 dollars, 77 cents. The claim was set out in three several paragraphs of the complaint. There was a demurrer filed to the complaint for misjoinder of causes of action, which was overruled. This decision we cannot revise, if wrong. 2. E. S. p. 38, \\u00a7 52.\\nThere were demurrers filed to two of the paragraphs of the complaint, but as none of the statutory causes of demurrer were assigned, they were correctly overruled. The State v. Leach, 10 Ind. R. 308.\\u2014Lane v. The State, 7 id. 426.\\nThe defendant answered in several paragraphs, to which replications were filed, and the cause was tried by a jury, j^jerdict for the plaintiff for 577 dollars, 12 cents, on which judgment was rendered, over a motion for a new trial.\\nBy a bill of exceptions setting out all the evidence, it appears that on the trial the plaintiff proved by a witness that he started west in November, 1853; and that soon gjiter he started, the defendant told the witness that he had loaned the plaintiff 60 or 65 dollars, and had taken of him a note on Williams, his half-brother, for some 607 dollars, ^ security; and that he had taken an assignment to the effect that he was to repay the money, or the Williams note was to be his. He said, if Clark did not pay him by a certain time, the note was to be his; that he had let Clark have the money to go west to see his brother, Williams, to get money to redeem his land from a mortgage, and Clark did not return for fourteen months.\\nBy said Volney L. Williams, he proved that in May, 1854, the defendant presented to him, in Illinois', the note in question, and that he settled it by giving the defendant a buggy and harness, at 225 dollars, 300 dollars in\\\" money, and his note for the ^Balance of 439 dollars, 77 cents; payable in six months, to the defendant. The other note was given up to Williams.\\nWilliams was solvent at the time, and worth considerably more than would pay all his debts. He did not represent to the defendant that he could not make the money off him by suing, or that he was embarrassed.\\nThis is the substance of the plaintiff's testimony, except some testimony tending to show a demand before suit brought.\\nDiu-ing the examination of one of plaintiff's witnesses, the defendant offered to prove by him that the plaintiff had offered to sell the Williams note to the witness for the same amount that defendant gave for it, 85 dollars, to which proof plaintiff's counsel objected, on the ground that it formed no part of the agreement between the parties to the suit; and the objection was sustained, and the.defendant excepted. .\\nThe objection was not based upon the ground that the defendant could not go out of a proper cross-examination for the purpose of establishing facts necessary to sustain his defense, and that, if he wished to prove such facts, he must make the witness his own, and introduce him for that purpose. The objection was simply that the testimony was irrelevant. We cannot say, however, that the ruling was wrong. From all the evidence then before the Court, the testimony did not appear to be relevant. Counsel did not even undertake to afterwards show its relevancy. The ground assumed in the argument is, that if Clarke offer ed the note to the witness for 85 dollars, it showed what he thought it to be worth, and the probability of his having offered and sold it to Hepivy for the same sum. But at that time there was no evidence before the Court on the subject of the purchase of the note by Depuy,fox the sum of 85 dollars, or otherwise. The offering of a piece of property to one man for a certain sum, would not ordinarily have any tendency to prove a sale of it to another man for the same sum.\\nIf, after the defendant had introduced his proof to establish a sale of the note by the plaintiff to the*defendant fox 85 dollars, the disparity between the amount paid and the amount of the note, rendered the transaction improbable, or the testimony doubtful, and if the testimony offered became thereby admissible (a question which we do not decide), as showing the value put upon the note by Ciar)^ and thus removing the apparent improbability of the transaction, the proof should have been then offered.\\nIt is said, in note 326 to Phillip's Evidence, that \\\"If evidence be irrelevant at the time it is offered, it is not error to reject it because other evidence may afterwards be given, in connection with which it would be relevant. If it would be relevant in connection with other facts, it should be presented in connection with those facts, and an offer to fcl-. low the evidence proposed wiih proof of those facts, at a proper time.\\\"\\nOne of the grounds of defense was, that the note was unconditionally sold and transferred by the plaintiff' to the defendant.\\nThe defendant proved by a witness, that a few days before Clark went west and was so long gone, witness was in defendant's office, when the plaintiff came in and proposed to sell the defendant a note on a man named Williams for 600 or 700 dollars; defendant said he did not care about buying it. Clark asked 100 dollars for it; defendant said he could not give that. Clark was owing defendant a*doctor's bill, and defendant proposed to give Clark the account against him, and cash, to \\u2022 make, in all, 35 dollars. The account was between 20 and 30 dollars. Clark said he would take it, and the money was paid to him, and the note was transferred to the defendant, and the plaintiff-went out. After he had gone out, the defendant called to him and asked him when he was coming home. Clark replied \\\"in a month.\\\" The defendant then told him, if he would come back in a month, he would let him have the note for the same he. had given him for it. This last conversation was after the trade for the note had been made, and after the plaintiff had gone out.\\nIf the account of the transaction given, by the last-mentioned witneSs, be correct, it is clear that the plaintiff has no ground of action against the defendant. There was a complete sale and transfer of the note for a valuable consideration. According to this statement of the case, the debt which the plaintiff owed defendant for a doctor's bill, was extinguished, and there was no agreement, express or implied, to refund the money paid for a transfer of the note.\\n~ Suppose, on this state of facts, the defendant had sued the plaintiff for the doctor's bill and the money advanced, he certainly could not have recovered.\\nThere was no debt to secure which the note could be pledged, as the transfer of the note canceled the previous indebtedness. Nor was the transfer of the note in any manner conditional, but absolute. Even the proposition made by the defendant to the plaintiff, after the trade was completed, that if he would in a month come back, he, the defendant, would let the plaintiff have the note again for what defendant had given him for it, does not appear to have been accepted by the plaintiff. He did not agree to take the note back on the terms proposed. A proposition on one side, not accepted on the other, has not the binding force of a contract.\\nOn the other hand, if the note was placed in the hands of the defendant as a mere pledge or collateral security for the payment of the debt, we are of opinion that the defendant, under the circumstances shown, was liable to the plaintiff for the amount of the note and interest, deducting the amount of the defendant's claim against the plaintiff, and his reasonable expenses incurred in collecting the note. By settling the note with Williams in the manner he did, and surrendering it up to him, be became bound to the plaintiff for the full amount thereof.\\nIn Story on Bailments, \\u00a7 321, it is said that, \\\" Where the pledge is a negotiable security (such as a negotiable note), the pledgee has a right to recover and receive the money due thereon, and to sue for it in his own name. But he has no right (unless, perhaps, in a very extreme case) to compromise with the parties to the security for a less sum than the sum due on the security, aftd if he does, he will be compelled to account to the pledgor for the full value.\\\"\\nThis doctrine is sustained by the case of Garlick v. James, 12 Johns. 146, which was like the present in many of its features. The maker of the note pledged, in that case, as in the present, was solvent.\\nIt is claimed that the defendant cannot be liable for the amount of the note given him by Williams, which is not yet paid. But we do not see how the fact that that note has not been paid, would lessen his liability. Suppose he had not taken that note at all, but had compromised .the note pledged, and given it up to the maker upon receiving the property and money paid him; he would then have been liable, under the authorities, for the full amount. The fact that he has the prospect of getting something more, cannot surely lessen his liability. In the case of Garlick v. James, supra, the pledgee had compromised with the maker of the note, and taken about one-half of what was due upon it. It was urged, on the part of the defendant, that the plaintiff might still call upon the maker for the balance due upon the note, as the payment made by him being a less sum than was due, it would not operate as a discharge of the note. But the Court said: \\\" Admitting this to be correct, it will not exonerate the defendant if he has so disposed of the pledge as to make himself responsible. A party may have two remedies for an injury, and may elect which to pursue.\\\"\\nSo here, admitting that the plaintiff might be entitled to the proceeds of the note given by Williams to the defendant, he is not bound to pursue that remedy, but may hold the defendant responsible for the whole amount.\\nAt the time of the trial, the Williams note amounted, principal and interest, to about 730 dollars. The verdict makes a deduction from this amount of about 153 dollars, for the defendant's claim on the plaintiff, and, as we suppose, for the expenses incurred by the defendant in collecting the Williams note. This, under the evidence, seems a fair and reasonable deduction. The damages are not excessive, if the plaintiff can recover at all.\\nThe jury found in accordance with the admissions of the defendant as proved, rather than the testimony offered by the defendant, and we do not feel authorized to disturb their finding. \\u00bfAccording to those admissions, the note was placed in the hands of the defendant as a mere security for the repayment of the money loaned; and although he at the same time said that if the money was not repaid by a certain time the note was to be his, yet the terms of a conditional sale, if the admissions have a tendency to show such sale, are left vague and uncertain, and the jury having passed upon the whole matter, and having found virtually that the defendant held the note as a mere security, we cannot disturb their verdict.\\nNo point is made as to the variance between the complaint and the evidence, as to the debt for which the note was pledged; but had such point been made, the complaint was amendable below, and would be deemed amended here. Warbritton v. Cameron, 10 Ind. R. 302.\\nA point is made as to the sufficiency of the proof of demand for the note before suit, and that no tender was made of the debt to secure which the note was pledged. We think no such tender or demand was necessary. tBy converting the note to his own use, the defendant became liable to the plaintiff in a greater sum than that to secure which the note was pledged; and for the sum due him, the plaintiff could sue without making any tender of what was due from him to the defendant. And by converting the note to his own use, the defendant became liable to an ac tion without any previous demand. Spencer v. Morgan, 5 Ind. R. 146.\\u2014 Cox v. Reynolds, 7 id. 257.\\nJ. U. Pettit, G. Cowgill, and J. M. Wheeler, for the appellant.\\nJ. D. Conner and G. E. Gordon, for the appellee.\\nOn an examination of the whole case, we find no error which we think should reverse the judgment.\\nPer Givriam.\\nThe judgment is affirmed with 1 per cent, damages and costs.\"}"

ind/1496149.json

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+"{\"id\": \"1496149\", \"name\": \"State of Indiana ex rel. Calvin Louis Taylor v. Allen Superior Court, Criminal-Felony Division, Alfred W. Moellering, Judge; State of Indiana ex rel. Lancia Tipsord v. Allen Superior Court, Criminal-Felony Division, Alfred W. Moellering, Judge\", \"name_abbreviation\": \"State ex rel. Taylor v. Allen Superior Court\", \"decision_date\": \"1977-08-19\", \"docket_number\": \"Nos. 3-677A147; 3-677A148\", \"first_page\": \"77\", \"last_page\": \"79\", \"citations\": \"174 Ind. App. 77\", \"volume\": \"174\", \"reporter\": \"Indiana Court of Appeals Reports\", \"court\": \"Court of Appeals of Indiana\", \"jurisdiction\": \"Indiana\", \"last_updated\": \"2021-08-11T00:18:39.054943+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State of Indiana ex rel. Calvin Louis Taylor v. Allen Superior Court, Criminal-Felony Division, Alfred W. Moellering, Judge. State of Indiana ex rel. Lancia Tipsord v. Allen Superior Court, Criminal-Felony Division, Alfred W. Moellering, Judge.\", \"head_matter\": \"State of Indiana ex rel. Calvin Louis Taylor v. Allen Superior Court, Criminal-Felony Division, Alfred W. Moellering, Judge. State of Indiana ex rel. Lancia Tipsord v. Allen Superior Court, Criminal-Felony Division, Alfred W. Moellering, Judge.\\n[Nos. 3-677A147; 3-677A148.\\nFiled August 19, 1977.]\\nBarrie C. Tremper, Allen County Public Defender, Thomas L. Ryan, Deputy Allen County Public Defender, of Fort Wayne, for relators.\", \"word_count\": \"809\", \"char_count\": \"4948\", \"text\": \"Hoffman, J.\\nThese two cases come before this court on \\\"Petition for Alternative Writ of Mandamus and/or Prohibition.\\\" In each the defendants pleaded guilty to the crimes charged and were sentenced by the court. The defendants then filed petitions for attorney fees, cost of transcript and appeal, attempting to appeal the sentences imposed by the trial court. The sentences imposed were discretionary with the trial court and were permitted under the respective statutes. The trial court denied the petitions. Each defendant asks this court to order respondent trial court to grant their petitions.\\nThe basic question presented is: May a defendant appeal a sentence that does not exceed constitutional limitations imposed by a judge after a guilty plea?\\nIn Crain v. State (1973), 261 Ind. 272, 301 N.E.2d 751, our Supreme Court held that the only procedural method to attack a guilty plea is by means of a petition for post-conviction relief under P.C. Rule 1.\\nHowever, here defendants wish only to appeal the sentence and not the guilty plea.\\nArticle 7, \\u00a7 4, of the Constitution of Indiana gives an express grant of power to the Supreme Court to review and revise the sentence imposed. However in Beard v. State (1975), 262 Ind. 643, at 649, 323 N.E.2d 216, at 219, our Supreme Court stated:\\n\\\"The grant appears to be beyond our inherent power to review and revise those sentences that exceed constitutional limitations, a responsibility that we have previously recognized. Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d 815; Hobbs v. State (1969), 253 Ind. 195, 252 N.E.2d 498; Landaw v. State (1972), 258 Ind. 67, 279 N.E.2d 230. Thus far, we have refrained from exercising this recently granted power and believe that it can be properly exercised only under a program of policies and procedures not yet established. We, therefore, decline the defendant's prayer for a review of his sentence.\\\"\\nSince the Beard decision our Supreme Court has consistently declined to review sentences. Miller v. State (1977), 266 Ind. 461, 364 N.E.2d 129; Parker v. State (1976), 265 Ind. 595, 358 N.E.2d 110; Delph v. State (1975), 263 Ind. 385, 332 N.E.2d 783; Stoehr v. State (1975), 263 Ind. 208, 328 N.E.2d 422.\\nTherefore, a defendant cannot establish reversible error upon the sentence imposed in the absence of a claim that it exceeds either constitutional or statutory limitations. Since the only matters the defendants sought to review do not present a reviewable issue, the trial court properly denied their petitions to expend public funds.\\nThe respective petitions for alternative writ of mandamus and/or prohibition filed by relators herein are denied.\\nGarrard, J. concurs.\\nStaton, P.J. Dissents with Opinion.\"}"