Booher v. Alhom, Inc., 1--872A39
| Decision Date | 14 May 1973 |
| Docket Number | No. 1--872A39,1--872A39 |
| Citation | 156 Ind.App. 192,295 N.E.2d 841 |
| Parties | Otho L. BOOHER, Plaintiff-Appellant, v. ALHOM, INC., Defendant-Appellee. |
| Court | Indiana Appellate Court |
Hammond and Pugh, John R. Hammond, Larry S. Pugh, John R. Cromer, Indianapolis, for appellant.
Ice, Miller, Donadio & Ryan, Jim A. O'Neal, Indianapolis, Acher & Gholston, Robert M. Gholston, Franklin, for appellee.
Booher brought an action to recover damages for personal injuries, allegedly caused by Alhom's negligence. The jury returned a verdict in favor of Alhom and Booher appeals.
Issues presented for review are:
(1) Did the trial court err in allowing a defense witness to testify following an order for separation of witnesses?
(2) Did the trial court err in refusing to permit plaintiff to testify concerning remarks by defendant's agent, which appellant claims were a part of the res geate?
(3) Was the verdict supported by sufficient evidence?
(4) Were the damages inadequate?
(5) Did the trial court err in giving and refusing certain instructions?
The evidence showed that on October 22, 1969, Booher was President of a construction firm which was engaged in building an apartment complex in southwestern Marion County, Indiana. On that day, 16 patio doors which had been ordered from Alhom, were delivered by a truck driver, Carl Reigenour, an Alhom agent and employee. The doors, which weighed about 90 pounds each, were stacked in the truck, standing vertically, leaning against the side of the truck and secured by straps.
Booher testified that when the truck driver arrived at the construction site, he asked Booher for some help in unloading. In response to a question by Booher, the driver replied, "Well, you're not gonna be lifting any of these, you're too old, you could get in there and stay them while I taken them off the truck." Alhom denies that Booher was asked to help.
Booher got up on the truck to steady the doors while they were being unloaded. After two of them were removed, Booher discovered that the remaining doors were leaning toward him and he called for help. Booher attempted to hold the doors upright, but they fell against him, pinning him to the opposite side of the truck.
Booher alleged that he sustained certain personal injuries, loss of wages, and incurred hospital and medical bills as a proximate result of Alhom's negligence.
The evidence also showed that Booher suffered from a pre-existing arthritic condition and that his alleged wage loss was a result of his voluntary retirement. The evidence showed that Booher was 67 years of age and that after the accident, the corporation stopped paying his salary, but doubled his wife's salary as an employee of the company. Booher, his wife, and his son were the sole stock holders of the corporation. He accepted social security benefits three or four months after the injury.
The first issue raised concerns an alleged violation of an order separating the witnesses. Alhom had moved for separation of witnesses at the commencement of the trial. Mr. Leroy Schultz, an officer of the defendant corporation, was at the counsel table the first day of trial. On the second day, Schultz did not appear and Carl Reigenour, defendant's truck driver, sat at the counsel table as the corporation's representative.
Appellant objected to the substitution of Reigenour for Schultz because he knew that Reigenour was to testify. The objection was overruled and Reigenour was permitted to remain in the courtroom. When defendant called Reigenour as a witness, Booher renewed his prior objection which was in part as follows:
'Upon entering the court this morning, we find that there is no corporate officer and that the Defendant's truck driver, who would be an interested witness, who will be testifying in defendant's behalf, is present in the court room and we'd like to make an objection to his sitting in the court room listening to other testimony if he intends to testify.'
The objection was again overruled. We cannot say as a matter of law that the trial judge abused his discretion in permitting Reigenour to testify.
It has long been the law in Indiana that separation of witnesses is a matter within the discretion of the trial court and such rulings will not be disturbed unless there is a manifest abuse of discretion. Dudley v. State (1970), Ind., 263 N.E.2d 161. See also, Consumers Co. v. Ruble (1919), 69 Ind.App. 617, 122 N.E. 607.
Reigenour was apparently the only corporate employee with first hand knowledge of this incident. Permitting Reigenour to remain in the court room and later testify, even though there was an order for separation of witnesses, was not an abuse of discretion. See Cincinnati, etc. R. Co. v. Little, Admr. (1921), 190 Ind. 662, 131 N.E. 762 and The Indianapolis Cabinet Company v. Herrman (1893), 7 Ind.App. 462, 34 N.E. 579.
Booher next complains about the exclusion of testimony he offered as to alleged remarks made by Reigenour. He maintains these statements were admissible under the res gestae exception to the Hearsay Rule.
However, he has waived any alleged error by failure to make an offer to prove. Although TR. 43(C) appears to be permissive, and not mandatory, we are bound by the holding of the Supreme Court in Lipner v. Lipner (1971), Ind., 267 N.E.2d 393, wherein the court said:
In the case at bar, even if Booher had preserved this alleged error, the trial court was within the proper bounds of his discretion in excluding the statements, due to the time lapse between the incident and the alleged statements.
Plaintiff was rendered unconscious and did not recall how long he remained so. During this interim, however, sufficient time elapsed for the driver and plaintiff's employees to remove the doors from Booher, call the Fire Department from a telephone 100 yards away and for his son and a Deputy Sheriff to arrive upon the scene.
Under these circumstances, the trial judge did not abuse his discretion in excluding the testimony. In Kreuger v. Neumann (1958), 129 Ind.App. 300, 154 N.E.2d 741, the court said:
Appellant's third contention of error is that the verdict for the defendant was not supported by sufficient evidence. The jury's verdict is negative in character and therefore appellant presents nothing for consideration on appeal, under this specification. Hardy et al. v. Town of New Harmony, Indiana, et al. (1967), 248 Ind. 350, 227 N.E.2d 689.
Even in the absence of the above rule, appellant cannot prevail. Conflicting inferences could properly have been drawn concerning both defendant's alleged negligence and plaintiff's alleged contributory negligence. Resolving these conflicts was within the sole province of the jury.
Since there was sufficient evidence to support the jury's verdict for defendant and since the jury so found, the question of adequacy of damages requires no discussion.
We turn now to the errors claimed by appellant in instructing the jury. Appellant first complains of the failure to give his tendered instruction 5, which reads:
'A person either expressly or impliedly inviting another to come upon his premises is charged with the legal duty of exercising reasonable care in providing reasonably safe premises for such person while on said premises, and the failure on the part of such owner to exercise such care is negligence.
Therefore, if you find from a fair preponderance of the evidence in this case that the plaintiff was invited upon the premises of the defendant and did come thereupon, and the defendant failed to exercise reasonable care in providing for his safety, and that by reason thereof plaintiff was injured while thereupon, without fault on his part, then and under such circumstances your verdict may be for the plaintiff.'
However, appellant's instruction 4, which was given, adequately instructed the jury on this subject. It reads:
'I instruct you that under the law the owner of property who invites or engages some other person to do some work or act in respect to such property, assumes the duty to warn such persons of any danger or peril in the doing of such work or act which such owner knows of or ought as a reasonably prudent and careful person to know of, and of which the person invited to engage to do such work or act is not aware, or should not in the exercise of reasonable care be aware.
If the owner negligently permits a dangerous condition to exist with respect to such property and the other person thereby proximately receives an injury while doing the work or act which he has been invited or engaged to do and without contributory negligence on his part, then and under such circumstances the owner may be held responsible for such injury.'
Therefore, it was proper for the court to refuse appellant's instruction 5. As the court said in Lolla v. State (April 1973), Ind., 294 N.E.2d 798:
'. . . it is well settled in Indiana that the refusal or failure to give an instruction is not grounds for reversal if the substance is covered by other instructions.'
Appellant also maintains as error the failure to give his tendered instruction 8, which reads:
'If continued exposure to a known risk of injury is due to a lack of reasonable opportunity to escape...
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