295 N.E.2d 841 (Ind.App. 1 Dist. 1973), 1--872A39, Booher v. Alhom, Inc.

Docket Nº1--872A39.
Citation295 N.E.2d 841, 156 Ind.App. 192
Party NameOtho L. BOOHER, Plaintiff-Appellant, v. ALHOM, INC., Defendant-Appellee.
Case DateMay 14, 1973
CourtCourt of Appeals of Indiana

Page 841

295 N.E.2d 841 (Ind.App. 1 Dist. 1973)

156 Ind.App. 192

Otho L. BOOHER, Plaintiff-Appellant,

v.

ALHOM, INC., Defendant-Appellee.

No. 1--872A39.

Court of Appeals of Indiana, First District.

May 14, 1973

Page 842

[Copyrighted Material Omitted]

Page 843

Hammond and Pugh, John R. Hammond, Larry S. Pugh, John R. Cromer, Indianapolis, for appellant.

Ice, Miller, Donadio & Ryan, [156 Ind.App. 193] Jim A. O'Neal, Indianapolis, Acher & Gholston, Robert M. Gholston, Franklin, for appellee.

LYBROOK, Judge.

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 [156 Ind.App. 194] 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.

Page 844

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.

[156 Ind.App. 195] 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...

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