417 N.E.2d 917 (Ind.App. 3 Dist. 1981), 3-779A210, Barrow v. Talbott

Docket Nº3-779A210.
Citation417 N.E.2d 917
Party NameDebra A. BARROW, Martha Barrow, Defendants-Appellants, v. Leslie J. TALBOTT, Jackson R. Talbott, Plaintiffs-Appellees.
Case DateFebruary 25, 1981
CourtCourt of Appeals of Indiana

Page 917

417 N.E.2d 917 (Ind.App. 3 Dist. 1981)

Debra A. BARROW, Martha Barrow, Defendants-Appellants,

v.

Leslie J. TALBOTT, Jackson R. Talbott, Plaintiffs-Appellees.

No. 3-779A210.

Court of Appeals of Indiana, Third District.

February 25, 1981

Page 918

[Copyrighted Material Omitted]

Page 919

Thomas W. Yoder, Livingston, Dildine, Haynie & Yoder, Fort Wayne, for defendants-appellants.

Gary M. Cappelli, Grossman, Cappelli, Boeglin & Gehring, Fort Wayne, for plaintiffs-appellees.

Page 920

HOFFMAN, Presiding Judge.

This is an appeal from an action for personal injuries brought by plaintiffs-appellees Leslie and Jackson Talbott against defendants-appellants Debra and Martha Barrow 1 arising out of a vehicular accident in which Leslie was a guest passenger. The jury awarded Leslie $80,000 in compensatory damages and $3,850 to Jackson for medical expenses incurred by him as a result of his daughter's injuries.

At approximately 9:00 P. M. on July 18, 1975 Debra, accompanied by Leslie, was operating a 1965 Buick station wagon on Foster Park Drive which runs through a municipal park located in Fort Wayne, Indiana. The road is narrow and lined with trees on both sides. While enroute to a friend's apartment, they approached a slow-moving vehicle driven by Sammy Wilson. After following this vehicle for a period of time Debra became angry at its slow rate of speed. When the cars entered a portion of the roadway which curved around a golf course, Debra began swerving her car into the oncoming lane. Leslie pleaded with Debra to stop weaving but to no avail. As the vehicles entered another straightaway Wilson pulled to the edge of the road. At this point Debra accelerated and shot ahead. Then she resumed her weaving pattern when suddenly she lost control. Her car careened into a tree, the jolt causing Leslie's face to strike the windshield.

Debra told the investigating officer, Policewoman Mosley that she had been traveling 50 mph when the accident occurred. Later she recanted, stating that her speed could not have been more than 25 or 30 mph. There was conflicting evidence as to whether the speed limit in the area of the collision was 15 or 25 mph.

The issues raised by this appeal include:

(1) whether there was sufficient evidence to support a finding that Debra was guilty of wanton misconduct within the meaning of the Indiana Guest Statute;

(2) whether the damages awarded were excessive;

(3) whether the trial court erred in refusing to give an instruction defining the term "prima facie";

(4) whether the trial court erred by instructing the jury that Debra's conduct was to be judged by an adult standard of care;

(5) whether the trial court erred in permitting evidence concerning Leslie's impecunious financial condition; and

(6) whether the trial court erred in admitting conclusory statements by Leslie into evidence.

The touchstone to be employed in determining liability under the guest statute is well settled. In order to be guilty of wanton misconduct a host-driver must: (1) be conscious of his misconduct; (2) be motivated by a reckless indifference for the safety of his guest; and (3) he must do so knowing his conduct subjects his guest to a probability of injury. Gibson v. Estate of Holderbaum (1980), Ind.App., 413 N.E.2d 614; Brown v. Saucerman (1957), 237 Ind. 598, 145 N.E.2d 898.

There was testimony that Debra had traversed this particular route on several occasions prior to the mishap. This gives rise to an inference that she was acquainted with the narrowness of the road as well as the fact that it was lined with trees. In light of her familiarity with the vicinity where the accident occurred the jury was entitled to find that once Debra accelerated to 50 mph and passed the Wilson vehicle her resumption of a weaving pattern across the road constituted a consciousness of misconduct.

Reckless indifference is the mental element of a guest statute case and it is commonly shown by the host-driver's disregard

Page 921

of his passenger's complaints or warnings about his driving. Jones v. Motley et al. (1974), 160 Ind.App. 21, 309 N.E.2d 173; Schwing v. McKibbin (1970), 148 Ind.App. 222, 264 N.E.2d 629. Prior to overtaking the Wilson automobile Debra began swerving her car along a winding portion of the road. She was angry at Wilson's slow rate of speed and conducted about eight weaves while trailing him. Frightened, Leslie pleaded with Debra to stop swaying the car but she ignored those protestations remarking that she knew what she was doing and had everything under control. To this rebuff Leslie replied, "Well, then, I will shut my eyes, I won't see what you're doing." From this evidence an inference can be drawn that Debra's only thought upon passing Wilson at a high rate of speed was to vent her anger by swerving again, thus exhibiting reckless indifference to the consequences of her conduct.

The final element requires proof that the host had knowledge of the danger confronting the guest. If circumstances are such that reasonable men would know and conclude their conduct entailed a probability of injury, then the host is chargeable with such knowledge. Sili v. Vinnedge (1979), Ind.App., 393 N.E.2d 251. Where the host, after overtaking another car at 50 mph in a 15 mph zone, zigzags several times across a narrow road abutted by trees she is charged with knowledge that her conduct involves a high probability of injury, e. g., losing control of her car and caroming into a tree.

Defendants also assail the judgment below on the grounds that an award of $80,000 to Leslie was excessive. One prong of their challenge is there was insufficient evidence from which the jury could determine that Leslie would incur $5,000 worth of medical expenses for future treatment of her injuries. In addition they claim that the remainder of her award was either motivated by prejudice or else based on conjecture.

Implicit throughout their attack is the erroneous assumption that the jury could itemize these damages in the verdict. The proposed verdict for Leslie was upon a printed form with the identifying information typed. It required an insertion of the total general damages awarded her and the signature of the foreman. The jury filled in the total amount of its award in Leslie's favor. ($80,000). Following this sum it included an asterisk. At the bottom of the form, beneath the signature of the foreman and the date of the verdict, it repeated the asterisk and in longhand made a segregation of the total: "$75,000 for suffering and aggrieved condition of Miss Talbott; $5,000 for future medical services."

It has been decided that when a jury attempts to interpolate something in a verdict about which the jury has no concern, such interpolated matter is mere surplusage and not...

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26 practice notes
  • 484 N.E.2d 967 (Ind.App. 3 Dist. 1985), 3884A231, Mitchell by Mitchell v. Turner
    • United States
    • Indiana Court of Appeals of Indiana
    • 4 November 1985
    ...an instruction correctly states the law. Sausaman v. Leininger (1957), 237 Ind. 508, 146 N.E.2d 414; Barrow v. Talbott (1981), Ind.App., 417 N.E.2d 917, 923-24; Fuller v. Wiles (1972), 151 Ind.App. 417, 280 N.E.2d 59. It must be noted, however, that a trial court can refuse a tendered instr......
  • 869 P.2d 470 (Alaska 1994), S-4997, Blumenshine v. Baptiste
    • United States
    • Alaska Supreme Court of Alaska
    • 4 March 1994
    ...of this contention, Blumenshine cites instances in which courts have disregarded extraneous notes from the jury. Barrow v. Talbott, 417 N.E.2d 917, 921 (Ind.App.1981) (disregarding a note that stated that portion of award was for future medical expenses); Gilmore v. Control Data Corp., 442 ......
  • 421 N.E.2d 672 (Ind.App. 1 Dist. 1981), 1-1180A330, Hershberger v. Brooker
    • United States
    • Indiana Court of Appeals of Indiana
    • 9 June 1981
    ...The third paragraph of the instruction defining wanton misconduct is a correct statement of the law. Barrow v. Talbott, (1981) Ind.App., 417 N.E.2d 917 (trans. pending); Gibson v. Estate of Holderbaum, Page 680 (1980) Ind.App., 413 N.E.2d 614 (transfer pending). In Gibson, at 615-16, Judge ......
  • 422 N.E.2d 302 (Ind.App. 1 Dist. 1981), 1-780A179, English Coal Co., Inc. v. Durcholz
    • United States
    • Indiana Court of Appeals of Indiana
    • 9 June 1981
    ...We are bound by a very strict standard of review on questions of inadequate or excessive damages, Barrow v. Talbott, (1981) Ind.App., 417 N.E.2d 917. We may not reverse a damage award if it is within the scope of evidence before the trial court, and we shall not reweigh the evidence or judg......
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26 cases
  • 484 N.E.2d 967 (Ind.App. 3 Dist. 1985), 3884A231, Mitchell by Mitchell v. Turner
    • United States
    • Indiana Court of Appeals of Indiana
    • 4 November 1985
    ...an instruction correctly states the law. Sausaman v. Leininger (1957), 237 Ind. 508, 146 N.E.2d 414; Barrow v. Talbott (1981), Ind.App., 417 N.E.2d 917, 923-24; Fuller v. Wiles (1972), 151 Ind.App. 417, 280 N.E.2d 59. It must be noted, however, that a trial court can refuse a tendered instr......
  • 869 P.2d 470 (Alaska 1994), S-4997, Blumenshine v. Baptiste
    • United States
    • Alaska Supreme Court of Alaska
    • 4 March 1994
    ...of this contention, Blumenshine cites instances in which courts have disregarded extraneous notes from the jury. Barrow v. Talbott, 417 N.E.2d 917, 921 (Ind.App.1981) (disregarding a note that stated that portion of award was for future medical expenses); Gilmore v. Control Data Corp., 442 ......
  • 421 N.E.2d 672 (Ind.App. 1 Dist. 1981), 1-1180A330, Hershberger v. Brooker
    • United States
    • Indiana Court of Appeals of Indiana
    • 9 June 1981
    ...The third paragraph of the instruction defining wanton misconduct is a correct statement of the law. Barrow v. Talbott, (1981) Ind.App., 417 N.E.2d 917 (trans. pending); Gibson v. Estate of Holderbaum, Page 680 (1980) Ind.App., 413 N.E.2d 614 (transfer pending). In Gibson, at 615-16, Judge ......
  • 422 N.E.2d 302 (Ind.App. 1 Dist. 1981), 1-780A179, English Coal Co., Inc. v. Durcholz
    • United States
    • Indiana Court of Appeals of Indiana
    • 9 June 1981
    ...We are bound by a very strict standard of review on questions of inadequate or excessive damages, Barrow v. Talbott, (1981) Ind.App., 417 N.E.2d 917. We may not reverse a damage award if it is within the scope of evidence before the trial court, and we shall not reweigh the evidence or judg......
  • Request a trial to view additional results