Stauffer v. Lothamer

• Decision Date: 16 April 1981
• Docket Number: No. 3-1177A297,3-1177A297
• Citation: 419 N.E.2d 203
• Parties: Gary L. STAUFFER, Defendant-Appellant, v. Daniel L. LOTHAMER, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 203

419 N.E.2d 203

Gary L. STAUFFER, Defendant-Appellant, v. Daniel L. LOTHAMER, Plaintiff-Appellee.

No. 3-1177A297.

Court of Appeals of Indiana, Fourth District.

April 16, 1981.

Don W. Wyneken & Ralph R. Blume, Blume, Wyneken & Bullman, Paul C. Raver, Sr., Raver & Federoff, Fort Wayne, for defendant-appellant.

Arthur G. Surguine and Thomas C. Ewing, Hunt, Suedhoff, Borror, Eilbacher & Lee, Fort Wayne, for plaintiff-appellee.

MILLER, Judge.

The instant appeal presents a situation in which the driver of an automobile, defendant-appellant Gary L. Stauffer, contends there was insufficient evidence of "wanton or wilful misconduct" under Indiana's guest statute, Ind.Code 9-3-3-1, supporting a jury verdict in favor of his passenger, plaintiff-appellee Daniel L. Lothamer, in the amount of $59,000 for injuries which Lothamer sustained in a one-car collision which occurred in Fort Wayne, Indiana. In addition, numerous other issues are presented for our review, among them that the damages awarded were excessive, certain evidence was improperly admitted, instructions improperly given and refused, and the jury's verdict was invalid due to alleged juror coercion and statements purportedly made to jurors by the bailiff. We affirm.

The basic facts in support of the judgment entered on the jury verdict may be summarized as follows:

On June 21, 1974, after working from 11 to 13 hours that day as an apprentice electrician, Stauffer, 19 or 20, went with Lothamer, 22, who shared an apartment with him in Woodburn, Indiana, to a tavern in Ohio, where they consumed two pitchers of beer with another friend in the course of one or two hours. Each person drank approximately two to three beers. Thereafter, Stauffer and Lothamer went to their apartment where they remained until ten or eleven P.M., at which time they traveled to a second tavern, this time in Fort Wayne. Although Lothamer had been reluctant to go to Fort Wayne that evening, Stauffer had persuaded him to go to the tavern, where they drank two to three more glasses of beer (within an hour or an hour and one-half) before proceeding to another Fort Wayne tavern. In the course of several more hours of drinking by both parties, Stauffer drank approximately two or three beers. When they departed at approximately 1:15 or 2:00 in the morning, Stauffer had consumed a little more beer than had Lothamer.

After leaving the third tavern, Stauffer drove his car onto nearby Jefferson Street, which is a one-way street headed east in Fort Wayne. At that time, the streets were still wet, since it had been raining earlier in the evening. Stauffer did not recall whether he stopped at various stoplights along the way. He stated that although he was not intoxicated as a result of the night of drinking, he was "feeling the effects" of the alcohol. In addition, Lothamer testified that before reaching Jefferson, Stauffer began yelling, gesturing and waving his fist at the driver of another car which pulled around Stauffer's vehicle, at which time Lothamer asked him to "cool it" because "I didn't want to get in no hassels."

An independent witness to the entire accident, one John McIntosh, stated that Stauffer turned onto Jefferson from a "straight-through" lane, rather than by the appropriate left-turn lane, and that when he first observed the car, both Stauffer and Lothamer were talking and laughing. According to McIntosh, Stauffer's car stopped at a red light and then, after a racing of engines, "darted across the road," spinning his rear wheels on the wet pavement and "jumping ahead in front of me." Stauffer arrived at the next stoplight on Jefferson somewhat earlier than McIntosh and again, according to that witness, "floored it" so that McIntosh "could hear his back tires spinning." As they drove down Jefferson, Stauffer remained in the far right lane while approaching a sharp curve where the accident occurred. At that approximate point on Jefferson, there are three lanes, two of which curve sharply to the right, while the far left lane proceeds in a different direction. Lothamer testified that as they approached the curve, he asked Stauffer to slow down because the curve was bad. Stauffer's car was traveling about 55 miles per hour, while the posted speed limit in the vicinity is 35. In this regard, McIntosh stated that he reduced the speed of his own vehicle while approaching the curve behind Stauffer, because "I couldn't make it at 35 or 40 miles an hour when it ... (was) wet." McIntosh, like Stauffer, was familiar with the "mean curve."

Significantly, Lothamer testified that when he asked Stauffer to slow down, about a block before the curve, the response was that "for a second or so he (Stauffer) hit the gas pedal and then instantly after that he hit the brake." (Emphasis added.) He did not remember whether Stauffer had hit the brakes "fast or slow." Stauffer stated he had applied his brakes hard, because he believed his car would hit another vehicle (which it appears was in fact parked alongside the road.) Lothamer further stated that as they entered the curve, he grabbed the dashboard because he saw lights coming toward him, ¹ and then closed his eyes.

McIntosh stated he did not see Stauffer's brake lights go on as the latter's car approached the curve. According to McIntosh, Stauffer still had control of his car when he hit a puddle of water in the curve, "but after he hit the water ... he went straight across, right through the water directly across the lanes then hit the bunkment (sic)." Stauffer's brake lights came on when his car was in the water. McIntosh also noted the puddle of rainwater extended into the left-hand lane, where McIntosh was traveling behind Stauffer, and that the Stauffer vehicle "hit so hard the water flew over the car back onto my car." He testified, "(a)t that time he hit it harder and went over, all the way across the road into my lane and hit the curbing and therefore lost control." The Stauffer car then bounced across to the right curb and lifted off the ground two to three feet, apparently turning as it traveled in the air, and struck a utility pole on the passenger's side, where Lothamer was seated. The vehicle came to rest facing the opposite direction from which Stauffer had been driving with the utility pole on top of the car.

McIntosh approached the car after witnessing the accident, and observed that Lothamer was "jammed" in his seat and was screaming. Stauffer, who was in the back seat, was on his knees and had a pocket knife in his mouth, which he told McIntosh was a cigar. McIntosh could smell alcohol of some kind on Stauffer. Lothamer was removed from the car through the windshield after special crews were called in to separate the car from the utility pole. He suffered numerous injuries, including three fractures in his pelvis, a fractured arm, and a complete trans-section of the urethra, a life-threatening injury under the circumstances involving immediate surgery and the probability that Lothamer must regularly visit a doctor's office for urethral dilations throughout the rest of his life.

Following the accident and his subsequent hospitalizations, Lothamer initiated the instant litigation by filing his complaint on June 5, 1975 alleging damages of some $150,000 including lost income, medical expenses, and permanent physical impairment because of Stauffer's wilful and wanton misconduct in the operation of his car resulting in the accident at issue. ² As noted above, a jury awarded damages of $59,000 with respect to which the trial court entered its judgment on May 11, 1977.

On appeal, the following issues are presented by Stauffer for our review:

1) There was no probative evidence to prove he acted wilfully or wantonly in driving his vehicle so as to make him liable to his passenger Lothamer under the appropriate guest statute;

2) Evidence of statements made by the witness McIntosh to the investigating police officer were improperly admitted since it was hearsay;

3) Various rulings on instructions by the trial court were in error;

4) The verdict of the jury was invalid due to alleged juror coercion and statements purportedly made to a juror by the bailiff; and

5) The damage award was excessive.

We discuss these issues infra in the order they were considered by the parties.

I.

The essential substantive issue presented for our consideration by Stauffer involves the application of IC 9-3-3-1, the so-called "guest statute" which the parties agree is controlling on the facts of the instant litigation. That statute provides:

"The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, while being transported without payment therefor, in or upon such motor vehicle resulting from the operation thereof, unless such injuries or death are caused by the wanton or wilful misconduct of such operator, owner, or person responsible for the operation of such motor vehicle." (Emphasis added.)

According to Stauffer, the facts fail to present any probative evidence of either "wanton or wilful misconduct" supporting the jury's determination he is liable to Lothamer. We disagree.

In applying such statute, we first observe several general principles which have evolved out of the many Indiana cases in this area of the law. Initially, it is significant that a Court assessing a jury verdict on appeal appropriately looks beyond the facts and circumstances of "the immediate time and place of the accident" to consider the significance of such facts with reference to the "complete course of conduct or misconduct of the host driver preceding the accident." Richey v. Sheaks, (1967) 141 Ind.App. 423, 434, 228 N.E.2d 429, 435; and see Sili v. Vinnedge, (1979) Ind.App., 393 N.E.2d 251; Fielitz v. Allred, (1977) Ind.App., 364 N.E.2d 786; Tutterrow v. Brookshire, (1972) 152 Ind.App. 471, 284 N.E.2d 87; Mazza v. Kelly, (1970) 147 Ind.App. 33, ...