Caton v. Hardamon, 73-1425.

• Decision Date: 06 May 1974
• Docket Number: No. 73-1425.,73-1425.
• Citation: 496 F.2d 6
• Parties: Burman D. CATON and Dorothy Caton, Appellants, v. Donald L. HARDAMON, Administrator of Estate of Miles W. Payne, Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

496 F.2d 6 (1974)

Burman D. CATON and Dorothy Caton, Appellants, v. Donald L. HARDAMON, Administrator of Estate of Miles W. Payne, Appellee.

No. 73-1425.

United States Court of Appeals, Seventh Circuit.

Heard February 13, 1974.

Decided May 6, 1974.

Donald F. Foley, Indianapolis, Ind., for appellants.

Grace M. Curry, Indianapolis, Ind., for appellee.

Before HASTINGS, Senior Circuit Judge, and CUMMINGS and STEVENS, Circuit Judges.

CUMMINGS, Circuit Judge.

Plaintiffs, a West Virginia married couple, filed two diversity suits in the court below complaining of an Indiana defendant, Miles Payne. They alleged that in August 1969, Payne negligently drove his 1963 Buick automobile into plaintiffs' 1967 Yamaha motorcycle, causing the husband extensive injuries and damaging his motorcycle. The husband sought $50,000 damages and the wife sought $15,000 damages. After Payne's death, the present defendant was substituted as his administrator. At a consolidated trial the jury returned verdicts for defendant and judgments were entered thereon on the same date. In accordance with his customary practice, the district judge permitted the exhibits to be taken into the jury room during their deliberations. Exhibit A contained a prior inconsistent statement of a non-party witness admitted into evidence without objection. The sole question on appeal is whether the district court erred in allowing Exhibit A to be taken to the jury room for consideration of the jurors during their deliberations. We hold that this was permissible and therefore affirm.

During the jury trial, Randy Love was an occurrence witness for the plaintiffs. Plaintiff Burman Caton testified that he entered the intersection as the traffic light changed from green to yellow. Two eyewitnesses testified that he entered the intersection on the red light. A third eyewitness, Randy Love, gave trial testimony that would support an inference that Caton entered the intersection before the change from yellow to red. During cross-examination of Love, defense counsel offered in evidence an inconsistent statement that Love had signed ten days after the accident corroborating the other two eyewitness' testimony that Caton had entered the intersection on the red light. Plaintiffs' counsel initially objected to the admission of the statement because defendant's counsel had not laid a proper foundation therefor. However, after defense counsel laid the usual foundation in order to impeach the witness, his prior statement was admitted without objection and marked as defendant's Exhibit A.

Twenty-six exhibits were admitted into evidence and were all sent to the jury room. Twenty-one of these exhibits were plaintiffs'; the remainder were defendant's, including the controversial Exhibit A.

Love's statement was received in evidence as a prior inconsistent statement for the purpose of impeaching his credibility. The following instruction was given by the district judge with respect to impeaching statements:

"The credibility of a witness may be impeached by proof that he made statements, either written or oral, out of court contrary to, and inconsistent with, what he testifies during the trial concerning matters material and relevant to the issues.

"If you find any witness has thus been impeached, you have the right to reject all the testimony of such witness, except in so far as the witness has been corroborated by other credible evidence in these cases.

"While it is proper for you to reject all of the testimony of a witness who has been impeached, yet I instruct you it would not be proper for you to consider such impeaching testimony as either tending to prove or disprove any of the material allegations of plaintiffs\' complaints or defendant\'s answers, but such impeaching evidence can only be considered by you in determining the credibility of the witness. However, it is for you to determine whether the witness has in fact been impeached before you have the right to reject all or any part of the testimony of such witness."

Plaintiffs do not challenge this instruction but only assert that the district judge should not have permitted the impeaching Exhibit A to go to the jury room.

In a recent Indiana criminal case, the Supreme Court of Indiana held that it was error to allow the jury to take a witness' prior inconsistent statement to the jury room. Thomas v. State, 289 N.E.2d 508 (1972). If Thomas is binding here, we will of course follow it. However, we are more persuaded by Chief Justice Arterburn's dissent:

"I do not think we should be too restrictive or concerned with what the jury receives in the jury room for consideration, during its deliberations, so long as it is competent evidence. The fear that one part of evidence will be overly emphasized is more than counterbalanced by the fact that the memory of the jurymen may not be sufficient to retain details as to exhibits or testimony. Why should a juryman be required to rely upon memory, which can be erroneous and which can be corrected by the actual facts. We are seeking the truth after all." (289 N.E.2d at 510.)

Plaintiffs contend that under Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, the district...