Anderson v. Taylor, No. 172A55

• Docket Nº: No. 172A55
• Citation: 289 N.E.2d 781, 154 Ind.App. 217
• Case Date: November 27, 1972
• Court: Court of Appeals of Indiana

Page 781

289 N.E.2d 781 154 Ind.App. 217 William L. ANDERSON, by his next friend, Edwin Anderson,
Plaintiff-Appellant,
v.
Reed L. TAYLOR, Defendant-Appellee.
Edwin ANDERSON, Plaintiff-Appellant,
v.
Reed L. TAYLOR, Defendant-Appellee. No. 172A55. Court of Appeals of Indiana, First District. Nov. 27, 1972.

Page 783

Goltra, Cline, King & Beck, Columbus, for plaintiffs-appellants.

[154 Ind.App. 218] Yarling, Winter, Tunnell & Lamb, Indianapolis, Joseph O. Carson, Seymour, for defendant-appellee.

LOWDERMILK, Judge.

These actions were consolidated in the trial court and tried there and are now being appealed as consolidated actions. The actions were (1) for personal injuries to a minor guest passenger, William L. Anderson, and (2) the action by the father for the loss of his minor son's services and medical expenses incurred by the father, Edwin Anderson. From an adverse judgment in each case the plaintiffs take this consolidated appeal.

The events which gave rise to this lawsuit commenced about 7:00 o'clock in the evening on October 10, 1969. At that time, the defendant-appellee, Reed L. Taylor, was driving his father's Mustang automobile. He was in the company of another boy and they picked up the plaintiff-appellant, William L. Anderson, at the latter's home. The plaintiff was a boy fifteen years of age and the defendant was sixteen years of age and had been licensed to drive for only about three weeks.

It was a dark, rainy night and after the boys left the plaintiff's home, the defendant drove to a restaurant where they met a girl who was going to accompany the defendant-appellee and the third boy to a drive-in movie. The girl had a car of her own and had to run an errand before going to the movie. She left the restaurant with the third boy in her car and the defendant-appellee and plaintiff-appellant, William L. Anderson, followed them in the Mustang with the defendant driving. After completing the errand, both cars started back to the restaurant with the defendant-appellee and the plaintiff-appellant following the girl's car. Some other traffic got between the two cars at a stop sign so that the girl in her car finally got several blocks ahead of the defendant-appellee's Mustang.

While both cars were traveling north on Lovers Lane in the City of Columbus, Indiana, a street with a posted thirty miles per hour speed zone, the defendant, in an attempt to [154 Ind.App. 219] catch up with the girl's car, suddenly and rapidly accelerated his Mustang automobile and passed other traffic and drove up the rain slicked street at a speed in excess of sixty miles per hour. The defendant maintained this rate of speed for several blocks until he was about one hundred twenty feet from the intersection of Lovers Lane and Tenth Street. At this point, he quickly down-shifted the manual transmission of his Mustang automobile and at the same time slammed on his brakes. This caused the Mustang to spin violently off the road into a tree, thereby seriously injuring the plaintiff.

The cases were tried to a jury which returned its verdict finding for the defendant-appellee in each case. Judgment was rendered accordingly.

Page 784

Thereafter plaintiffs-appellants timely filed their motion to correct errors which the court overruled.

Plaintiffs-appellants have grouped specifications 2, 3, 4, and 5 of their motion to correct errors together for purposes of argument and we shall treat them first in this opinion. The errors assigned are as follows, to-wit:

'2. A denial of a fair trial to the plaintiffs because of irregularity in the proceedings due to the confusion and misunderstanding of the members of the jury as to the meaning of legal terms and the applicable law governing said case.

'(a) In support of this ground the Affidavit of Harold H. McConnell, one of the plaintiffs' attorneys, is attached, together with Affidavits of various jurors.

'3. The Court failed to instruct the jury on all the issues of the case as required by Trial Rule 51 of the Indiana Rules of Procedure in that the jury was confused and under the mistaken opinion that it was necessary that the defendant 'intended' or 'wanted' to injure plaintiff, William L. Anderson, before plaintiffs could recover.

'4. A denial of a fair trial and irregularity in the proceedings in that when the jury requested a dictionary during its deliberations, the Court should have inquired of the jury the reasons for such request and thereafter properly instructed the jury on the meaning of the legal terms confusing said jury.

[154 Ind.App. 220] '5. Said proceedings violated the 14th Amendment to the United States Constitution and Article 1, Section 12, of the Constitution of the State of Indiana in that the refusal of the court to inquire of the jury their reasons for requesting a dictionary; to answer any questions they may have had which prompted such request; and to clarify the confusion existing in the minds of the jury as to the meaning of legal terms, resulted in a denial of due process to plaintiffs, since the results of said jury deliberations would have been different if the questions of said jurors had been properly answered.'

After the jury was discharged, plaintiffs' counsel privately questioned several jurors concerning their verdict. These jurors expressed confusion over the meaning of the word 'wanton' and revealed that they had asked the bailiff for a dictionary. The bailiff informed the judge of the request, whereupon the judge instructed the bailee to inform the jury that it could not have a dictionary, which instruction was carried out by the bailiff. None of these proceedings appears in the record until the filing of the plaintiffs' motion to correct errors.

Some few days after the trial plaintiffs-appellants' attorney, in company with the local Prosecuting Attorney, secured the affidavits of eight of the jurors. Plaintiffs-appellants' attorney also filed his affidavit concerning his conversations with the members of the panel after the trial.

Specifications 2 and 3 of appellants' motion to correct errors are an attempt to impeach the verdict rendered at trial through the affidavits of eight jurors. The law has been well settled for many years that a juror cannot impeach...