Antcliff v. Datzman

• Decision Date: 03 June 1982
• Docket Number: No. 3-1281A312,3-1281A312
• Citation: 436 N.E.2d 114
• Parties: Scott ANTCLIFF, Appellant (Defendant Below), v. Joseph Raymond DATZMAN, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 114

436 N.E.2d 114

Scott ANTCLIFF, Appellant (Defendant Below), v. Joseph Raymond DATZMAN, Appellee (Plaintiff Below).

No. 3-1281A312.

Court of Appeals of Indiana, Third District.

June 3, 1982.

Edward P. Dumas, Dumas, Moriarty & Dumas, Rensselaer, for appellant.

Michael J. Stapleton, Jeffrey J. Newell, Ball, Eggleston, Bumbleburg & McBride, Lafayette, for appellee.

HOFFMAN, Presiding Judge.

This appeal arises from a jury verdict which awarded Joseph Datzman $50,000 in an action for damages which resulted from an automobile accident in which Datzman was a passenger in a vehicle owned and operated by Scott Antcliff. Datzman brought the action alleging that he was a guest in Antcliff's vehicle and that Antcliff was guilty of willful or wanton misconduct which proximately caused Datzman's injuries.

Antcliff has appealed this decision and presents the following issues for review:

(1) whether the trial court erred in failing to admonish the jury to disregard remarks made by Datzman regarding insurance;

(2) whether the trial court erred in denying Antcliff's motion for judgment on the evidence;

(3) whether the trial court erred in refusing to give Antcliff's tendered Instruction No. 5;

(4) whether the trial court erred in refusing to give Antcliff's tendered Instruction No. 6;

(5) whether the trial court erred in giving Datzman's tendered Instruction No. 7;

(6) whether the trial court erred in refusing to give Antcliff's tendered Instruction No. 8;

(7) whether the trial court erred in allowing testimony as to a traffic conviction of Antcliff;

(8) whether the trial court erred in allowing Datzman to testify regarding surgical procedures used on him;

(9) whether the trial court abused its discretion during voir dire examination of the jury panel; and

(10) whether the trial court erred in giving Datzman's tendered Instruction No. 8 and refusing to give Antcliff's tendered Instruction No. 2.

Datzman and Antcliff had been friends since they met while in the seventh grade. At the time of the accident, both were 20 years old, and they were home from their respective colleges to spend the Christmas holidays with their families. On the afternoon of December 22, 1976, the parties decided to go to a Christmas open house at Soup's, a tavern in Iroquois, Illinois. On the way, they stopped at a grocery store in Watseka, Illinois and purchased an eight pack of 7 oz. beers. Datzman drank two of the beers and Antcliff drank three.

After arriving at Soup's, each had two more beers before the open house began. The open house included a buffet with turkey and all the trimmings. For the next two hours, the parties ate from the buffet and drank 2-3 gin and tonics. When the other friends they'd expected to see at Soup's failed to appear, the two decided to go to the home of some friends in Brook, Indiana. They left Soup's between 7:30 and 8:00 P.M. It was dark and snowing. As they passed through a curve in the blacktop road, Antcliff lost control; the car left the roadway; and they crashed.

Both were taken to the hospital in Brook, Indiana and Datzman was transferred to a hospital in Lafayette, Indiana for further treatment. At the time of his admission to the hospital in Lafayette, tests revealed that Datzman had a blood alcohol content of .202. Antcliff was cited by the investigating police officer for driving while intoxicated and subsequently pled guilty.

The first issue Antcliff raises is whether the trial court erred in failing to admonish the jury to disregard remarks made by Datzman regarding insurance.

During cross-examination of Datzman, defense counsel was asking questions in order to lay a foundation for the introduction of an exhibit which was a transcript of prior statements made by Datzman. Defense counsel was confronting Datzman with a prior statement which was inconsistent with his testimony at trial when the statement at issue was elicited.

"Q You have testified as to the speed of the Antcliff vehicle immediately before the accident, haven't you, Ray?

"A Yes.

"Q And you have tstified (sic) as to the character of Scott's driving immediately before the accident, haven't you?

"A Yes.

"Q I'll ask you, Ray, on January 27th, 1977, at approximately one p. m. while you were in Lafayette Home Hospital, if you had a telephone conversation with a Pat Fitzgerald and at that time you told Fitzgerald these words, or these words in substance: 'I do not know how fast Scott was going before the accident.' Did you say those words?

"A I really don't remember, I was in the hospital.

"Q All right. January 27, 1977, was thirty-six days after the accident, right?

"A Yes, it would be about thirty-six, I guess.

"Q And I'll ask you, on January 27, 1977, while you were in Lafayette Home Hospital you had a telephone conversation with Pat Fitzgerald, and at that time and at that place you told Fitzgerald you did not remember if Scott was driving within reason before the accident.

MR. STAPLETON: Wait a minute.

"Q Did you stay (sic) those words?

MR. STAPLETON: Wait a minute, excuse me-

THE COURT: That question has been already answered.

MR. EDWARD P. DUMAS: A different question, Judge.

MR. THOMAS B. DUMAS: A different question, Judge.

THE COURT: No argument, please.

"Q And I'll ask you this question, Mr. Datzman. If on January 27th, 1977, while you were in Lafayette Home Hospital you had a telephone conversation with a Pat Fitzgerald and you, and Mr. Fitzgerald asked you this question:

'Was Scott driving decent before the accident or was he hotrodding it?' And your answer to that question was, 'I don't know how he was driving.'

MR. STAPLETON: Your Honor, excuse me.

"Q Was that-I'm not finished-was that question asked of you and did you make that response?

MR. STAPLETON: Never mind, I'll cover it on re-direct.

"A I don't remember, excuse me, I don't remember making that, I was in the hospital at the time and I remember some-

"Q Well, now, wait a minute, Ray. You either-

THE COURT: Well, just a minute, let him answer.

MR. EDWARD P. DUMAS: Well, I move to strike it as not responsive to the question. I asked him if he-

THE COURT: He hasn't said anything yet. Proceed.

"A I was trying, trying to say I remember some, some insurance guy calling me on the telephone-

MR. EDWARD P. DUMAS: At this time we will approach the Bench, Judge. May we approach the Bench, please?

THE COURT: We will excuse the jury under the same admonitions as before. Do not discuss the case in the jury room."

Record at 392-395.

Antcliff requested that the court admonish the jury to disregard any remarks made concerning insurance. He also requested a mistrial. The trial court denied both requests.

Not all mentions of insurance constitute reversible error. This Court dealt with a similar situation in the case of Herman v. Ferrell (1971), 150 Ind.App. 384, at 391, 276 N.E.2d 858, at 863, wherein it was stated:

"It is within the trial court's discretion to withdraw the submission of a cause from the jury where insurance has been interjected. If the trial court does not admonish the jury regarding the interjection of insurance during the trial and the admonishment is deemed necessary by one of the parties, an instruction should be tendered."

In the case at hand as in Herman, no such instruction was tendered by the defendant.

It is clear from the record that Datzman's mention of "some insurance guy" was not solicited deliberately, nor was it made in bad faith. No abuse of the trial court's discretion has been shown. Thus, the trial court's decision to deny Antcliff's requests for an admonition and a mistrial was not reversible error.

Antcliff next asserts that the trial court erred in denying his motion for judgment on the evidence. He argues that the evidence showed that Datzman voluntarily incurred the risk as a matter of law.

Judgment on the evidence should be entered only when there is no substantial evidence or reasonable inference derived therefrom supporting an essential element of the claim. On a motion for judgment on the evidence, the evidence must be viewed in the light most favorable to the nonmoving party and if the evidence is conflicting such that reasonable minds might differ as to the conclusion to be drawn therefrom, judgment on the evidence is improper. Clouse v. Fielder (1982), Ind.App., 431 N.E.2d 148; P-M Gas & Wash Co., Inc. v. Smith (1978), Ind.App., 383 N.E.2d 357.

Datzman testified that when leaving Soup's, Antcliff appeared to be the same as when they'd arrived. Antcliff did not appear to Datzman to be intoxicated. He seemed to be in control of himself; he walked normally; and his speech was not slurred. According to Datzman's testimony, Antcliff began to speed up just before reaching the curve, at which time Datzman asked him to slow down. One could infer from this evidence that Datzman did not appreciate how dangerous the situation was until it was too late to abandon his course of action.

The incurring of a risk must be voluntary.

"If the continued exposure to a known risk of injury is due to a lack of reasonable opportunity to escape after the danger is appreciated, or if continuance of exposure to the danger is the result of influence, circumstances, or surroundings, which are a real inducement to continue, the doctrine does not apply, since the exposure is not in a true sense voluntary."

Ridgway v. Yenny; Ridgway v. Lombardo (1944), 223 Ind. 16, at 22, 57 N.E.2d 581, at 583.

Whether or not Datzman incurred the risk in the situation he was presented with was a question upon which reasonable men might disagree. Therefore, it was properly left to the determination of the jury, and the trial court did not err in denying Antcliff's motion for judgment on the evidence.

Antcliff next alleges the trial court erred in refusing to give his tendered Instruction No. 5. In reviewing a trial court's refusal of a tendered instruction, the appellate court must determine whether the instruction correctly states the law,...