Barker v. Cole, 3-677A157
| Citation | 16 A.L.R. 4th 223,396 N.E.2d 964 |
| Decision Date | 29 November 1979 |
| Docket Number | No. 3-677A157,3-677A157 |
| Parties | Darrell BARKER, Defendant-Appellant, v. Robert D. COLE, Plaintiff-Appellee, B & B Industries, Inc., William Watkins and James Cornell, Defendants-Appellees. |
| Court | Court of Appeals of Indiana |
John E. Hughes, Hoeppner, Wagner & Evans, Valparaiso, for defendant-appellant.
Leo J. Clifford, William G. Conover, Valparaiso, for defendants-appellees.
On December 6, 1972, at approximately six o'clock a. m., William Watkins, an employee of B & B Industries, Inc., was driving a semi-tractor trailer east on U.S. Route 30. Watkins was traveling in the driving lane at approximately 60 miles per hour. 1 He checked the highway in front of him and could see no traffic. He then glanced skyward for two to three seconds to check the weather. When he looked back at the road a Ford Torino was directly in front of him, so close that the truck's headlights illuminated the interior of the Torino. Watkins swerved to avoid the Torino but was unable to do so, striking it in the rear. After the collision the tractor-trailer crossed the westbound lanes of U.S. 30 and struck one or two trees located on the north berm of the westbound lanes. The Torino, driven by appellant Darrell Barker, traveled across the median separating the east and westbound lanes and struck a van traveling west, driven by appellee Robert D. Cole, head on. Subsequently, James Cornell's vehicle, also traveling west, struck the wreckage of the Torino and the van.
Cole brought suit against Watkins, B & B Industries, Barker and Cornell to recover damages for injuries suffered in this accident. The jury returned a verdict against all defendants except James Cornell and awarded Cole $50,000 damages. Barker appeals raising the following issues:
1. Whether the trial court erred in refusing to grant a hearing to determine the bias of a juror;
2. whether the trial court erred in instructing the jury to consider permanent injury, past and future medical expenses, past and future loss of earnings and future pain and suffering when the evidence did not support these elements of damages;
3. whether the trial court erred in admitting the testimony of James Cornell concerning his wages;
4. whether the verdict was excessive;
5. whether there was sufficient evidence to sustain a finding of negligence against Barker;
6. whether the trial court erred in refusing to reduce the judgment in the amount prepaid by Watkins and B & B Industries;
7. whether the trial court erred in refusing to reduce the judgment in the amount paid by Watkins and B & B Industries under a loan agreement and covenant not to execute;
8. whether the trial court erred in allowing the jury to take the exhibits into the jury room; and
9. whether the trial court erred in permitting opposing counsel to ask a question in cross-examination which assumed the existence of facts not in evidence.
During voir dire of the jury, counsel asked the prospective jurors if any of them knew any of the parties. Juror Arthur Laederach, later elected foreman, answered that he knew Cole because Cole had moved furniture for him about fifteen (15) years prior to trial. Laederach stated that theirs was a " nodding acquaintance." 2
Four (4) days after the verdict was rendered Barker discovered that Laederach's daughter was married to Cole's brother. This information was brought to the trial court's attention in Barker's motion to correct errors. Barker asserts on appeal that the court should have held a hearing to determine the bias of Laederach. We agree.
In Barnes v. State (1975), 263 Ind. 320, 330 N.E.2d 743, a juror on voir dire denied having relatives on the prosecutor's staff. In fact, the juror's wife's second cousin was a member of the staff with some connection with the case. It was held that this inaccurate response presented a possibility of bias. The cause was remanded to the trial court to determine whether the juror had been aware of the relationship either during voir dire or thereafter prior to verdict and whether the appellant or his attorney were aware of the relationship prior to the verdict. The possibility of bias was sufficient to require that appellant be afforded an opportunity to explore the juror's prejudices so as to challenge for cause if bias existed.
In Stevens v. State (1976), 265 Ind. 396, 354 N.E.2d 727, the court held that the trial court should declare a mistrial if bias is found to be present.
In this case Laederach failed to disclose a personal relationship with the plaintiff Cole when specifically asked how he came to know Cole. The trial court, after discovery of a relationship which presented a possibility of bias, should have held a hearing to determine whether Laederach was aware of this relationship at any time prior to verdict. We must therefore remand this cause for such an evidentiary hearing. The court should allow Barker to challenge Laederach for cause and should declare a mistrial if bias is found to be present. The court should also determine whether Barker or his attorney was aware of the relationship prior to verdict. If so, then the challenge for cause is waived if Barker did not promptly inform the court and challenge the juror.
Barker contends that the evidence will not support an instruction on impairment of earning capacity.
Impairment of earning capacity has been defined as the impairment of ability to engage in one's vocation as distinguished from loss of earnings. There must be evidence of probative value which relates the injury to the inability to engage in one's vocation. The measure of damages is the difference between the amount which the plaintiff was capable of earning before the injury and the amount he is capable of earning thereafter. There must be evidence which will permit the jury to arrive at a pecuniary value of the loss. Scott v. Nabours (1973), 156 Ind.App. 317, 296 N.E.2d 438.
The evidence here revealed that Cole had been a union and non-union over-the-road truck driver most of his life prior to the accident. He had been laid off from his last job as an over-the-road driver in 1971 due to a change in the company's trucking operation. Cole did not seek a similar position at that time because his wife was extremely ill and he did not want to leave her at home alone. Cole obtained employment driving a delivery van. In January of 1972, Cole was examined by Dr. Makovsky and was found to be physically able to drive an over-the-road truck. 3
Dr. Makovsky testified that Cole is now unable to drive a truck but if not for the accident he could have obtained a truck driving position. Mrs. Cole's health has improved and Cole would seek such a position if not for his injury. He received several offers of employment as an over-the-road truck driver after his wife's health improved but after he suffered his injury.
As a union truck driver in 1970, Cole earned $5.70 an hour, working an average of sixty hours per week. He also received between 14.4 cents and 15.7 cents per mile and averaged 2,500 miles per week. However, Cole did not work in the winter months. At the time of the accident Cole was earning $140 per week. At the time of trial, he was earning $200 per week. The evidence also revealed that the union and non-union over-the-road truck drivers who testified earned between $3.50 and $6.25 per hour in 1972 and between $3.60 and $8.20 at the time of trial. The union wage scale at the time of trial was $7.85 based on a 40 hour week.
This evidence is sufficient to support a finding of impaired earning capacity and adequately enables the jury to arrive at the pecuniary value of the loss.
Barker also contends that there was no evidence as to permanent injury, loss of wages, past and future medical expenses and future pain and suffering. Our review of the record does not support this contention.
Dr. Armalavage testified that the accident aggravated a degenerative arthritic condition in the lower back and hips. Cole now suffers a 10% Permanent disability to the individual as a whole as a result of the aggravation. Dr. Makovsky testified that the condition was progressing into fibrositis and would not improve but would get worse. He further testified that Cole suffered from muscle spasms in his lower back and would continue to experience pain in the future. He prescribed Bufferin and application of heat for the pain. Cole is also taking Indocin for the arthritic condition.
Cole was unable to work for approximately two (2) months after the accident and he spent one week in the hospital. His medical bills were introduced into evidence. Thus, it is clear that there was some evidence on each element of damage.
James Cornell was allowed to testify over Barker's objection as to his wages as a truck driver for American Oil Company. Barker asserts that this evidence was irrelevant and immaterial.
Although Cornell was a union truck driver, American Oil Company negotiated a separate contract with the union. It was not an industry-wide contract. In addition, Cornell had 15 years' seniority with the company.
Cole had never worked for American Oil nor had he worked under a similar contract. However, prior to the accident Cole was a qualified union over-the-road truck driver. The injuries suffered in the accident prevented him from engaging in this type of work. The evidence of Cornell's wages was relevant to show the wages earned by one employed as a truck driver. The differences between Cornell's employment and that of Cole went only to the weight of the evidence. These differences in contract, seniority and type of trucks driven were presented to the jury. Barker was not harmed by the admission of this evidence.
Barker next contends that the jury award of $50,000 was excessive. Indiana courts have set a strict standard of review for appeals predicated upon the excessiveness or insufficiency of awarded...
To continue reading
Request your trial
-
Gomez v. Adams
...is not entitled to contribution from other joint tort-feasors, thus precluding an allocation of damages between them, Barker v. Cole (3d Dist.1979) Ind.App., 396 N.E.2d 964, the relationship between employer and employee under the doctrine of respondeat superior is not strictly that of join......
-
Barnes v. Barnes
...Inc. (1985), Ind.App., 474 N.E.2d 107, 108. The tortfeasor was not a "collateral source" for purposes of this rule. Barker v. Cole (1980), Ind.App., 396 N.E.2d 964, 970. While the statutory modifications to the rule, permitting admissibility of certain collateral source payments, were in ef......
-
Haderlie v. Sondgeroth
...liability to prevent double recovery. See also Sanders v. Cole Municipal Finance, 489 N.E.2d 117 (Ind.Ct.App.1986); Barker v. Cole, 396 N.E.2d 964 (Ind.Ct.App.1979). Moreover, in my opinion the majority's insistence on applying WYO.STAT. § 1-1-108 solely to the "parties" is more appropriate......
-
Consolidated Rail Corp. v. Allied Corp.
...Corporation v. McMillan Bloedell, Ltd., 475 N.E.2d 713 (Ind.App.1985); Gomez v. Adams, 462 N.E.2d 212 (Ind.App. 1984); Barker v. Cole, 396 N.E.2d 964 (Ind. App.1979); Jackson v. Record, et al., 211 Ind. 141, 5 N.E.2d 897 (1937). Conrail asserts that Illinois law governs its claim. Under Ill......