Brattain v. Herron

• Decision Date: 09 April 1974
• Docket Number: No. 1--573A104,1--573A104
• Citation: 159 Ind.App. 663,309 N.E.2d 150
• Court: Indiana Appellate Court
• Parties: Helen Lucille BRATTAIN, Defendant-Appellant, v. Hester F. HERRON, Administratrix of the estate of Lewis A. Herron, Deceased, Plaintiff-Appellee. Helen Lucille BRATTAIN, Defendant-Appellant, v. IRWIN UNION BANK AND TRUST COMPANY, Administrator of the Estate of John B. Bishop, Deceased, Plaintiff-Appellee. Helen Lucille BRATTAIN, Defendant-Appellant, v. Albreta A. BUTLER, Administratrix of the Estate of Richard A. Butler, Deceased, Plaintiff-Appellee.

Page 150

309 N.E.2d 150

159 Ind.App. 663

Helen Lucille BRATTAIN, Defendant-Appellant, v. Hester F. HERRON, Administratrix of the estate of Lewis A.

Herron, Deceased, Plaintiff-Appellee.

Helen Lucille BRATTAIN, Defendant-Appellant, v. IRWIN UNION BANK AND TRUST COMPANY, Administrator of the

Estate of John B. Bishop, Deceased, Plaintiff-Appellee.

Helen Lucille BRATTAIN, Defendant-Appellant, v. Albreta A. BUTLER, Administratrix of the Estate of Richard

A. Butler, Deceased, Plaintiff-Appellee.

No. 1--573A104.

Court of Appeals of Indiana, First District.

April 9, 1974.

Rehearing Denied May 14, 1974.

J. Lee NcNeely, Matchett & McNeely, Shelbyville, for appellant.

Cline, King, & Beck, Columbus, Hammond & Pugh, Indianapolis, Lawson, Pushor, Mote & Schug, Columbus, for appellee; Soshnick & Bate, Shelbyville, of counsel.

LOWDERMILK, Judge.

This appeal comes to us as the result of an automobile-pick up collision in which three men were killed in the pick up truck, a fourth man was killed in the automobile and the operator of the automobile, Donald R. Farmer, a minor, survived.

The causes were consolidated for trial with the result being that the jury awarded damages against the driver of the automobile, Donald R. Farmer, and Helen L. Brattain, to Hester F. Herron in the amount of $50,000, to Irwin Union Bank and Trust Company in the amount of $75,000, and to Albreta A. Butler in the amount of $100,000. Judgment was rendered accordingly.

Donald R. Farmer had a maximum of $20,000 insurance coverage on the automobile which he was driving. This amount was paid in to the clerk's office as a result of a criminal action and before the commencement of this trial.

Helen Brattain, Farmer's co-defendant, timely filed her motion to correct errors which was by the court overruled. Farmer did not file a motion to correct errors.

The facts of this case are that on May 3, 1971, Donald R. Farmer, age 20 years, resided with his parents in New Palestine, Indiana. On that day Mr. Farmer, in company of a friend, drove from his home to Shelbyville, Indiana, where he conducted some business and the two boys drove to the home of Mr. Farmer's older sister, appellant Helen Lucille Brattain, arriving there about 11 o'clock in the morning. Up to this time neither Farmer nor his friend had had any intoxicating liquors to drink that day.

These young men stayed in Mrs. Brattain's home for four consecutive hours and left there about 3 o'clock in the afternoon, en route to New Palestine.

While Mr. Farmer and his young friend were in Mrs. Brattain's home they had access to the refrigerator and consumed therefrom several bottles of beer, together with several glasses of whiskey and coke. When they left the home to return to New Palestine they each took a cold beer with them in Farmer's automobile. All the alcoholic beverages that were consumed belonged to Mrs. Brattain and came from her refrigerator and with her knowledge that the boys were consuming the beverages, and she visited with them a part of the time they were there drinking. She was in and out of the home during the entire four hour period that the boys were drinking her liquor, made no objections to their drinking or to their taking the beer with them when they left. Donald Farmer was her brother and she knew he was under 21 years of age and she further knew, or by the exercise of reasonable care, should have known that Farmer would be driving his automobile on the highway as soon as he left her home. Mr. Farmer had, on prior occasions, consumed alcoholic beverages at the Brattain home without objection.

Mr. Farmer drove on State Road 9 toward New Palestine and at a point about 5 1/2 miles north of Shelbyville, ran off the right side of the pavement, came back on and crossed the same at an angle, laid down skid marks 150 feet long, and collided head on with a southbound pick up truck which had run to the right off of the paved portion of the highway when it was struck.

As a direct result of the collision the occupants of the pick up truck, Lewis A. Herron, John B. Bishop, and Richard A. Butler, were killed. Michael Schreckengast, Farmer's friend, received injuries from which he shortly thereafter died.

Mr. Farmer was admitted to the hospital at Shelbyville and examined by Dr. James H. Tower, Jr., and at the request of a police officer who had accompanied Farmer to the hospital, removed a blood sample from Farmer, placed it in a glass bottle container provided him by the officer, enclosed the container in an envelope, closed it, signed it, dated it, and delivered it to the officer. A test by the State Police of the blood sample revealed that the blood contained .197% of blood alcohol.

The three victims in the pick up truck were employed, with substantial incomes, married and two of them had children.

The appellant's motion to correct errors is quite voluminous. We shall, therefore, write on the specifications thereof presented in the argument section of the brief, consolidating those specifications where it is possible under the Rules, and omitting those specifications in the motion on which there is no argument (Ind. Rules of Procedure, Appellate Rule 8.3(A)(7)), as such specifications have been waived by appellant.

Issue A is that the court erred in admitting into evidence plaintiffs' Exhibits No. 20, 29 and 36, the same being photographs of the scene of the accident, which appellant claims depict the bodies of plaintiffs' decedents.

Plaintiffs' Exhibit 20 is a photograph of the automobile operated by Mr. Farmer. By closely scrutinizing the exhibit the top of an apparent victim's head can be seen and apparently men are attempting to remove him from the wreckage. There is nothing gory or gruesome about this photograph. Although other photographs of the automobile were entered into evidence, plaintiffs' Exhibit 20 may be considered merely cumulative evidence to show the speed and violence with which the two vehicles collided.

Plaintiffs' Exhibit 29 is a photograph of the demolished pick up truck which does disclose a man lying under the same. There is no evidence of any blood or deep lacerations to the body. The picture was not gruesome, was taken at the scene of the collision and depicts the extreme violence of the collision by showing the demolishment of the pick up truck and is merely cumulative of other pictures tending to prove the violence of the impact.

Plaintiffs' Exhibit 36 is a photograph of Farmer's automobile setting upright and the totally demolished pick up truck in which three decedents were riding and does not, so far as this court can see, picture any dead human body or bodies. Such exhibit would show the terrific force of the impact and would be merely cumulative of other photographs of the vehicles as they were after the collision.

Appellant relies on the cases of Evansville School Corp. v. Price (1965), 138 Ind.App. 268, 208 N.E.2d 689, and Kiefer v. State (1958), 239 Ind. 103, 153 N.E.2d 899, as her authority that the court erred in permitting the introduction of said three photographs.

In Price, supra, the trial court permitted the introduction into evidence of a photograph of the corpse of the decedent, age 11, lying in his casket. This court held that such was an abuse of judicial discretion and the court erred in admitting the exhibit for the reason that it was immaterial and irrelevant. We have no fault to find with that reasoning as showing the child in his casket after it was already admitted he had been killed could not tend to shed any light on the manner in which he met his death. In the case at bar the photographs were, in our opinion, relevant and material and tended to show, as we have heretofore stated, the speed of Farmer's automobile and the terrific force and violence of the impact between the two vehicles, the location of the wrecked vehicles with reference to location to one another and to the fact the vehicles came to a stop completely off the paved portion of the highway.

In Kiefer, supra, it was held that extremely gruesome photographs were irrelevant and inadmissible. We have heretofore held that the photographs in question in the case at bar were not gruesome and therefore the Kiefer case would not control. There was no error in admitting plaintiff's Exhibits 20, 29 and 36. 13 I.L.E. Evidence § 165, Photographs, ch. 9, pp. 44, 45 and 46.

The court now combines issues B and C of claimed errors of appellant Brattain.

Issue B is that the trial court committed reversible error when it permitted plaintiffs to introduce into evidence over objection of defendants, plaintiffs' Exhibit 39, which was a certified copy of the guilty plea of defendant Donald R. Farmer to the charge of causing the death of another while driving under the influence of intoxicating liquor. Donald R. Farmer did, on May 30, 1972, in the same court in which this case was tried, enter his plea of guilty to causing the death of another while driving under the influence of intoxicating liquor. A certified copy of this guilty plea marked plaintiffs' Exhibit 39 was offered and admitted into evidence over the objection of the defendants and was exhibited to the jury.

Appellant Brattain relies on the case of Ashton v. Anderson (1972), Ind., 279 N.E.2d 210 as her authority that the court erred. Mrs. Brattain contends that Exhibit 39 could only be offered for one of two reasons: (a) to impeach the credibility of the defendant, Donald R. Farmer, or (b) to establish the facts upon which the plea was rendered. It is our opinion that the holding in Ashton v. Anderson, supra, does not apply to the case at bar and neither does the case of Black v. Wachs (1959), 130 Ind.App. 293, 163 N.E.2d 894, apply to the case at bar, as insisted by Mrs. Brattain.

The case of Dimmick v. Follis (1953), 123 Ind.App. 701, 111 N.E.2d 486, 488, is a case in which the facts show that the defendant was invoved in a collision and the same day entered a plea of guilty to reckless...