Dayton Walther Corp. v. Caldwell, 480S103

• Decision Date: 17 April 1980
• Docket Number: No. 480S103,480S103
• Citation: 273 Ind. 191,402 N.E.2d 1252
• Parties: , 12 A.L.R.4th 78 DAYTON WALTHER CORP. et al. v. Rhonda Sue CALDWELL et al.
• Court: Indiana Supreme Court

Page 1252

402 N.E.2d 1252

273 Ind. 191, 12 A.L.R.4th 78

DAYTON WALTHER CORP. et al. v. Rhonda Sue CALDWELL et al.

No. 480S103.

Supreme Court of Indiana.

April 17, 1980.

William H. Vobach, Locke, Reynolds, Boyd & Weisell, Indianapolis, for appellants.

John T. Cook, Peter D. Haviza, Winchester, Wayne J. Lennington, Muncie, for appellees.

PIVARNIK, Justice.

This cause comes to us on a petition to transfer by Plaintiff-Appellee, Rhonda Sue In consolidated actions, her father and daughter brought suit against the manufacturer and seller of the equipment, and the driver of the truck. The Randolph Circuit Court entered judgment in favor of the plaintiffs, awarding Rhonda Caldwell $800,000.00, and awarding her father, Walter Caldwell, $9,159.50. The manufacturer, Dayton Walther, appealed.

Caldwell, from the Court of Appeals. Plaintiff Caldwell was severely injured in an accident on August 29, 1974. On that date, Terry Fowler was driving a truck owned by his father, Billy Fowler, along State Road 28, in Delaware County. Attached to the truck was an empty three-axle heavy equipment trailer, which had been manufactured by Dayton Walther and purchased by Fowler from Stockberger Machinery, Inc. As the trailer passed over a bump in the highway, it became disconnected from the truck and collided head-on with the automobile operated by seventeen-year-old Rhonda Sue Caldwell. She suffered very serious injuries and her two passengers, her brother and a friend, died at the scene.

The Court of Appeals, First District, reversed the judgment of the trial court and remanded for a new trial in Rhonda Caldwell's cause of action No. 1 878 A 233. The judgment in favor of Walter Caldwell's cause of action, No. 1 878 A 232 was affirmed. Dayton Walther Corp. v. Caldwell, (1979) 389 N.E.2d 723. On rehearing, the Court of Appeals, First District, clarified its opinion to specify the parties and to limit the new trial previously ordered to the issue of damages. Dayton Walther Corp. v. Caldwell, (1979) 393 N.E.2d 208.

The issue presented for our review on transfer is the issue designated as Issue Five in the Court of Appeals opinion, Dayton Walther Corp. v. Caldwell, (1979) 389 N.E.2d 723 at 729, concerning whether or not the court erred in overruling Dayton Walther's objection to statements made by Caldwell's attorney during final argument. The Court of Appeals held that the trial court erred in overruling Dayton Walther's objection. We find the Court of Appeals in error in this regard and accordingly vacate its opinion on this issue. Since the Court of Appeals had set aside the judgment, they did not decide the issue designated as Issue Seven in the Court of Appeals opinion, 389 N.E.2d 723 at 733, which referred to the damages awarded to Rhonda Caldwell as being excessive. We will accordingly, decide that issue also. We find all other issues decided by the Court of Appeals to be correctly decided. We adopt the Court of Appeals opinion on these issues, and incorporate their opinion by reference herein. (See Appendix). We also vacate the Court of Appeals opinion on rehearing. Transfer is granted.

I.

Dayton Walther contends that the Caldwell's attorney misled the jury on the issue of damages during final argument by comments regarding potential for epilepsy and meningitis. The Caldwell's attorney made the following statement: "There's five senses, if I remember my health class, sight, hearing, smell, taste and touch, isn't that what they told us. She's either lost all or part of three of them. How do you put that in dollars? Of course, they have given her something too, you don't want to forget that. They've given her a potential for epilepsy. They've given her a potential for meningitis.

Mr. Peckinpaugh : Your Honor, I'm going to object to this argument in that there's no compensable element here. I think it's improper argument at this time.

The Court : The Court will overrule the objection.

Mr. Peckinpaugh : Thank you, your Honor. I apologize to the counsel for interrupting his argument.

Mr. Cook: (continuing) They've given her some abnormal fears. Then also they've given her this. Now neither the jury nor any of the medical doctors can restore those things to her. There's just no way. Everybody knows that. But you can take some of the load maybe off of her, you know, family. Because maybe the jury does have The above comments referring to either epilepsy or meningitis were the only language counsel used within its final argument. The general objection by counsel was the only objection that was ever made by defendants, either to the admission of the evidence or to comments on it in the closing arguments. Defendants did not object to the admission of the medical evidence at the time it was admitted, counsel did not address a motion to the court to strike the testimony of doctors giving evidence of potential epilepsy and meningitis at the close of their testimony, or at the close of all the evidence.

the power to see that her financial problems are minimized. The jury does have the power to see that maybe she could have some material things that has a meaning to ladies and gentlemen. I'm talking about things like having enough money for nice clothes, having enough money for vacations. She isn't going to have much. Have enough money for pleasant to have a pleasant home and surroundings, and have enough money to have the very best medical treatment. How do we calculate this? I told you in the beginning, you know, it's it's not possible to put on it's not possible for the jury to measure pain in a a dollar's worth of pain or a dollar's worth of impairment, but the law, the tables the law lets us put these tables in about people's life expectancy, to give us a little formula here that we might be able to use, and that's the reason I was permitted to read to you that this girl has a life expectancy of 60.13 years. I'm going to break this all down again for the loss of sight, taste, smell, leg, teeth, potential epilepsy, meningitis. Would that be worth for the total of those, of the ability the lack of the pleasures of life, would that be worth $15,000.00 a year? Well, if it would be, we're talking about $900,000.00. That's what the figure is if you talked about her lifetime, if she's just given $15,000.00 a year. As Mr. (unintelligible) said, there isn't anybody that would have her injuries for $15,000.00 a year. If you say $10,000.00, if you say well, she ought to have $10,000.00 a year with that problem, then you're talking about $600,000.00. That's the way that that's the way you can use those tables for those purposes,[273 Ind. 195] to determine pain, suffering, the loss of your members or your senses, those senses can all be used to make this determination."

An attorney has a right and a duty to comment on the evidence that is before the jury for their consideration. This is the very purpose of final argument. Only when he misquotes the evidence or extends his comments to areas of fact or supposition that are not in the evidence presented is he acting improperly. It is difficult for us to understand how plaintiff's counsel's remarks here concerning epilepsy and meningitis could be considered misleading to the jury when his statements were couched in the exact language the witnesses had used. There was no statement by him that attempted to enlarge or extend the statements made by the medical witnesses which thereby gave a different or corrupted meaning to them. The doctors very clearly stated that the conditions existing in the brain and the dura of the plaintiff created conditions in which there was a "potential" for epilepsy and meningitis. Dayton Walther never offered an objection during the entire testimony of these doctors on the grounds now raised in this appeal. Counsel never moved to strike any of the answers of either doctor on the grounds raised in this issue before, nor did counsel make such a motion at the close of the testimony of either of the witnesses.

Both doctors testified at great length on this subject on direct examination and were cross-examined. Both witnesses testified that the injuries to the front of the skull and the face of the plaintiff were severe. Dr. Goodell testified that the main concern in administering to the plaintiff in the emergency room was her very survival. The fracture to her skull in the frontal part of her face and forehead, covering the frontal lobe of the brain was such that there were several breaks in which many fragments of bone shattered and penetrated into the frontal lobe of the brain. An area of the brain was exposed and apparent to Dr. Goodell testified that brain scars are probably the most common cause of post-traumatic epilepsy, and that there would certainly be brain scars following the injuries and repair work done on plaintiff's brain. Goodell stated that the incidence of epilepsy is greater in penetrating than in non-penetrating types of injuries. He testified that a fragment of bone penetrating the dura mater and coming in contact with the cortex, is much more likely to cause epilepsy. He further testified that the threat of epilepsy to a person who has a trauma to the brain, such as plaintiff suffered here, was of so great a potential that he prescribed Dilantin for the plaintiff to prevent the onset of epileptic seizures. Plaintiff took this medication for at least a year. He stated that the highest potential for epilepsy exists in the first three years after such trauma, and that the potential has a tendency to decrease the longer a person goes without experiencing epilepsy.

Dr. Goodell when he began his treatment of the plaintiff. It was necessary to remove 40 to 50 grams of brain tissue that had been damaged and contained blood and fragments of bone. There were thirteen lacerations of the dura, the lining of the brain, that had to be repaired by sutures. Both of the witnesses testified that the dura will not repair itself and that the closing of...