Dayton Walther Corp. v. Caldwell

• Decision Date: 22 May 1979
• Docket Number: Nos. 1-878,s. 1-878
• Citation: 180 Ind.App. 539,389 N.E.2d 723
• Parties: DAYTON WALTHER CORPORATION and the Fayette-Haulette Division of Dayton Walther Corporation, Defendants-Appellants, v. Rhonda Sue CALDWELL, Walter Caldwell, Plaintiffs-Appellees, Terry D. Fowler, Billy D. Fowler, Stockberger Machinery, Inc., Defendants-Appellees, Campbell Chain Company, Third Party Defendant-Appellee. A 232, 1-878 A 233.
• Court: Indiana Appellate Court

Page 723

389 N.E.2d 723

180 Ind.App. 539

DAYTON WALTHER CORPORATION and the Fayette-Haulette Division of Dayton Walther Corporation, Defendants-Appellants, v. Rhonda Sue CALDWELL, Walter Caldwell, Plaintiffs-Appellees Terry D. Fowler, Billy D. Fowler, Stockberger Machinery Inc., Defendants-Appellees Campbell Chain Company, Third Party Defendant-Appellee.

Nos. 1-878 A 232, 1-878 A 233.

Court of Appeals of Indiana, First District.

May 22, 1979.

William H. Vobach, Locke, Reynolds, Boyd & Weisell, Indianapolis, Darryl Peckinpaugh, Warner, Clark & Warner, Muncie, for defendants-appellants.

John T. Cook, Peter D. Haviza, Winchester, Wayne J. Lennington, Muncie, for Rhonda Sue Caldwell and Walter Caldwell.

James A. McDermott, James A. Strain, Paula M. Frost, Barnes, Hickam, Pantzer & Boyd, Indianapolis, for Campbell Chain Co.

LOWDERMILK, Presiding Judge.

STATEMENT OF THE CASE

A jury found defendants-appellants Dayton Walther Corporation and The Fayette-Haulette Division of Dayton Walther Corporation (Dayton Walther) and Stockberger Machinery, Inc. (Stockberger) liable for losses sustained by plaintiffs-appellees Rhonda Sue Caldwell and her father, Walter Caldwell, when a trailer manufactured by Dayton Walther and sold by Stockberger came loose from a truck and collided with an automobile being driven by Rhonda Caldwell. Dayton Walther brings this appeal after the Randolph Circuit Court entered judgment awarding Rhonda Caldwell $800,000 and awarding Walter Caldwell $9,159.50.

FACTS

On August 29, 1974, 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. As the trailer passed over a bump in the highway, the trailer became disconnected from the truck and collided head-on with an automobile operated by seventeen-year-old Rhonda Sue Caldwell. Rhonda Caldwell suffered serious injuries; her two passengers died before medical assistance arrived.

Rhonda Caldwell filed a lawsuit on July 16, 1975, and named as defendants Terry Fowler, Billy Fowler, Dayton Walther, the State of Indiana, the Indiana State Highway Commission, and Stockberger. Her father, Walter Caldwell, brought an action against the same defendants to recover for loss of his daughter's services and for various expenses incurred for Rhonda's medical treatment.

On July 28, 1976, Dayton Walther filed a third party complaint against Campbell Chain Company (Campbell) in each case. Dayton Walther alleged that Campbell had manufactured the safety chain which was placed on the trailer and had expressly and impliedly warranted that the chain was of merchantable quality, fit for the purpose for which it was intended, and in full compliance with all applicable safety standards.

The causes of action against the State of Indiana and the Indiana State Highway Commission were dismissed with prejudice on November 29, 1977, after payment of $30,000 to the Caldwells. On December 29, 1977, the trial court granted Campbell's motion for a separate trial.

After holding a third pre-trial conference, the trial court entered an order on January 12, 1978, which defined the issues for trial. As to the first legal paragraph of each complaint:

"* * *ldi

7. With respect to the defendant, Terry D. Fowler, the plaintiffs charge that said defendant was guilty of negligence in the following particulars:

(a) That said defendant negligently failed to properly attach or connect the trailer to the truck.

(b) That said defendant negligently failed to use safety devices to insure that the trailer would not be released from the truck.

(c) That said defendant failed to use safety chains that would meet the standards required by Indiana statute, and

(d) That said defendant negligently and carelessly drove the truck and trailer over a large hump in the roadway at an excessive speed.

8. With respect to the defendant, Billy D. Fowler, . . . the plaintiffs allege that said defendant is liable to the plaintiffs for the negligence of the defendant, Terry D. Fowler, on the theory of respondeat superior. . . .

9. As against the defendant, Dayton Walther Corporation and The Fayette-Haulette Division of Dayton Walther Corporation, the alleged manufacturer of said trailer, it is alleged that said manufacturer negligently designed, inspected and tested said trailer."

As to the second legal paragraph of each complaint:

"11. The second legal paragraph of the complaints of the plaintiffs is predicated upon the theory that a defective and unreasonably dangerous condition existed in the trailer at the time it was placed in the stream of commerce by the manufacturer and seller of said product. This involves the theory of strict liability in tort, as set forth in Section 402 A of the Second Restatement of Torts, which has been adopted as the law in Indiana. The only defendants named and charged with liability in the second legal paragraph are the defendants, Dayton Walther Corporation and The Fayette-Haulette Division of the Dayton Walther Corporation, the alleged manufacturer, and the defendant, Stockberger Machinery, Inc., the alleged seller of said product. The particulars in which the plaintiffs claim that said product was defective at the time of the alleged delivery thereof to the purchaser are that there was allegedly attached to said trailer a safety chain which was defective in the manner of weld and in its tensile strength. Plaintiffs also contend that said product was defective in that it contained only one, instead of two, chains."

Trial of the consolidated causes of action commenced March 6, 1978. After the Caldwells presented their case in chief, the trial court granted Billy Fowler's motion for judgment on the evidence because the Caldwells had failed to prove that Terry Fowler was the agent of Billy Fowler at the time of the collision.

The jury returned verdicts against the Caldwells and in favor of Terry Fowler. The verdicts were in favor of the Caldwells and against Dayton Walther on the first legal paragraph and in favor of the Caldwells and against Dayton Walther and Stockberger on the second legal paragraph. The jury assessed Rhonda Caldwell's damages at $800,000 and Walter Caldwell's damages at $36,000. In response to Dayton Walther's motion to correct errors, the trial court reduced the award of $36,000 to $9,159.50.

ISSUES

Dayton Walther contends that the trial court erred in

1. denying part of the motion in limine filed by Dayton Walther;

2. overruling Dayton Walther's objections to certain testimony which Dayton Walther characterizes as gruesome, inflammatory, immaterial, irrelevant, and prejudicial;

3. refusing to read Dayton Walther's tendered instruction concerning recovery for emotional trauma;

4. refusing to read Dayton Walther's tendered instruction concerning recovery for loss of earnings or loss of future earning ability;

5. overruling Dayton Walther's objection to certain statements made during the final argument by the attorney for the Caldwells;

6. refusing to read Dayton Walther's tendered instruction concerning recovery for future medical complications;

7. failing to find that the damages awarded Rhonda Caldwell were excessive; and

8. granting Campbell's motion for a separate trial on the issues raised by the third party complaint.

DISCUSSION AND DECISION

Issue One

Dayton Walther contends that the trial court erred when it denied part of Dayton Walther's motion in limine.

In general, the denial of a motion in limine does not occasion reversible error. The harm, if any, occurs when the evidence is improperly admitted. State v. Church of the Nazarene, (1978) Ind., 377 N.E.2d 607; Marsh v. Lesh, (1975) Ind.App., 326 N.E.2d 626. The admissibility of that evidence is considered in Issue Two.

Issue Two

Dayton Walther asserts that the trial court erred in overruling Dayton Walther's objections to certain testimony which Dayton Walther characterizes as gruesome, inflammatory, immaterial, irrelevant, and prejudicial.

Dayton Walther argued at trial that the testimony of two police officers who described the condition of the two passengers in the automobile after the collision was irrelevant, immaterial, not probative, and only intended to inflame the prejudice of the jury. The trial court admitted the evidence after concluding that it was relevant to show the severity of impact.

The argument of Dayton Walther on appeal is summarized in the following statement in its brief:

". . . these defendants (Dayton Walther) were not being sued for alleged fault in driving at an excessive rate of speed, and the severity of the impact really had nothing to do with any issue of fault asserted against the appellants (Dayton Walther)."

This argument ignores the fact that the Caldwells had charged Terry Fowler with driving at an excessive rate of speed. Terry Fowler's liability, as well as that of Dayton Walther, was being determined at the trial.

In Washington Theatre Co. v. Marion Theatre Corp., (1948) 119 Ind.App. 114, 130, 81 N.E.2d 688, 694, appears this resolution of a comparable specification of error:

"Appellant, Washington Theatre Company, asserts error in the admission over its objection of the testimony referred to in its specifications 6 to 18 of its motion for a new trial. The appellant contends that such evidence of conversations between Gregory, an officer of appellee corporation, and appellant Connors and the other specified testimony of other witnesses constituted hearsay evidence As to it. All of such material testimony was admissible as against the other defendant in the cause, and as such was proper. . . ." (Citations omitted, our emphasis)

In Hogue v. McClintock, (1881) 76 Ind. 205, 208-9, McClintock sued Samuel Hogue, Thomas Hogue, George Bone, and seven other persons to recover the value of certain wheat wrongfully taken from...