Hobby Shops, Inc. v. Drudy

• Decision Date: 16 October 1974
• Docket Number: No. 3--173A9,3--173A9
• Citation: 161 Ind.App. 699,317 N.E.2d 473
• Parties: HOBBY SHOPS, INC., and Hobby Ranch House, Inc., Appellants-Defendants, v. Michael D. DRUDY, Appellee-Plaintiff. HOBBY SHOPS, INC., and Hobby Ranch House, Inc., Appellants-Defendants, v. Robert D. DRUDY, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 473

317 N.E.2d 473

161 Ind.App. 699

HOBBY SHOPS, INC., and Hobby Ranch House, Inc., Appellants-Defendants, v. Michael D. DRUDY, Appellee-Plaintiff.

HOBBY SHOPS, INC., and Hobby Ranch House, Inc., Appellants-Defendants, v. Robert D. DRUDY, Appellee-Plaintiff.

No. 3--173A9.

Court of Appeals of Indiana, Third District.

Oct. 16, 1974.

William F. McNagny, John F. Lyons, Fort Wayne, for appellants-defendants.

Robert J. Maley, Richmond, James L. Larson, Fort Wayne, for appellee-plaintiff.

GARRARD, Judge.

In April 1962, Michael Drudy, a thirteen year old newsboy for the Indianapolis Star, won a trip to Detroit for his efforts in securing new subscribers. A large number of boys made the trip on busses provided by the Star. By prearrangement, the evening they were returning home, they stopped at defendant's restaurant in Fort Wayne. After eating, Drudy and a companion left the restaurant and were running across the parking lot to their bus when Drudy ran into a cable some 3 to 4 feet above the ground level. The cable was used, along with a curbing, to separate parking lanes. Drudy was knocked to the ground and injured. He was eventually operated on to relieve an epidural hematoma. Two weeks thereafter a subdural hematoma was discovered, and there was a second operation. This latter operation left a hole in his skull approximately three inches in diameter. Medical testimony indicated the risks and limitations this has placed upon him.

Drudy filed suit for damages, and his father sued for medical expenses and loss of services. The actions were consolidated, tried to a jury, and resulted in an award of $35,000 to Drudy and $6,500 to his father.

This appeal asserts insufficiency of the evidence, failure to sustain defendant's motion for directed verdict, that the damages are excessive, that the court improperly excluded certain evidence and erroneously refused to give certain instructions tendered by defendants. The appellees have requested a 10% increase in the award pursuant to AP 15(F).

The motion to correct errors asserts improper refusal by the court to permit questions to 'plaintiffs' witnesses, including the mother of Michael Drudy' regarding any monetary settlement made by the Star with the Drudys related to a skull fracture received by Drudy in another later accident. It is urged this evidence was proper in trying to determine the injury and damage attributable to the injuries sued on and as an exception to the collateral source rule to rebut Mrs. Drudy's statement that the reason Michael did not undergo a third operation was 'they' could not afford it.

The assignment sufficiently presents the question regarding Mrs. Drudy's testimony. However, it is insufficient to preserve error regarding questions, if any, propounded to other witnesses on this point. Indeed, we assume there were none, since none are pointed out in defendant's thorough brief.

The record reveals that at the close of her direct examination, Mrs. Drudy was permitted to testify to her reasons why a third operation, which would have installed a plate over the hole in Michael's head, was not performed. She stated several reasons which included:

'We couldn't afford it. We simply could not afford another one. If it had been a matter of it had to be, we would have. There was no guarantee that this plate was the cure all so we three came to the conclusion ourself (sic!).'

Cross examination then opened with:

'Q: You've said that you couldn't afford to have this repair. Did you ever make any request of the Indianapolis Star to take care of it?'

We note this was the only question asked on the subject. Drudy's prompt objection was properly sustained.

Defendant asserts that under Jackson v. Beard (1970), 146 Ind.App. 382, 255 N.E.2d 837, Drudy opened the door for evidence of money received in the settlement of a later different accident in which he received a skull fracture. In Jackson the court held that evidence regarding plaintiff's becoming eligible for and drawing regular Social Security retirement benefits should have been allowed where plaintiff introduced considerable evidence that the profitability of his farming operation substantially decreased in the year he became 65 because he could no longer do the work due to his injury sustained two years earlier. The evidence was admissible, not as a matter of collateral income that mitigated damage, but on the issue created by plaintiff as to why he cut back his farming.

No such relevant issue is presented by settlement monies that may have been received by Drudy for a different injury. Defendant asserts that plaintiff tried to create such an issue through the testimony of Dr. Gibson, which included the question of whether he thought the skull fracture was related to the previous injury involved in this suit. The doctor's testimony, however, was that the injuries were not related, and the record supports the inference that Drudy was simply bringing this out and making it clear to the jury, since the X-rays taken of plaintiff showed the fracture line.

Even so, defendant was entitled to impeach Mrs. Drudy if she was not being candid. Defendant also correctly points out that since the question was asked upon cross-examination, an offer of proof was unnecessary. However, to create harmful error, a responsive answer to the question asked was whether Mrs. Drudy ever requested the Star 'to take care of it' (the operation). Any responsive answer would have been immaterial and prejudicial, and would not have directly impeached her prior testimony. The objection was properly sustained.

Defendant also urges that its manager should have been permitted to testify to conversations with other newsboys after the accident. The basis for the assertion lies in the direct examination of the manager. He was asked whether there was a request for an aspirin tablet; whether he knew anything about that. He answered:

'I remember some kids coming in and they got a--something to drink and they told the cashier they wanted some aspirins; some kids was running and jumped over the cable, and one fell and he may be hurt, and they want to give him some aspirins. I overheard that, working in the lobby . . .'

At that juncture plaintiffs' counsel interposed and moved to strike the answer. The court announced it was sustaining the objection. It struck the testimony and admonished the jury to disregard it. The answer was properly excludable as hearsay. That the court ruled without requiring plaintiff to state the basis for his objection is of no moment since the sustaining of an objection will be upheld if there is any basis upon which the ruling is correct. Maier v. Bd. of Public Works (1898), 151 Ind. 197, 51 N.E. 233; Sheets v. Garringer (1963), 135 Ind.App. 488, 194 N.E.2d 757.

The next errors asserted refer to the court's refusal to give instructions numbered 8, 9, 12, 13, 14, 18, 19, 20, 21 and 22 tendered by defendant.

Defendant's tendered instruction No. 8 sought to instruct the jury that if they found that immediately before the accident the newsboys were permitted by their supervisors to run and play in the parking lot, and if defendant did not have reasonable opportunity to learn of such activity and control it, then the defendant was not negligent.

The instruction is misleading for it restricts the jury's ability to find negligence to foreseeability of the specific evidentiary circumstances preceding plaintiff's injury. The risk to be perceived was not necessarily that a group of newsboys would be permitted by their supervisors to 'run and play' on the parking lot, but rather that 'running and playing' was likely to occur.

More importantly for the purposes of this appeal, the matters sought to be covered by the instruction were adequately presented to the jury by the final instructions given by the court. These properly covered the necessity of finding that defendant was negligent, defined the duty to an invitee, and instructed the jury that if they found the parking lot as maintained was reasonably safe for patrons when used in a reasonable manner by the patrons, then defendant was not negligent in the maintenance and operation of the parking lot.

Under such circumstances, even if the tendered instruction were correct, no harmful error resulted from the failure to give it. Indianapolis Transit System v. Williams (1971), 148 Ind.App. 649, 269 N.E.2d 543.

Tendered instruction No. 9 sought to instruct the jury specifically about plaintiff's duty to use ordinary care to discover obstructions in the parking lot. The matters presented were adequately covered by the instructions given by the court on contributory negligence.

The other eight instructions the defendant urges were improperly refused commence with defendant's tendered instruction No. 12.

Indiana Rules of Procedure, Trial Rule 51 specifically delineates the procedures applicable to instructions. TR 51(D) provides:

'Each party shall be entitled to tender no more than ten (10) requested instructions to be given to the jury; however, the court in its discretion for good cause shown may fix a greater number. Each tendered instruction shall be confined to one (1) relevant legal principle. No party shall be entitled to predicate error upon the refusal of a trial court to give any tendered instruction in excess of the number fixed by this rule or the number fixed by the court order, whichever is greater.' (Emphasis supplied)

We believe the rule to be both clear and sound. Its purpose on limitation is three-fold: (a) too many instructions tend to confuse rather than enlighten the jury, Pfisterer v. Key (1941), 218 Ind. 521, 33 N.E.2d 330; (b) the sheer number of tendered instructions will at times make it physically impossible for opposing attorneys or the court to perform their duty in examining tendered instructions, White v. Evansville A.L.H. Assoc. (1965), 247 Ind. 59, 210 N.E.2d 845; and (c) this in turn makes the likelihood of error nearly...