Jackman v. Montgomery, 1--1173A196

• Decision Date: 26 December 1974
• Docket Number: No. 1--1173A196,1--1173A196
• Citation: 320 N.E.2d 770,162 Ind.App. 558
• Parties: Lebert JACKMAN, Plaintiff-Appellant, v. Mark MONTGOMERY and Clayborn Parker, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 770

320 N.E.2d 770

162 Ind.App. 558

Lebert JACKMAN, Plaintiff-Appellant, v. Mark MONTGOMERY and Clayborn Parker, Defendants-Appellees.

No. 1--1173A196.

Court of Appeals of Indiana, First District.

Dec. 26, 1974.

Kendall, Stevenson, Howard & Lowry, Danville, Hickam & Hickam, Spencer, for plaintiff-appellant.

Yarling, Winter, Tunnell, Robinson & Lamb, Indianapolis, Charles W. Edwards, Spencer, for defendants-appellees.

ROBERTSON, Presiding Judge.

Plaintiff-appellant (Jackman) is appealing from a negative judgment on his suit for damages resulting from a collision between his farm tractor and an automobile driven by the defendant-appellee (Montgomery).

One of the two issues raised by Jackman presents reversible error in that the trial court refused to give his tendered instruction on the duty of a motorist to maintain a lookout.

A review of the facts shows that between 7:00 and 7:30 P.M. on an early November evening Montgomery was driving an automobile south on a county road. Jackman, who was taking a group of youngsters on a church hayride, was sitting on his farm tractor which was parked on the west side of the road and also headed south. Some boys were in the process of hitching two wagons to the tractor when Montgomery's automobile struck the left rear tire of the tractor. Jackman was thrown to the ground and injured.

At the conclusion of the trial Jackman tendered an instruction which read:

'You are instructed that a person who operates an automobile along a county road on a dark night must keep a lookout for other travelers on the highway, and along the highway, as part of his duty to exercise ordinary care.'

Montgomery objected to the instruction with the trial court then modifying the instruction to read:

'You are instructed that a person who operates an automobile along a county road on a dark night must keep a reasonable lookout for other travelers on the highway, and upon the highway, as part of his duty to exercise ordinary care.' (Additions emphasized).

Jackman than objected to the modified instruction as being 'too confining'. The trial court then refused the entire instruction.

Jackman's motion to correct errors asserts that the rejection of the instruction as modified is reversible error. As previously indicated, we agree for the reason that the trial court should not refuse an instruction covering an essential element of the case, when it is supported by some evidence and is consistent with the theory of the case and where only a general instruction is intended to cover that area of the law. See Barnes v. Deville (1973), Ind.App., 293 N.E.2d 54; Bundy v. Ambulance Indianapolis Dispatch, Inc. (1973), Ind.App., 301 N.E.2d 791.

Montgomery argues that the refusal was not error for the reasons that the instruction was repetitious and an improper statement of the law.

We cannot agree that the refused instruction was repetitious. The trial court gave Indiana Pattern Jury Instructions which generally defined negligence, proximate cause, etc. Additionally, the complaint was read to the jury wherein the failure to maintain a lookout was one of the allegations of negligence. In neither instance do we find a definition of lookout. Instead, we find the instructions, alleged by Montgomery to have covered lookout, to be general in nature.

As to whether the offered instruction was a proper statement of the law we are of the opinion that something more is required of a motorist's lookout than the narrow position urged by Montgomery in that a reasonable lookout, depending upon the facts, may include something more than the traveled portion of the highway. Accord: Johnson v. Mills (1973), Ind.App., 301 N.E.2d 205. See Generally: 3 I.L.E. Automobiles § 154 at p. 512: 2 Blashfield Automobile Law and Practice § 104 et seq.

We conclude, therefore, that it was reversible error to not include Jackman's instruction on lookout and accordingly reverse and remand for further action not inconsistent with this opinion.

Although not necessary for the decision in this case we shall discuss Jackman's second issue to aid the trial court should the question arise again.

Jackman contends that the trial court erred in admitting into evidence a voice-writer recording of telephone conversation between a plaintiff's witness and an insurance adjustor.

At the trial, Danny Bailey was called as a witness for Jackman. His testimony was damaging to Montgomery. During his testimony, Bailey stated that he remembered being called around the date of the accident, but did not remember who called him or what had been discussed.

In the presentation of Montgomery's case, Stovall, an insurance adjustor was called as a witness. He testified that he had called Bailey and recorded the conversation. The recording was then offered to impeach Bailey's testimony.

A hearing was held outside of the presence of the jury in which the trial judge listened to the recording and ruled that it was admissable. The recording was then played to the jury.

Jackman contends that the trial court erred because a proper foundation had not been laid for the admission of the recording.

Indiana law requires that:

'The admission of a sound recording should be preceded by a foundation disclosing the following:

(1) That it is authentic and correct;

(2) That the testimony elicited was freely and voluntarily made, without any kind of duress;

(3) That all required warnings were given and all necessary acknowledgments and waivers were knowingly and intelligently given;

(4) That it does not contain matter otherwise not admissible into evidence; and

(5) That it is of such clarity as to be intelligible and enlightening to the jury.' Lamar v. State (1972), Ind., 282 N.E.2d 795. See also: Gibbs v. Miller (1972), Ind.App., 283 N.E.2d 592.

Jackman contends that the first three requirements were not met prior to introduction of the recording.

As to the first requirement, he argues that the evidence did not show that the recording was authentic and correct because portions of the actual conversation were omitted from the tape and the speaker on the recording was not properly identified as Danny Bailey.

The evidence does show that some of the conversation was missing from the recording. However, the omitted portion consisted only of 'hello' and a few introductory remarks. All of the conversation regarding the accident was recorded. Mr. Stovall testified that there was no way to edit the recording after it was recorded and that if the recorder had been turned off during the recording, audible clicks would be evident to the listener. Moreover, Jackman presented no evidence tending to prove that any material portions of the conversation were deleted. This evidence was sufficient to allow the court to find that the recording was correct.

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