Lengyel v. Hecht, 667A15

• Decision Date: 04 December 1968
• Docket Number: No. 667A15,No. T,667A15,T
• Parties: Michael LENGYEL, Jr., Appellant, v. Paul HECHT, Appellee.
• Court: Indiana Appellate Court

Page 135

242 N.E.2d 135

143 Ind.App. 660

Michael LENGYEL, Jr., Appellant, v. Paul HECHT, Appellee.

No. 667A15.

Appellate Court of Indiana, Division No. Two.

Dec. 4, 1968.

Rehearing Denied Jan. 2, 1969.

Transfer Denied March 4, 1969.

Richard P. Komyatte, Harold Abrahamson, Hammond, Crumpacker & Abrahamson, Hammond, of counsel, for appellant.

Charles G. Bomberger, Gilbert F. Blackmun, Hammond, George W. Douglas, Valparaiso, Friedrich, Bomberger, Tweedle & O'Connor, Hammond, of counsel, for appellee.

SMITH, Judge.

Appellant, Michael Lengyel, Jr., was injured when struck by a runaway electric golf cart operated by the appellee, Paul Hecht, at a golf outing which the parties were attending at Cedar Lake, Indiana. On the issues joined of negligence and causation, a jury returned a general verdict for the defendant-appellee, and judgment was entered accordingly.

Appellant filed a timely motion for a new trial which was overruled. The sole error assigned is the overruling of the motion for a new trial, which motion contained fifteen specifications of error. However, the appellant's brief discusses only five such specifications and appellant has apparently abandoned the other ten specifications.

The five specifications of error contained in the motion for a new trial which are argued by the appellant are as follows:

'1. The verdict of the jury is contrary to law since the undisputed evidence was such as to entitle the appellant to a verdict.

'2. The trial court committed prejudicial error in refusing to permit appellant to cross-examine appellee as to what intoxicating beverages he had drunk, since such evidence was material and relevant on the issue of appellee's control of the golf cart.

'3. The trial court committed prejudicial error in permitting an expert witness to testify as to what possibly might have caused the accident, where his opinion was not based on facts established by evidence.

'4. The trial court committed prejudicial error in granting the appellee's motion to suppress the testimony of certain rebuttal witnesses called by the appellant.

'5. The trial court committed reversible error in giving the jury an emergency instruction where there was no evidence in the record from which the jury could find that appellee was confronted with an emergency without fault on his part.'

Appellant's first specification of error relates itself to the evidence. The evidence in substance discloses the following: That the appellee was backing his electric golf cart down an incline toward the general area where appellant was seated at a picnic table. Appellee was looking over his shoulder and applied the brakes on the golf cart approximately three feet from the table. The golf cart did not stop, but struck the table and the appellant, thereby shattering the table on impact and pushing it approximately five feet, where the cart came to a stop on top of the broken picnic table and on top of appellant's legs. There was evidence submitted by the appellee to the effect that electric switches sometimes freeze together, and that when this occurs, the brakes will not function. Appellant's witness, the club mechanic, testified that even if the snap switches which control the brake mechanism were to freeze or burn together, the brakes would still stop the golf cart if the switches were to freeze at either low or medium speeds. However, the brakes would fail to function if the cart was being operated at the highest of its three possible speeds.

Under the first specification of error the appellant maintains that the verdict is contrary to law because the undisputed evidence required a contrary verdict. Appellee, in response to this specification of error, asserts that this court may only concern itself with the evidence most favorable to appellee and that the court will only look to see if there was any competent evidence, whatever its weight, to support the verdict; and further urges that the facts of collision and the unforeseen mechanical failure of the brake do not constitute acts of negligence. Jackson v. Johnson (1966), Ind.App., 222 N.E.2d 409; City of Mitchell v. Stevenson (1964), 136 Ind.App. 340, 201 N.E.2d 58; Silverstein v. Central Furniture Co., Inc. (1960), 131 Ind.App. 170, 162 N.E.2d 690.

The appellant under his Specification of Error No. 1 is arguing the weight of the evidence, and in fact is asking us to weigh the evidence.

From a review of the evidence most favorable to the appellee we find 'competent' evidence to support the verdict of the jury and therefore we conclude that the verdict is not contrary to law as asserted in Specification of Error No. 1.

Appellant's Specification of Error No. 2 concerns the issue of control of the operation of the golf cart and is contained in the following allegation of the amended complaint:

'Defendant was negligent failing to keep said golf cart under proper and reasonable control.'

It is the contention of the appellant that evidence of the drinking of intoxicating beverages is directly related to the issue of control. Specifically, the appellant maintains that the trial court erred in sustaining an objection to a question asked the appellee, which question is as follows:

'MR. ABRAHAMSON: Mr. Hecht, you indicated that there was soda pop, not dogs, and beer available at this refreshment stand out on the course. During the course of that golf round, did you avail yourself with any refreshments out there on the course?'

From an examination of the question it appears that the appellant was inquiring as to whether appellee had availed himself of any refreshments while on the golf course. The question was prefaced with a statement made by the counsel for the appellant that soda pop, hot dogs and beer were available. It is apparent that the question called for a 'yes' or 'no' answer; that it refers to three types of refreshments, two of which are obviously unrelated to the consumption of intoxicating beverages.

We feel that the propounding of such a question is an indirect attempt on the part of the appellant to get the issue of control before the jury, but the quetion propounded does not go far enough. Counsel for the appellant should have followed with a direct question relating to consumption of intoxicating beverages which might have brought him within the issue relevant to the question of control; also, there is nothing in the record revealing that the trial court refused to admit evidence of intoxication.

We further feel that the issue of driving under the influence of intoxicating liquor was withdrawn from the case by the trial court, irrespective of whether the appellant classified that issue under a specific allegation of driving under the influence or under a more general allegation of failure to control; and that the appellant was not prevented in any manner from attempting to establish other facts which relate to his charge of failure to control.

We find no error on the part of the trial court in preventing the appellant from unfairly attempting to prejudice the jury, either in a direct or indirect manner. It is for this precise reason that the trial courts are given broad discretion in limiting the testimony of witnesses. In Wigmore, Evidence (3rd edition), § 1864(b), p. 491, is contained the following statement:

'* * * if certain evidential material, having a legitimate probative value, tends nevertheless to produce also, over and above its legitimate effect, an unfair prejudice to the opponent * * * there is good ground for excluding such evidence, unless it is indispensable for its legitimate purpose.' (Emphasis supplied.)

Appellant failed to introduce any proof whatsoever of any drinking of intoxicating beverages by the appellee.

It is also well established that a ruling of a trial court is presumed to be correct and will be sustained if there is any valid reason therefore, regardless of the objection advanced at the time of trial. Eckman v. Funderburg (1915), 183 Ind. 208, 108 N.E. 577; Abshire v. Williams et al. (1881), 76 Ind. 97; Haas v. C. B. Cones & Son Mfg. Co. (1900), 25 Ind.App. 469, 58 N.E. 499.

We find no abuse of discretion in sustaining appellee's objection to the question as set out and discussed herein.

Appellant's Specification of Error No. 3 maintains that the trial court committed reversible error in allowing the use of opinion evidence by an expert witness called by appellee. Appellant argues that a party seeking the introduction of expert opinion by way of hypothesis is required to base the hypothetical opinion of the expert upon facts introduced previously into the evidence. 13 I.L.E. Evidence, § 304, p. 175, reads as follows:

'Expert witnesses generally may express their opinion not only upon facts within their personal knowledge, but upon assumed facts supported by the evidence in the case and stated to them by way of hypothetical questions. These facts must still be based upon facts previously appearing at the trial, however. * * * The expert's opinion must be based upon facts which the evidence in the case tends to prove. * * *' (Emphasis supplied.)

Here again the appellant appears to ignore the evidence most favorable to the appellee. The expert witness in question only testified as to what possibly could happen under certain circumstances. He testified to the intricate details of the operating and braking systems of Victor golf carts, and certainly the trial court was justified in permitting an expert to explain the mechanical workings of the braking system and that such a failure to which appellee testified was mechanically possible. Said expert witness was a person skilled in that field who had personal knowledge of other emergency situations similar to that which confronted the appellee. The witness was not asked for an opinion as to the ultimate fact of what caused the accident. He...