Newell v. Walker

• Decision Date: 12 June 1985
• Docket Number: No. 2-1083A373,2-1083A373
• Parties: Becky A. NEWELL, Appellant (Defendant Below), v. James M. WALKER, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1246

478 N.E.2d 1246

Becky A. NEWELL, Appellant (Defendant Below), v. James M. WALKER, Appellee (Plaintiff Below).

No. 2-1083A373.

Court of Appeals of Indiana,

Second District.

June 12, 1985.

Michael J. Stapleton, Patricia P. Truitt, Ball, Eggleston, Bumbleburg & McBride, Lafayette, for appellant.

Phillip R. Smith, Smith, Helmerick & Smith, Lafayette, for appellee.

SULLIVAN, Judge.

James Walker (Walker) suffered an adverse jury verdict in his claim against Becky Newell (Newell) for personal injuries incurred after his motorcycle and her car collided. Subsequently he filed, and the trial court granted, a motion to correct errors based on newly discovered evidence. Newell now appeals the grant of a new trial.

We affirm.

Newell presents four issues which may be stated as follows:

(1) Whether the submission of an affidavit of an ex-juror stating that her vote would have been different had the newly discovered evidence been before her at trial was an improper attempt to impeach the jury's verdict which precluded the trial judge from granting Walker a new trial.

(2) Whether the newly discovered evidence was in fact cumulative, and, therefore, could not justify a new trial.

(3) Whether the trial court committed reversible error by failing to specifically state on the record that the evidence was not cumulative.

(4) Whether the use of affidavits is insufficient to support a motion to correct errors because it makes careful judicial scrutiny of the new evidence impossible.

The accident occurred on May 16, 1981. Both Newell and Walker were proceeding northbound on State Road 43 approaching the automobile traffic signal where Elston Road and State Road 43 intersect near Lafayette. It was shortly after 7:00 P.M., the roads were paved and dry, and the day was clear. Newell was driving her dark-colored Buick and Walker was driving his Harley Davidson motorcycle. Beyond these facts the parties' versions of the accident differ significantly.

Walker was on his way home to take his wife out to dinner after showing some friends some recent changes he had made on his motorcycle. Walker contends that he was driving north on State Road 43 when a friend, Larry Potts (Potts), also riding a motorcycle, pulled onto the road and drove beside him. Walker was driving on the left side and Potts on the right with about a car width between them. At this time a dark-colored car passed them, crossed the double yellow lines, pulled back in front of them, and stopped, suddenly, for the red light. Potts dropped back to give Walker room to maneuver. Walker braked while he veered to the right in order to avoid any oncoming traffic, hit his left shin against Newell's car and went out of control. Walker landed near the front door of Newell's car and his motorcycle landed in the middle of the intersection.

Newell was on her way to a baseball game with her son and daughter. She contends that Walker pulled onto State Road 43 behind her some distance before the Elston Road intersection. She noticed Walker because he repeatedly drove up close to her car and then dropped back again. She slowed for the light and heard a thump against the back of her car which turned out to be Walker. She contends that Walker was either distracted by something or was trying to beat the red light, when he hit the back of her car and went out of control.

Walker suffered a broken leg as a result of the accident which has since caused him to lose his job. The leg failed to heal properly, resulting in considerable pain and numerous medical procedures, surgeries and hospital stays.

At trial Walker testified in support of his own version of the facts and Newell and her children testified in support of hers. Potts, Walker's friend, also testified that a dark-colored car squeezed Walker and himself off the road. However, Potts admitted that he was looking straight ahead at the time and that his primary concern was for his own safety. Potts could not remember seeing any cars behind Walker prior to pulling out onto State Road 43. Potts' recollection, however, was not entirely consistent. Potts' wife was on Potts' motorcycle sitting behind him. She testified that the accident happened so quickly she really did not see anything but that she seemed to remember a car zooming past them. The other witnesses testified as to what they saw at the intersection, but did not see what happened before. Their testimony, therefore, neither supported nor refuted either Walker or Newell's version.

After the conclusion of the trial, one of the jurors, Alice Everhart (Everhart), served on a different jury. She discussed Walker's case with Elliott, a juror on the second case. Elliott stated that she had viewed the entire accident from the first car stopped at the traffic light on State Road 43, headed south. Furthermore, she corroborated Walker's story that Newell had passed Walker and then stopped suddenly, causing Walker to go out of control. Everhart called Walker's attorney to tell him of this newly found witness.

Walker's attorney thereafter filed a motion to correct errors and attached three affidavits. The first was from the attorney and explained his due diligence in preparing Walker's case. The second was from the newly found witness, Elliott, stating what she saw of the accident and explaining that she had not informed the police that she was a witness because someone at the scene told her they had enough witnesses. The third was from Everhart, the juror from Walker's case, stating that her decision would have been different had the newly discovered witness testified.

Walker submitted Everhart's affidavit to support his claim that the newly discovered witness's testimony would probably have produced a different result at the trial. Newell contends that the affidavit served to impeach the jury's verdict and, therefore, was improperly submitted to the judge requiring a reversal of the judge's decision.

The prohibition against impeaching a jury verdict is both time honored and well reasoned. As was stated in Stinson v. State (1974) 262 Ind. 189, 313 N.E.2d 699, 704:

"If this Court were to permit individual jurors to make affidavits or give testimony disclosing the manner of deliberation in the jury room and their version of the reasons for rendering a particular verdict there would be no reasonable end to litigation. Jurors would be harassed by both sides of litigation and find themselves in a contest of affidavits and counter-affidavits and arguments and re-arguments as to why and how a certain verdict was reached. Such an unsettled state of affairs would be a disservice to the parties litigant and an unconscionable burden upon citizens who serve on juries."

This rule applies with equal weight when the affidavits are introduced in an attempt to show that newly found evidence might well produce a different result upon retrial. Shaffer v. State (1983) 1st Dist., Ind.App., 453 N.E.2d 1182, trans. denied.

Had Walker presented only Everhart's affidavit to the trial judge we would be required to reverse the trial judge's decision. For example, in Stauffer v. Lothamer (1981) 4th Dist., Ind.App., 419 N.E.2d 203, the defendant challenged a jury verdict alleging juror misconduct. The only evidence presented in support of the defendant's motion was the deposition of a prior juror taken in open court before the trial judge. The court held that this constituted an impermissible impeachment of the jury verdict and denied the defendant a new trial. In Shaffer v. State, supra, our First District held that the trial judge had not committed error by refusing to consider the affidavit of a prior juror which had been...