Piwowar v. Washington Lumber & Coal Co.

• Decision Date: 12 June 1980
• Docket Number: No. 3-778A177,3-778A177
• Citation: 405 N.E.2d 576
• Parties: Theodore PIWOWAR and Esther Piwowar, Appellants (Plaintiffs Below), v. WASHINGTON LUMBER & COAL COMPANY; Wheeling Corrugating Company, a Division of Wheeling Steel Corporation; and Wheeling-Pittsburgh Steel Corporation, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 576

405 N.E.2d 576

Theodore PIWOWAR and Esther Piwowar, Appellants (Plaintiffs Below), v. WASHINGTON LUMBER & COAL COMPANY; Wheeling Corrugating

Company, a Division of Wheeling Steel Corporation;

and Wheeling-Pittsburgh Steel

Corporation, Appellees

(Defendants Below).

No. 3-778A177.

Court of Appeals of Indiana, Third District.

June 12, 1980.

Rudolph Tanasijevich, Robert G. Berger, Hammond, for appellants.

Karen L. Hughes, Larry G. Evans, Hoeppner, Wagner & Evans, Valparaiso, for appellee Washington Lumber & Coal Co.

John Kappos, Kappos & Kautz, Merrillville, for appellees Wheeling Corrugating Co. and Wheeling-Pittsburgh Steel Co.

HOFFMAN, Judge.

The plaintiff in this case, Mr. Piwowar, is an experienced carpenter residing in Hammond, Indiana. On September 9, 1971, he was called to do some emergency work at an office in East Chicago which had been burglarized. In the course of his work, it was necessary for Mr. Piwowar to make a new frame for a door. He indicated to the owner of the business, Mr. Cacich, that he would require cut nails to attach the wood to the masonry. Since Mr. Piwowar did not have the nails with him, Mr. Cacich purchased some nails from Washington Lumber Company for Mr. Piwowar to use. After the first four or five nails were inserted, Mr. Piwowar struck the next nail and the head of the nail came off, hitting him in the right eye and causing permanent injury.

Mr. and Mrs. Piwowar filed this suit against Washington Lumber Company (Washington), the retail store which sold the nails, and Wheeling Corrugating Company, a division of Wheeling Steel Corporation, and Wheeling-Pittsburgh Steel Corporation (Wheeling), the manufacturer of the nail. Numerous other defendants were dismissed from the action prior to trial. Plaintiffs' case is based on three theories of liability: negligence, strict liability, and implied warranty. Both defendants filed motions for change of venue from the county. Plaintiffs responded with motions to strike the defendants' requests but failed to seek a hearing on the issue. As a result, no evidence was presented to support the plaintiffs' motion to strike.

The case was venued to Porter Superior Court and tried to a jury on February 15, 1978. The jury returned its verdict against the plaintiffs and in favor of the defendants. Judgment was entered accordingly.

In this appeal the plaintiffs raise the following issues:

(1) Is the rule providing for change of venue from the county without cause constitutional?

(2) Should exhibits be admitted into evidence when they contain notations by a person who did not testify?

(3) Did the trial court abuse its discretion in making certain evidentiary and procedural rulings?

(4) Should the trial court have permitted objections to jury instructions to have been made and taken by the court reporter before cause was submitted to the jury?

(5) Should the court have permitted the jury and bailiff to take exhibits into the jury room for examination?

(6) Did the court err in giving and refusing instructions?

Plaintiffs present a lengthy argument challenging the constitutionality of Ind. Rules of Procedure, Trial Rule 76, which allows an automatic change of venue with no showing of cause. The appellants charge that this rule violates the plaintiffs' right to conduct litigation without unreasonable burdens, the right to free access to the courts and the right to a trial by a jury of their peers. These rights are founded in the United States Constitution and the Indiana Constitution. The pertinent portion of TR. 76 states:

"(1) In all cases where the venue of a civil action may now be changed from the judge or the county, such change shall be granted upon the filing of an unverified application or motion without specifically stating the ground therefor by a party or his attorney. . . ."

Initially, it should be noted that the appellants have failed to provide any factual evidence to support this allegation. They merely request the court to take judicial notice of such facts as the racial composition of juries in Lake County and the surrounding area, the economic status of various litigants, the underlying reasons for settlement of cases which have been venued from Lake County and so forth. Obviously, these are extremely complex factual issues which require a fair degree of evidentiary support. Notwithstanding the lack thereof, this Court will discuss the issues raised in appellants' brief so that these legal questions may be settled.

Appellants' first two charges, concerning an unreasonable burden and free access to the courts, allege a deprivation of due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article 1, Section 12 of the Indiana Constitution. Plaintiffs contend that an unreasonable and unjustified burden is created by the additional cost and inconvenience resulting from a venue change and the consequent delay in litigation when the case is transferred. In the instant case, an economic burden arose from the payment of additional attorney's fees and travel expenses for witnesses, counsel and the plaintiffs. Plaintiffs also argue that application of the rule pressures many parties to settle claims based on the change of venue burdens rather than the merits of the case.

For support, plaintiffs rely primarily on the cases of Boddie v. Connecticut (1971) 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 and Griffin v. Illinois (1956) 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. Both of these cases involved a denial of individual freedom due to the indigency of the parties. In Boddie, the court characterized a sixty dollar filing fee for a divorce action as a denial of due process when required of indigent parties. Important in that case were the facts that 1) a judicial divorce action is the sole means of terminating a marriage and 2) the filing fee requirement completely foreclosed the parties' access to the courts. The Griffin case involved a criminal matter in which a convicted indigent defendant was denied appellate review solely because of his inability to pay for it.

The present case differs significantly. First, plaintiffs are not denied complete access to the courts when TR. 76 is invoked. They may be encumbered with additional inconvenience and expense but the opportunity to be heard in a court of law is not extinguished. Secondly, Boddie and Griffin concern questions of individual freedom and liberty. This case asserts an interest in property based on a cause of action arising from a violation of tort law. The due process requirements for the protection of personal liberty do not automatically apply to cases involving property interests. As the United States Supreme Court held in Arnett v. Kennedy (1974) 416 U.S. 134, at 155, 94 S.Ct. 1633, at 1644, 40 L.Ed.2d 15:

"The types of 'liberty' and 'property' protected by the Due Process Clause vary widely, and what may be required under that Clause in dealing with one set of interests which it protects may not be required in dealing with another set of interests.

" 'The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.' " (Citation omitted)

The interest of the state to be protected by the adoption of this rule must be balanced against the harm to the plaintiffs. Trial Rule 76 is designed to provide a fair and impartial trial to all parties and to prevent protracted litigation. City of Fort Wayne v. State ex rel. Hoagland (1976) Ind.App., 342 N.E.2d 865; State ex rel. Yockey v. Sup. C. et al. (1974), 261 Ind. 504, 307 N.E.2d 70; Gulf Oil Corp. v. McManus (1977), Ind.App., 363 N.E.2d 223.

These essential elements of our judicial system which underlie TR. 76 are not outweighed by the inconvenience and expense to the plaintiffs which may be caused by a venue change.

Therefore, TR. 76 does not violate the requirements of due process by imposing unreasonable burdens on the plaintiffs or by denying them access to the courts. Our judicial structure may, at times, be complex, burdensome, expensive and subject to occasional abuse; however, the mechanisms of our judicial machinery have been distilled over hundreds of years to insure and protect the rights of our individual citizens. Our courts endeavor to fulfill this obligation impartially and equally for all. Trial Rule 76 is a procedural device which enhances the efficiency of our judicial system.

Plaintiffs next allege that a change of venue without cause violates the right to a trial by a jury of peers in that it permits an intentional systematic exclusion of minority groups. This exclusion is created by the transfer of cases involving minority parties to adjacent counties in which very few minority persons reside. Consequently, the juries in these neighboring counties do not have a substantial representation of minority groups and this, the plaintiffs argue, denies a minority plaintiff the right to a fair jury.

The absence of any factual proof on this issue requires the plaintiffs to urge this Court to take judicial notice of the demographic structure of Lake, Porter, Jasper and Newton Counties. Counsel for the plaintiffs also fails to consider that, although his argument is based on a denial of the rights of minorities, the particular plaintiffs in this case are not members of a minority group. Mr. Piwowar is, in fact, a 60-year-old white male.

The basic premise of appellants' argument is that a change of venue from Lake County forms an intentional system of exclusion. In support, numerous United States Supreme Court cases are reviewed which strike down unfair jury selection systems. Turner v. Fouche (1970) 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567; Smith v. Texas (1940) 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; and Patton v. Mississippi (1947) 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 among others. Each of these cases dealt with the specific procedure of jury selection. In the present case,...