Stanley v. Johnson

Decision Date25 October 1979
Docket NumberNo. 3-1078A288,3-1078A288
PartiesLouis C. STANLEY, as Guardian for Edgar Leo Stanley, Appellant (Plaintiff Below), v. David L. JOHNSON and LaPorte County Farm Bureau Co-Operative Association, Appellees (Defendants Below).
CourtIndiana Appellate Court

Donald C. Swanson, Jr., Fort Wayne, Richard G. French, Pro Hac Vice, Chicago, Ill., for appellant; Michael C. Kominiarek, Chicago, Ill., of counsel.

R. Kent Rowe, South Bend, Leon R. Kaminski, Thomas D. Sallwasser, LaPorte, for appellees.

STATON, Judge.

Louis C. Stanley, as guardian for Edgar Leo Stanley, filed an action for damages against the LaPorte County Farm Bureau Co-operative Association (LaPorte) and David L. Johnson (Johnson), its agent and employee. The action arose as the result of an automobile accident in which Stanley sustained severe and permanent injuries. The jury returned a verdict for Stanley and awarded him $570,000.00 in damages. Judgment was entered accordingly.

On appeal, Stanley raises three issues for our consideration:

(1) Did the trial court commit reversible error in allowing LaPorte and Johnson to admit liability and in granting their motion in limine?

(2) Did the verdict adequately compensate Stanley for his injuries?

(3) Were the damages inadequate because of confusing and misleading instructions to the jury?

We affirm.

The facts relevant to our disposition of the case indicate that Stanley was severely injured in an accident in which his vehicle collided with a semi-trailer truck driven by Johnson, on behalf of LaPorte. Due to the seriousness of Stanley's injuries, his son Louis was appointed as guardian of the estate.

On April 21, 1978, a pre-trial order in which LaPorte and Johnson denied any liability, was filed. According to this order, the contested issues of fact at trial were to be whether LaPorte and Johnson were liable, and, if so, the extent of damages. Although they had denied liability throughout the nearly two years of pre-trial proceedings, they were allowed to admit it on the first day of the trial. Johnson and LaPorte neither amended the pre-trial order nor filed an answer admitting liability. At the time of this admission, the court also granted their motion in limine. It barred Stanley from introducing into evidence certain facts surrounding his accident.

On appeal, Stanley urges us to find that the trial court committed reversible error when it allowed Johnson and LaPorte to admit liability in violation of the pre-trial order. It provided, in part:

"Hereafter, this Order will control the course of the trial and may not be amended except by the parties and the Court or by Order of the Court to prevent manifest injustice. The pleadings are deemed merged herein."

Stanley contends that there was no showing by Johnson and LaPorte that the pre-trial order should have been modified to "prevent manifest injustice." He argues that "trial strategy" was the only reason for their admission of liability on the first day of the trial.

Despite the interesting nature of this question, we decline his invitation to address it. Stanley's trial began on May 8, 1978. Five days earlier, he had received a letter from LaPorte and Johnson which admitted liability and presented a proposed preliminary instruction to that effect to be read to the jury. LaPorte and Johnson orally admitted negligence to the court on May 8th. At the same time, the court granted their motion in limine which barred Stanley from introducing many of the circumstances surrounding his accident into evidence. Stanley did not object. A preliminary instruction which admitted that Johnson was negligent in the operation of the semi-truck and that his negligence proximately cause injury to Stanley was then read to the jury in the opening hours of the trial. Again, Stanley did not object. In fact, it wasn't until the close of the third day of the trial, that Stanley chose to place his objections "on the record" by formally objecting to LaPorte's and Johnson's admissions of negligence and the court's granting of their motion in limine.

In order to preserve a question on appeal, a proper objection must be made At the time the evidence is offered. Pointon v. State, Ind.,372 N.E.2d 1159. A party waives any error if he fails to present A timely objection in the court below to the giving of allegedly misleading, improper or insufficient preliminary instructions. Weenig v. Wood (1976), Ind.App., 349 N.E.2d 235. Accordingly, we deem this issue waived.

Stanley next contends that the verdict was inadequate to compensate him for his present injuries as well as past and future expenses and losses. We disagree. Reversal of a verdict, being appealed on the basis of inadequacy of damages, is not justified if the amount of damages is within the scope of evidence before the trial court. Kirk v. Harris (1977), Ind.App., 364 N.E.2d 145. In determining whether a verdict is inadequate, we will use those same rules which govern our review of excessive verdicts. Wickizer v. Medley (1976), Ind.App., 348 N.E.2d 96. The Wickizer Court, quoting Henschen v. New York Cent. R. Co. (1945), 223 Ind. 393, 60 N.E.2d 738, set forth the following standard:

" 'Aside from cases where damages are a mere matter of computation this court will reverse a cause for excessive damages only where, after examining the evidence concerning the injuries, it is apparent that the amount of damages assessed by the jury is so large as to indicate that the jury in assessing the amount was motivated by prejudice, passion, partiality or corruption, or considered some improper element."

" 'In a case of this kind the extent of the compensation is largely a jury question and does not admit of fixed rules and mathematical precision.' "

348 N.E.2d at 97.

In the present case, the amount of damages awarded by the jury to Stanley is not so small as to imply that the jury was "motivated by prejudice, passion, partiality or corruption, or considered some improper element." Stanley is asking us to re-weigh the evidence. This we will not do. In our review, we will look only to that evidence and the reasonable inferences drawn therefrom which support the trial court's judgment.

Stanley finally complains that his damages were inadequate because of confusing and misleading instructions to the jury. In bringing this issue to the Court's attention, Stanley makes little effort to comply with Ind. Rules of Procedure, Appellate Rule 8.3(A)(7) as it relates to...

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    ...verbatim objections could be found. We make this second observation only in light of our Third District's holding in Stanley v. Johnson, (1979) Ind.App., 395 N.E.2d 863, where it reviewed the adequacy of an instruction, despite appellant's failure to set out his at-trial objections Ind.Rule......
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