Terre Haute First Nat. Bank v. Stewart

• Decision Date: 19 October 1983
• Docket Number: No. 1-1282A351,1-1282A351
• Citation: 455 N.E.2d 362
• Parties: TERRE HAUTE FIRST NATIONAL BANK, as Guardian of the Estate of Thomas Soules, a minor, Plaintiff-Appellant, v. Walter STEWART, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 362

455 N.E.2d 362

TERRE HAUTE FIRST NATIONAL BANK, as Guardian of the Estate of Thomas Soules, a minor, Plaintiff-Appellant, v. Walter STEWART, Defendant-Appellee.

No. 1-1282A351.

Court of Appeals of Indiana First District.

Oct. 19, 1983.

Buena Chaney, Mann, Chaney, Johnson & Goodwin, Terre Haute, for plaintiff-appellant.

William W. Drummy, Patrick, Gabbert, Wilkinson, Goeller & Modesitt, Terre Haute, for defendant-appellee.

ROBERTSON, Presiding Judge.

The plaintiff-appellant, Terre Haute First National Bank, as guardian of the minor Thomas Soules (Soules), is appealing a judgment in favor of the defendant-appellee, Walter Stewart.

Although we find error, we determine it to be harmless and accordingly affirm. ¹

This cause of action was brought as a result of Soules sustaining injuries when he was struck by an automobile driven by Stewart. A review of the basic facts show that Soules was operating a motorized bicycle (moped) southbound on or along the side of Clinton Road (U.S . Highway 41) north of Terre Haute in Vigo County, Indiana. Stewart, also southbound, drew alongside Soules and at that time, Soules veered left at about a forty-five degree angle into the path of Stewart's automobile. Soules, then 13 years old, was struck by the front of Stewart's automobile and sustained serious injuries.

ISSUE I

One of Soules's allegations of Stewart's negligence was that Stewart had an impaired reaction time because of injuries sustained in prior automobile accidents, and, therefore, was incapable of driving his automobile in a reasonably safe manner. This point was being explored during the taking of the deposition of Stewart's expert medical witness. During cross-examination the following colloquy occurred:

Q. What we are talking about in this case, Dr. Sison, is not a second but a fraction of a second. The evidence will be that the contact was made with the left front of the Thunderbird automobile involving only the frame around the license plate. No other scratches, no other damage to the Thunderbird at all, and the only damage to the moped was to the rear fender. A thin fender approximately two inches wide was bent to the side. Apparently, the Thunderbird was almost to a dead stop at the time of impact. So we're talking about the fine, close reaction time of the driver of the Thunderbird, the difference between his missing the boy and hitting the boy. Now a person, Doctor, in your judgment, that is wracked with pain of his cervical spine and back, who has complained of tremors in his hand, who has complained of the other things that we've been talking about here, could his reaction time have been slowed down that degree that made the difference between having the crash and not having the crash?

MR. DRUMMY: Just wait a second. I'll object to the form of the question, it's not couched in terms of reasonable medical certainty.

A. It's possible.

Q. Alright, in reasonable medical certainty it is possible, is that correct?

A. That's correct.

Notwithstanding the fact that the second question seems to have cured the purported deficiency, the trial court subsequently sustained the objection relying upon Palace Bar, Inc. v. Fearnot, (1978) 269 Ind. 405, 381 N.E.2d 858. Palace Bar held, in essence, that a doctor's testimony can only be considered evidence when it is stated that the conclusion given is based upon "reasonable medical certainty" that a fact is or is not true.

Soules argues that our supreme court backed away from that position in the case of Noblesville Casting Division of T.R.W., Inc. v. Prince, (1982) Ind., 438 N.E.2d 722, where it stated that no threshold level of certainty is required as a prerequisite of admissibility of an expert's opinion.

Bearing in mind that the question is one of admissibility, as opposed to the weight to be attached to such evidence, the following from Colaw v. Nicholson, (1983) Ind.App., 450 N.E.2d 1023 at 1030 is pertinent:

Palace Bar may have been modified in Noblesville Casting Division of TRW, Inc. v. Prince, (1982) Ind., 438 N.E.2d 722 ... Noblesville Casting held that expert medical opinion couched in terms less than that of a reasonable degree of medical certainty; such as "possible", "probable," or "reasonably certain," are admissible and do have probative value. However, such medical testimony standing alone, unsupported by other evidence, is not sufficient to support a verdict, as was stated in Palace Bar. It is for the jury to determine the weight to be accorded the testimony.

Justice Pivarnik, who wrote the opinion in Palace Bar, concurred only in the result reached in Noblesville Casting. He dissented on the conclusion reached by Justice Hunter that expert opinion based upon "possibilities" is probative evidence. Justice Given concurs in Justice Pivarnik's opinion; Justice Prentice concurred with Justice Hunter. Justice DeBruler did not participate . The precedential value of Noblesville Casting is thus in doubt.

Although the foregoing relates to the giving of an instruction, we believe that the principle is also applicable to this issue. We believe (until told the contrary) that it was error to exclude the evidence in question, because Palace Bar and Noblesville Casting, when read in conjunction, tend to indicate evidence of less than a reasonable medical certainty is admissible, even though evidence of a degree less than a reasonable medical certainty, standing alone, cannot support a verdict. It was error to exclude this evidence.

This is not to say, however, that the exclusion amounts to reversible error. Stewart argues that the evidence is cumulative and no reversible error attaches to its exclusion. See: Ballard's Estate v. Ballard, (1982) Ind.App., 434 N.E.2d 136. The record discloses other admitted testimony by this witness, as well as another physician, on the same theme. This, in our opinion, serves to cure any alleged deficiency.

ISSUE 2

In much the same vein, Soules argues error in not giving his tendered instruction which reads:

Whether or not the normal faculties, either of perception, or physical ability, or of reaction time of a person involved in the occurrence were impaired, so that at the time and place in question he no longer had the capacity to exercise the care and caution that an ordinary prudent person would exercise under like or similar circumstances, is a proper question for the jury to consider. Such impairment is not an excuse for failure to act as a reasonably careful person would act.

Stewart counters with the argument that the subject matter was covered by other instructions.

The trial court gave an instruction generally defining what negligence on Stewart's part would be and an instruction defining reasonable care. Additionally, the court gave Soules tendered instruction which stated:

The Plaintiff has the burden of proving the following propositions:

First Proposition: That the Defendant was negligent in at least one of the following particulars:

* * *

* * *

3. That he was driving an automobile while he was physically incapable of controlling or driving his automobile, in a reasonable, safe manner, in the traffic conditions existing at the time and place, because of prior injuries to his spine, nerves and muscles.

When the above instructions are compared to the excluded instruction, we are of the opinion that the trial court was justified in the refusal for the reason that it was repetitive. Coffman v. Austgen's Elec., Inc., (1982) Ind.App., 437 N.E.2d 1003.

ISSUE 3

Soules commenced this action with a complaint containing two rhetorical paragraphs which was subsequently expanded into eleven allegations or contentions of negligence on the part of Stewart. At the conclusion of Soules's case in chief, Stewart moved for a judgment on the evidence. The trial court partially granted the motion by holding that there was not enough evidence for contentions 1, 3, and 8 to go to the jury; that contentions 4 and 8 were repetitious and duplicative; and, that contention 10 failed to allege a specific act or acts of negligence. As a result, contentions 1, 3, 4, 8, and 10 were withdrawn from the jury. Soules now argues that error existed in the ruling as it relates to contentions 4, 8, and 10. These contentions are:

4. He failed to take reasonable precautionary measures in driving his automobile in approaching and passing a child on or near the highway at that time and place.

8. He failed to reduce the speed of his automobile or take any precautionary action upon entering an area known by him to be a condensed residential area, with many children present near and using said highway, at a time of the day when traffic and use of the highway in that area was heavy, and at a time of the year when people and children were out of their homes pursuing recreation, physical activities, and moving about and across said highway, with vehicles, animals and afoot, and by failing to reasonably reduce the speed of his automobile he exposed said children and persons, including plaintiff, to unreasonable risk of being hit by his automobile.

10. He failed to exercise reasonable care under the conditions and circumstances then and there existing.

The office of a T.R. 50(A) motion is to test the sufficiency of the evidence. The standard to be used by the trial court on ruling on a motion for judgment on the evidence is that it should be denied unless there is a total absence of evidence or reasonable inference on at least one essential element of the plaintiff's case. When assessing the evidence for the purpose of a T.R. 50(A) motion, it should be viewed in a light most favorable to the party opposing the motion. Dibortolo v. Metropolitan School Dist. of Washington Twp., (1982) Ind.App., 440 N.E.2d 506.

The trial court's ruling and the argument by Soules and Stewart on this issue are somewhat confusing. We perceive error in the trial court's ruling that certain contentions were repetitious, duplicative or not specific for the...