Wagner v. Riley

• Decision Date: 19 November 1986
• Docket Number: No. 20A03-8603-CV-75,20A03-8603-CV-75
• Citation: 499 N.E.2d 1155
• Parties: Timothy A. WAGNER, Appellant (Plaintiff Below), v. Josephine RILEY, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 1155

499 N.E.2d 1155

Timothy A. WAGNER, Appellant (Plaintiff Below), v. Josephine RILEY, Appellee (Defendant Below).

No. 20A03-8603-CV-75.

Court of Appeals of Indiana Third District.

Nov. 19, 1986.

Rehearing Denied Jan. 21, 1987.

Charles C. Wicks, Craig A. Rieff, Elkhart, for appellant.

Robert T. Sanders, III, Thomas R. Hamilton, Daniels, Sanders & Pianowski, Elkhart, for appellee.

STATON, Presiding Judge.

Timothy Wagner was injured when his car collided with a car driven by Josephine Riley. A jury returned a verdict in favor of Wagner and awarded him damages of ten thousand dollars ($10,000.00). Wagner appeals claiming the damages are inadequate and represent a compromise verdict which was the result of juror misconduct. Our resolution of this appeal focuses on the following issues:

I. May the jury's verdict be impeached by the affidavit of the bailiff who purportedly overheard remarks of a juror?

II. Did the trial court err when it ruled the prayer for damages in Wagner's complaint inadmissible for impeachment purposes?

III. Were the damages awarded inadequate as a matter of law?

We follow a strict standard when reviewing a damage award claimed to be excessive or inadequate. A verdict will be reversed only when it is apparent from a review of the evidence concerning the injuries that the amount of damages assessed by the jury is so small or so great as to indicate that the jury was motivated by prejudice, passion, partiality or corruption or considered an improper element. Faulk v. Chandler (1980) Ind.App., 408 N.E.2d 584, 586. Damages will not be deemed the result of improper considerations unless the size of the award cannot be explained on any other reasonable ground. Crump v. Rhodes (1986) Ind.App., 488 N.E.2d 741, 743, trans. pending. Wagner's burden, therefore, is not merely to show alleged juror misconduct, but to demonstrate that the award cannot be sustained on any other interpretation of the evidence.

Wagner's allegation of jury misconduct is predicated on a series of events which he claims leads inescapably to the conclusion that the verdict was a compromise. His hypothesis begins with defense counsel's attempt to impeach him. On direct examination, Wagner testified that he had remarked to one of his doctors, "Well, I don't have a lawyer, and I have this constant pain. I'm not out for the big bucks." On cross examination Wagner was asked if in his complaint he had asked for half a million dollars. Wagner's counsel objected and the trial judge sustained the objection, instructing the jury to disregard the question. With his motion to correct errors Wagner submitted the affidavit of the bailiff in charge of the jury. The bailiff stated that approximately thirty (30) minutes after the jury retired to deliberate he was called into the jury room and told that the jurors were deadlocked 5 to 1 and that the one juror would not budge from his position. Thirty minutes later the bailiff was summoned to the jury room and told that the jury had reached a verdict. While outside the jury room, just before the jurors returned to the court room, the bailiff heard a voice he recognized as that of the foreman say, "Once I heard that he was asking for $500,000.00, that was it for him."

Wagner argues that the foregoing events, coupled with what he claims is an unjustifiable damage award, prove that the foreman improperly disregarded the court's admonition regarding the amount of the prayer. The events further prove that the foreman was biased against Wagner, and they give rise to the inference that the foreman was the holdout juror. The obvious conclusion, according to Wagner, is that the jury compromised to accommodate him.

Riley counters that the trial court should not have excluded the question about the prayer amount, because it was proper impeachment and that, in any event, the jury's verdict may not be impeached by the bailiff's affidavit merely repeating statements of the jurors.

I. Exclusion of Prayer Amount

Upon Riley's offer to prove, the trial court found that the proffered testimony did not constitute a judicial admission, was an improper attempt to impeach, and that the pleadings were supplanted by the pre-trial order and were, therefore, irrelevant. Riley argues that the prayer amount of $500,000.00 constituted an admission by Wagner and was inconsistent with his earlier statement that he was "not out for big bucks," therefore, it was admissible to impeach Wagner.

In general, any statement or admission against interest, wherever made, is admissible at trial. Rediehs Express, Inc. v. Maple (1986) Ind.App. 491 N.E.2d 1006, 1009, trans. pending. However, a party cannot take advantage of an admission in the pleadings of his adversary where he has denied the truth of the allegation and joined issue upon it ... even though the denial be an indirect one. Brown v. Grzeskowiak (1951) 230 Ind. 110, 101 N.E.2d 639, 645; Lamb v. Thieme (1977) 174 Ind.App. 287, 367 N.E.2d 602, 605. The amount of damages was very much at issue in this case, therefore we do not believe the amount of the prayer was a proper basis for impeachment. Furthermore, the relevancy of evidence is left to the sound discretion of the trial court which determines whether the evidence in question has a logical tendency to prove a material fact. Kennedy v. St. Joseph Mem. Hosp. (1985) Ind.App., 482 N.E.2d 268, 275. We find no abuse of discretion in the exclusion of the tendered evidence.

II. Impeachment of the Verdict

The impeaching evidence having been properly excluded, Wagner argues the bailiff's affidavit shows the jury foreman ignored the court's admonition, was, therefore, biased against Wagner and improperly influenced the jury to compromise on the damage award. Setting aside for the moment Wagner's assertion that the damages were improperly low, we address the issue of whether the jury's verdict may be impeached by the bailiff's affidavit relating remarks he overheard a juror make.

It is settled beyond dispute that a verdict may not be impeached by affidavits or testimony of the jurors themselves. Stauffer v. Lothamer (1981) Ind.App., 419 N.E.2d 203; State v. Normandy Farms (1980) Ind.App., 413 N.E.2d 268; Estate of Brunson v. White (1973) 157 Ind.App. 211, 299 N.E.2d 186. Nevertheless, Wagner argues that a third party's affidavit may be offered to document statements of jurors which reveal bias or prejudice which may have affected the verdict. We do not believe that to be the rule in Indiana. In Stanley v. Sutherland (1876) 54 Ind. 339 the Court considered the affidavit of a third party alleging misconduct on the part of the jury and upheld the overruling of a motion for a new trial based on the affidavit.

The affiant does not state how he obtained the information of the alleged misconduct of the jury. ... If it came to him from some of the jurymen, it could not be received, for it has long been settled in this state that the affidavits of jurors cannot be received to impeach their verdict; much less could their statements be received at second hand.

54 Ind. at 356. The anomaly of permitting jurors' statements to be introduced through a third party was discussed further by the Court in Hutchins v. State (1898) 151 Ind. 667, 52 N.E. 403. There the Court said,

And as such statement, verified or unverified, could not be received from the juror to impeach the verdict or the conduct of the jury in making it, such statement cannot be received from one deriving his knowledge from a juror (at second hand); otherwise, the inhibition of the law against jurors impeaching their verdict is...