Walczewski v. Wright, 3-1176A283
| Decision Date | 20 August 1979 |
| Docket Number | No. 3-1176A283,3-1176A283 |
| Citation | 181 Ind.App. 615,393 N.E.2d 228 |
| Parties | Audrey WALCZEWSKI, Plaintiff-Appellant, v. Ruben W. WRIGHT, Defendant-Appellee. |
| Court | Indiana Appellate Court |
Robert F. Gonderman, South Bend, for plaintiff-appellant.
John T. Mulvihill, Thornburg, McGill, Deahl, Harman, Carey & Murray, South Bend, for defendant-appellee.
Plaintiff commenced an action to recover for personal injuries sustained in an automobile collision with a vehicle operated by the defendant. In addition to compensatory damages, she sought punitive damages on the basis that her injuries were caused by defendant's willful and wanton misconduct in driving his automobile while under the influence of alcohol. The jury rendered a verdict in favor of the plaintiff and awarded her $1,000 for her injuries.
The evidence most favorable to the judgment discloses these circumstances: At approximately 5:12 P.M. on January 20, 1974, plaintiff-appellant Audrey Walczewski was a passenger in an automobile owned and operated by Chester Hodowaniec. The couple was headed in an easterly direction on Ford Street in South Bend, Indiana at a point where Ford intersects with Grand Street. Defendant-appellee Ruben Wright was driving in a southerly direction on Grand toward Ford. Having failed to notice any cars approaching from Ford, defendant proceeded across the intersection at 10-15 miles per hour. While crossing he observed the Hodowaniec vehicle, which had the right-of-way, approaching the intersection. In an effort to avert a collision, defendant quickly accelerated. Nevertheless Hodowaniec struck defendant's vehicle in the right rear quarter panel and spun the car around. Once he regained control of his automobile, defendant drove directly home.
When he reached home a few minutes later, defendant related the accident to his wife and asked for a beer. He testified this beer was the only alcohol he had imbibed that day. Shortly thereafter, the police arrived and escorted defendant to the police station where they administered a test nearly an hour-and-a-half after the accident. The results indicated that the alcoholic content in defendant's blood was .12%.
On appeal, plaintiff assails two actions of the trial court:
1. whether error was committed in denying plaintiff's instruction on punitive damages; and
2. whether error was committed in refusing to strike a comment made by defense counsel during voir dire examination of the jury that he had been hired by an insurance company.
At the close of all the evidence, plaintiff tendered an instruction on punitive damages which the trial court refused. It is argued that since evidence was presented at trial from which the jury could have inferred defendant was intoxicated when the collision occurred, the jury should have been instructed to consider whether plaintiff was entitled to punitive damages. Plaintiff grounds this assertion on the premise that driving while intoxicated is sufficiently willful or wanton misconduct in itself to justify an award of punitive damages against a drunken driver whose negligence has resulted in injuries to another.
However, this premise has been expressly rejected in Indiana. In Thompson v. Pickle (1963), 136 Ind.App. 139, 191 N.E.2d 53, the court embraced the following instruction as a correct statement of the law:
" 'I instruct you that if you find from the evidence in this case that the defendant Glen Leroy Thompson, was under the influence of intoxicating liquor at the time of the accident in question, that fact in and of itself, if you so find, is not sufficient to constitute wilful or wanton misconduct on the part of the defendant.' " 191 N.E.2d at 56.
Next, plaintiff urges that a statement made by defense counsel during voir dire of the jury in which he told the prospective panelists he had been hired by an insurance company should have been stricken from the record. The record does not indicate that the plaintiff moved to strike the allegedly objectionable statement. Accordingly, the issue is waived.
On the merits, plaintiff's contention is patently specious. She claims that insofar as it is wrong for plaintiffs to inject the issue of a defendant's insurance into personal injury suits, it should be equally wrong for defendants to do so. She...
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...instruction, nor did he ask that Ott's claim not be submitted to the jury. Therefore, the contention is waived. Cf. Walczewski v. Wright (1979), Ind.App., 393 N.E.2d 228, 229. Even had Dr. Weinstock properly preserved an objection to the remark, this Court could not reverse the judgment. A ......
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