Whisman v. Fawcett

• Decision Date: 13 December 1983
• Docket Number: No. 4-982A284,4-982A284
• Citation: 456 N.E.2d 1068
• Parties: Brian WHISMAN, Appellant (Plaintiff Below), v. Lawrence FAWCETT, Fraternal Order of Eagles, Lodge 741, and Veterans of Foreign Wars Post 1987, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 1068

456 N.E.2d 1068

Brian WHISMAN, Appellant (Plaintiff Below), v. Lawrence FAWCETT, Fraternal Order of Eagles, Lodge 741, and Veterans of Foreign Wars Post 1987, Appellees (Defendants Below).

No. 4-982A284.

Court of Appeals of Indiana,

Fourth District.

Dec. 13, 1983.

Thomas J. Lantz, Montgomery, Elsner & Pardieck, Seymour, for appellant.

Gerald G. Angermeier, Jewell, Crump & Angermeier, Patrick W. Harrison, Cline, King & Beck, Columbus, for appellees.

YOUNG, Judge.

Brian Whisman brought suit against Lawrence Fawcett, Fraternal Order of Eagles Lodge 741 (Eagles), and Veterans of Foreign Wars Post 1987 (V.F.W.) for injuries he suffered when Fawcett's car struck him. After trial, the jury returned a verdict against Whisman in favor of all three defendants. The court entered judgment accordingly, and Whisman appeals, raising several issues. However, because we find that the trial court erred in allowing the defendants to raise issues at trial that were not included in the court's pre-trial order, we need address only that issue.

We reverse.

The facts relevant to this appeal are as follows. On the evening of November 21, 1979, Lawrence Fawcett attended a Thanksgiving dance at the V.F.W. post in Columbus, Indiana. Over several hours, Fawcett drank four beers. Fawcett stayed at the V.F.W. until 10:00 or 11:00 p.m., then went to the Eagles Lodge. Bartenders there testified that Fawcett appeared drunk when he entered the bar, and one bartender refused to serve Fawcett any beer. This bartender testified he did not remember seeing Fawcett when he was not drunk. Fawcett went to another room at the Eagles where a dance was in progress. While he was there, two of his friends each brought Fawcett a beer. He drank one and half bottles of beer and left at 1:00 a.m.

On this same evening, Brian Whisman and three friends split a six-pack of beer--Whisman had two--and went "mudding" in a jeep. They returned to Columbus after midnight. As they drove into town, a Monte Carlo pulled up beside them. Whisman's friend, who was driving the jeep, argued with the other car's driver as they drove along. Finally the cars stopped side by side in the road, blocking both east-bound lanes, and Whisman's friend got out to confront the other driver. Whisman climbed out of the back of the jeep and stood to the rear of the two cars.

At this point Fawcett, who had just left the Eagles, was also east-bound, driving at some distance behind the two cars. Traveling in the left lane, Fawcett saw the Monte Carlo's tail lights in front of him and moved into the right lane. Fawcett testified he did not see the jeep blocking this lane. Fawcett also testified that, as he neared the jeep, Whisman jumped in front of him waving his arms. Whisman denied this. Fawcett applied his brakes but slid into Whisman, pinning him against the jeep. Whisman was seriously injured. As a result of this incident, Fawcett was convicted of driving while under the influence of alcohol. Whisman subsequently sued Fawcett, the Eagles, and the V.F.W. for his injuries, and the matter proceeded to trial, culminating in the judgments for all three defendants.

In challenging these judgments, Whisman argues the trial court erred in allowing the defendants to raise the defenses of contributory negligence and incurred risk, since those defenses were not included in the court's pre-trial order. At the pre-trial conference, held on February 12, 1982, the parties were to submit statements of their contentions to clarify the issues for trial. The V.F.W. contended that the accident was caused, not by its serving beer to Fawcett, but by some other "unforeseeable intervening cause." The Eagles similarly argued that it was not negligent and that the accident was caused by Fawcett's acts rather than any act of the Eagles' employees. Fawcett offered no statement of his contentions. Based on these contentions, the court issued a pre-trial order on the day before trial began, limiting the trial to three factual issues: (1) whether the defendants' negligence proximately caused Whisman's injuries; (2) whether there was an intervening cause of the accident that would exculpate the V.F.W.; and (3) the amount of Whisman's damages. This order was distributed to all parties and signed on April 12, 1982, the first day of trial.

At trial, in his opening argument to the jury, the Eagles' attorney mentioned the defense of contributory negligence. Whisman's attorney immediately objected, arguing that the pre-trial order excluded this issue from the case. The court overruled this objection on the theory that, under Ind.Rules of Procedure, Trial Rule 9.1(A), "the defense of contributory negligence arises as a matter of law whenever a complaint in negligence is filed and ... survives a non-inclusion in the Pre-Trial Order as a contested issue of fact ...." The trial court subsequently denied Whisman's motion for a mistrial based on the introduction of the contributory negligence issue. At the close of all evidence, the V.F.W. moved to amend the pleadings to conform to the evidence, which supported a finding that Whisman incurred the risk or was contributorily negligent. The court granted this motion over Whisman's objection. Finally, also over Whisman's objection, the court gave the defendants' tendered instructions on contributory negligence and incurred risk. Whisman contends all of these rulings were erroneous under the court's pre-trial order.

This argument calls into question the effect of the court's pre-trial order, entered pursuant to T.R. 16(J). The purpose of a pre-trial order is to clarify the issues for trial, eliminating litigation of issues not seriously in dispute and preventing surprise at trial. North Miami Consolidated School District v. State ex rel. Manchester Community Schools, (1973) 261 Ind. 17, 300 N.E.2d 59; Wynder v. Lonergan, (1972) 153 Ind.App. 92, 286 N.E.2d 413. A pre-trial order is a blueprint for the trial, crystalizing the legal and factual issues left unclear by the pleadings and enabling the parties to determine what evidence they will be called upon to produce. Colonial Mortgage Co. v. Windmiller, (1978) 176 Ind.App. 535, 376 N.E.2d 529. Thus, a pre-trial order stating the issues to be tried supplants the allegations in the pleadings and controls all subsequent proceedings at trial. City of Hammond v. Drangmeister, (1977) 173 Ind.App. 476, 364 N.E.2d 157. The parties may not try issues excluded by the pre-trial order unless it is amended. North Miami Consolidated School District, supra.

In this case, the defendants argue the issues of contributory negligence and incurred risk were inherent in the larger issues of negligence and proximate cause, which were included in the pre-trial order. Thus, they contend the court did not abuse its discretion in interpreting its order to allow them to raise these issues at trial. This argument is based on T.R. 9.1(A) and Eagle Motor Lines, Inc. v. Galloway, (1981) Ind.App., 426 N.E.2d 1322. Neither of these authorities, however, convinces us that contributory negligence and incurred risk were inherently at issue in this case.

Trial Rule 9.1(A) provides that contributory negligence may be pleaded by an answer denying negligence. Nevertheless, when issues raised in the pleadings are not stated in the court's pre-trial order, those issues pass out of the case. City of Hammond v. Drangmeister, supra. Thus, contributory negligence and incurred risk were not inherently at issue in this...