William H. Stern & Son, Inc. v. Rebeck, 171A17

• Decision Date: 27 December 1971
• Docket Number: No. 171A17,No. 1,171A17,1
• Citation: 277 N.E.2d 15,150 Ind.App. 444
• Parties: WILLIAM H. STERN & SON, INC., Defendant-Appellant, v. Michael J. REBECK, Plaintiff-Appellee
• Court: Indiana Appellate Court

Page 15

277 N.E.2d 15

150 Ind.App. 444

WILLIAM H. STERN & SON, INC., Defendant-Appellant, v. Michael J. REBECK, Plaintiff-Appellee.

No. 171A17.

Appellate Court of Indiana, Division No. 1.

Dec. 27, 1971.

Rehearing Denied Feb. 2, 1972.

Oscar Strom, and Angelo A. Buoscio, Gary, Strom & Whitted, Gary, of counsel, for defendant-appellant.

Charles R. Vaughan, Vaughan & Vaughan, Lafayette, James Clement, Steward & Clement, Gary, for plaintiff-appellee.

ROBERTSON, Judge.

This is a suit for damages for injuries to the plaintiff, Michael J. Rebeck, arising out of an accident allegedly caused by the negligence of defendant, William H. Stern & Son, Incorporated. Plaintiff's complaint alleged that on December 21, 1967, at approximately 4:30 p.m., he was walking in a southerly direction along the east side of Broadway Street, in Gary, Indiana, when a barricade which was serving as a temporary false front to a building being remodeled by defendant collapsed upon the plaintiff, thereby causing him to suffer severe injuries including, but not limited to, a nerve root injury to the cervical spine, paralysis of the arms, loss of control of the right leg, contusions over the entire body, and severe physical pain and mental suffering. Plaintiff's complaint further set forth allegations that the defendant was negligent in: failing to construct the false front so as not to collapse on pedestrians; failing to warn pedestrians of the dangerous conditions; failing to inspect the false front when it knew, or should have known, of its dangerous conditions; and failing to brace and secure the false front to prevent its collapse.

For the injuries allegedly caused by the defendant's negligence, the plaintiff prayed for a judgment in the amount of $100,000, later amended to $110,000. After a trial by jury, a verdict and judgment in the sum of $80,000 for plaintiff was rendered.

Defendant, thereafter, timely filed its Motion to Correct Errors, which specified the following alleged errors;

1. Denial of fair trial by irregularity in the proceeding of the court, jury, and prevailing party, abuse of discretion and misconduct of the prevailing party and his attorney.

2. Accident and surprise which ordinary prudence could not have guarded against.

3. Verdict was excessive and not supported by sufficient evidence.

4. There were errors of law and the verdict was contrary to law.

On October 28, 1970, defendant's Motion to Correct Errors was overruled, and defendant appeals the trial court's ruling on said motion.

The method of preserving error predicated upon misconduct of counsel is:

'(1) To promptly interpose and state their objection, if reasonably required, to the objectionable language or argument, and request the court to so instruct the jury as to counteract any harmful effect of such language or argument, and if granted, and such instructions were not sufficient to cure the error, follow such action by a motion to have the submission set aside; (2) to promptly object to the improper language or argument of counsel, and move to set aside the submission, stating reasons why the harm done could not be cured by any action the court might take in the matter.'

Lawson v. Cole (1953), 124 Ind.App. 89, 92, 115 N.E.2d 134, 136, and authorities cited therein.

An examination of the record reveals Stern's counsel failed to follow this procedure. Motions for a directed verdict were made at the close of plaintiff's case and at the close of all the evidence based upon the misconduct of opposing counsel. These motions refer to an attached affidavit that after a diligent search, were not found in the record available to this court. The motions were couched in such general terms as to be of no value to this or the trial court in ruling thereon.

The accident and surprise of which Stern complains consists of certain medical records of Rebeck used at the trial. Stern had requested, six days prior to trial, a pre-trial conference. The morning of the trial, the judge and the attorneys held a discussion in chambers at which plaintiff agreed to share the medical reports then in his possession with the defendant. Rebeck had previously provided a medical report to Stern approximately three weeks prior to the trial.

A reading of TR. 16 sets out a time schedule suggested for the pre-trial conference. The tenor of TR. 16 indicates the procedure is to be utilized several weeks prior to trial, and not while the jury sits idly in the box awaiting the commencement of the case.

Neither did Stern ask for a continuance upon learning of the existence of this alleged new evidence, nor does the record reveal any attempt on the part of Stern to obtain medical examination of Rebeck, or make use of discovery prior to the trial. The record would further show that Rebeck's doctor had not given counsel some of the material, and the remainder consisted of working file memoranda which had been summarized in the earlier medical report given to Stern.

Stern also addresses himself to the proposition that the award to the plaintiff of $80,000, under the facts of the case, was excessive. An excellent discussion of a similar contention, insofar as it pertains to excessive damages, is contained in Lloyd v. Weimert (1970), Ind.App., 257 N.E.2d 851, at pp. 857, 858. In that opinion, ample authority is cited to show there will only be a reversal on the grounds of excess damages in the event the amount assessed appears to be so outrageous as to impress the court at first blush with its enormity. After an examination of the record we can not say that the jury in this case was motivated by prejudice, passion, partiality or corruption, or considered some improper element. While this court does take note of the fact that the damages awarded are liberal, the figure is not unsupported by the evidence, and does not appear to have been based upon the existence of any of the foregoing criteria. Lloyd v. Weimert, supra, and authorities cited therein.

Stern's 4th specification of errors contains 16 sub-sections of alleged error. Four of these are duplicitous in that they repeat the previously discussed misconduct of counsel and the pre-trial procedure. Still other sub-sections of the 4th specification of error fail to conform to the requirements of AP 8.3(A)(7), by not being argued or by failing to cite supporting authorities.

It is alleged that the trial court erred in refusing to give to the jury defendant's tendered Instructions Nos. 2 and 7, which read as follows:

'DEFENDANT'S TENDERED...