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Hamm v. McCarty12/21/1988
cation and the speeding. As cumulative evidence, its probative value would be reduced and prejudice would not result from its exclusion.
The record also indicates that Homonai's testimony would have been based on hearsay. In considering Homonai's written statement, the trial court noted that Homonai stated that he did not see McCarty run the light, but heard about it over a CB radio. The record does not contain any details about this radio transmission from which we could determine whether any osthe exceptions to the hearsay rule would apply, such as excited utterance or present sense impression (Evid.R. 803 and ). Thus, because Homonai had no personal knowledge, and because no exception would appear to apply, his testimony in this regard was inadmissible. Evid.R. 802.
In his brief, the appellee states that Lance's testimony would have been based upon hearsay as well, as evidenced by Trial Exhibit 19. Exhibit 19 is a photograph of the intersection where the accident occurred and is irrelevant to this argument. Appellee may be referring to Exhibit 16, which was Jeff Lance's statement to the police; however, this exhibit was withdrawn from evidence and is not included in the exhibits provided to this court. Further, from the colloquy at the time of appellants' proffer, there is no indication that Lance's testimony would have been based upon hearsay. Since McCarty's contention is unsupported by the record, it is not well-taken.
The appellants' first assignment of error is overruled.
"The court, upon refusal of the plaintiff's proffered testimony concerning the red light also erred by directing a verdict for the defendant on the plaintiff's claim that the defendant was more than negligent and had engaged in willful and wanton misconduct."
Hamm contends that the trial court erred in directing a verdict on his claim of recklessness. We disagree, as the record shows that the trial court's directed verdict was on the issue of punitive damages, and not on the claim of willful and wanton misconduct. These are two separate issues, and appellants conceded this point in oral argument. The fact that the punitive damages claim was eliminated had no effect on the jury's ability to find that the defendant was reckless. It was the appellants' inaction which interfered with that ability.
The record shows that Hamm failed to propose a charge on the claim of wanton and willful misconduct, and never objected to the charge that was given. As such, he has waived the issue on appeal.
The appellants' second assignment of error is overruled, and the judgment of the trial court is affirmed.
Judgment affirmed.
BAIRD, P.J., and GEORGE, J., concur.
Footnotes:
1. The jury did not, however, designate the percentage of each party's negligence as is required.
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