Carter v. State
424 N.E.2d 1047
Ind. Ct. App.
1981
Check Treatment

*1 CARTER, Jr., Orville

Defendant-Appellant, Indiana, Plaintiff-Appellee.

STATE of

No. 3-880A250. Indiana, Appeals

Court of

Third District.

Aug. Millbranth, Winamac, Russell D. for de-

. fendant-appellant. *2 Pearson, Gen., Atty. Michael

Linley analysis prescribed E. we follow the in Block Worden, Gen., Indianap- Deputy Atty. burger v. United Gene States olis, plaintiff-appellee. 76 L.Ed. 306 which requires

focuses whether each offense GARRARD, an element that the other does not. Judge. of (1978), 269 Ind. Elmore v. State by jury convicted of tried Carter was N.E.2d 893. causing by op- death reckless homicide vehicle while intoxicated. erating a motor are, of that details however, entirely point for the beside admitting asserts error in He first hand. There was here but one case at inculpatory conversations had into evidence homicide, gravamen and that was the hospital after police at with the It matters no more that Carter offense. days two or three later at accident and then driving recklessly was both intoxicated and prop The evidence was police station. passenger’s his death than it erly neither occasion was admitted. On him, poisoned would have had Carter times he was custody and both Carter in high him stabbed him and thrown from a warnings. The other cir given Miranda bridge. committing an The means of of the court could cumstances were such multiply not be utilized to fense properly that the statements were conclude Only number offenses committed. one voluntarily understandingly knowingly, homicide was committed and one sen given. imposed. tence be Bond v. State Basiger properly qual was Officer 812; (1980), Ind., Bean 403 N.E.2d expert witness. He was there ified as an Ind. opinion permitted to state his properly fore The case is therefore remanded to the addition, the dia speed. of excessive trial court with instructions to vacate one properly admitted in gram prepared he respects In all other sentences. simply displayed visually evidence since conviction is affirmed. entitled to testi the matters the officer was fy to. HOFFMAN, J.,P. concurs. Moreover, evidence was suffi STATON, J., separate files concurs and ample There was cient under both counts. opinion. evidence, including opinion Dr. Peter STATON, Judge, concurring. son, that was intoxicated. That cou Carter majority’s conclusion that I concur in the pled apparent speed and manner in with the punishment cumulative for Carter’s two which the vehicle swerved off both sides convictions offends the Double striking the tree would prior the road of the United Constitution. Clause inference of recklessness. imposition of consecutive sentences in however, point. is, one additional There homicide, IC this case for jury convicted on As at the outset noted Ed., (Burns Repl.) 35-42-1-5 Code ultimately sen- counts. The court (amended 1980), causing death and for (2) years for tenced to serve two Carter intoxicated, to be each conviction with sentences Ed., 9^1-54(b)(l) (Burns Code consecutively. This was fundamen- served 1981), (amended clearly sub- Repl.) 1980 and tal error. jects punishment multiple for the Carter aware, course, However, reasoning that Indi “same offense.” We are majority does little to sus- operative employed by set rejected ana has the “one jeop The same act or trans- approach to the double tain its conclusion. circumstances” homicide, action, may en- including for multi ardy consideration in convictions of more than one statute. ple g., e. Morris v. State tail the violation offenses. greater not have a Where the statutes do (1980), Ind., Instead N.E.2d 1284. relationship offense-lesser or where under which the convictions were offense,” the “same mul- do define obtained are separate and distinct and do tiple convictions and thereun- not constitute the “same offense.” Elmore entirely permissible. der are As one v. State issue, analyzed

learned scholar 897. When a double jeopardy inquiry arises, following test involving op- applied. two offenses must “[w]here *3 by This test separate motor was first the eration of a vehicle are enunciated Su preme Court necessarily and distinct and neither is in- Judicial of Massachusetts in other, Morey v. prosecution (1871), cluded in the a for one Commonwealth 108 Mass. 433, 434, subsequent a pros- offense is not bar to a incorporated by and later in toto other, though ecution for the even Supreme the United States Court Block burger offenses were committed at same v. 299, United ” by 304, 180, time the same . . . 182, 306, and conduct. 76 L.Ed. “ (footnote omitted) applicable that, ‘The rule is where the Toreia, Wharton’s Criminal Law same act or transaction § constitutes a vio- (14th 1978). principle provisions, ed. The same lation of two distinct applies prosecution under two or applied more the test be to determine proceeding. statutes criminal whether are only there two offenses or one, provision requires is each whether in the proof of an additional fact which the case, majority concludes, properly as the do ” other does not.’ pass jeopardy. not test for litmus double Unfortunately, has stated Elmore, supra, 269 Ind. at 382 N.E.2d adequate reasons its conclusion. I Blockburger test, at 895. In analyzing the therefore concur in the result of the Supreme the Indiana Court observed: majority’s opinion for it further confuses proper “The jeopardy focus of the law jeopardy, of double which Justice must on whether or not the Rehnquist astutely characterized as “a prosecuted punished offenses to be Sargasso veritable Sea which could not fail same, are the and not whether of- challenge intrepid judicial the most navi spring opera- fenses from same act or gator.” Albernaz United States tive inquiry circumstances. into - U.S. -, -, 1144- whether the offenses stem from the same 284.1 act merely step analysis. is the first in the enacting the premised upon

When statutes under which If the offenses differ- convicted, acts, Carter legislature great. was creat ent problem is not so But Supreme ed what act, the Indiana Court has where do arise from the same already classified as “two crimes.” we proceed distinct must to determine whether DeVaney charged 493- are themselves the same, 738-39. The same un for the Double Clause lawful act or transaction in mul terms ‘same result written in of- tiple fence,’ words, if convictions not the same act. In other ships geography recently taught by Sargasso 1. A lesson America North saw the Sea Supreme provides patches gulfweed Delaware useful as to form seemed insight Rehnquist’s wide-spreading into Justice consternation meadows. there were Soon judicial navigators legends myths region who make fateful about which voyage thickly large into double waters: told of islands of matted by huge seaweed inhabited monsters of the Sargasso large oval-shaped “The Sea is a ** * deep. They pictured a blanket of apart by area of set the North Atlantic Ocean ship netted seaweed which no could seaweed, presence plants, or marine escape, entangled became once'it weed. which float its of slow on a,region surface — ’ * * * Encyclopedia, Book Vol. World boundary ocean currents surrounded p. (1976).” Ill rapidly moving currents as the Gulf (1981), - Del. -, Equatorial Hunter v. State 430 A.2d Stream and the North Current. 476, early navigators ‘The who sailed their small n. 2. ample, yet perfectly sober a maniacal driver- stem from the the offenses the fact through playground may speed us that there is a crowded merely informs act same not a solution result. con- problem; and cause the inevitable Such potential on The ultimate focus is problem. duct be violative would offenses, not on the identity but not the death homicide statute identity source.” of their being intoxicated statute. hand, village drunk On the other Elmore, supra, 269 Ind. operate vehicle with miraculous adherence Elmore thus advocat- at 897. The Court being involved the rules of the road until analysis of the statutes side-by-side ed a in the death of in an accident that results statutes, when ana- question. If one of village person. The drunk could be another abstract, “requires proof of a lyzed in the 9-4-l-54(b)(l). violating prosecuted not,” then the does the other fact which However, proof of more than intox- without under both stat- punishment imposition of *4 ication, not be sub- village drunk would repugnant. constitutionally utes is not conviction. ject to a reckless homicide application of the The strict (1972), Ind. 288 DeVaney v. State 259 present in the involved the statutes test to 732; (1975), 164 v. State N.E.2d Johnson a conclusion con- result in appears to case 637; cf., N.E.2d Williams Ind.App. majority. The reached trary to that Ind., (# 423 N.E.2d 598 recognizes that the Block- majority itself 781-S-192, 22, 1981) July down handed however, “analysis, en- burger-Elmore [is] (same principle applied to offense of crim- point.” My question is tirely beside recklessness, 1976, 35-42-2-2(b) inal be discard- test why should the Ed., (amended (Burns Repl.) Code Claiming case? present ed for 1981)). only one and that occurred one homicide appears to be a resur- may stand conviction examples demonstrate that a The above operative circum- “one set of rection of the Blockburger test to application of the strict I assume stances” doctrine. in the case statutes involved Thus, I result. be- such a did not intend finding “re in a that each statute results question in must be statutes lieve the two quires proof a fact which the other does prescribed by the subjected to the differing elements —recklessness not.” The Elmore, which in Supreme Court Indiana always one and intoxication —are not and Blockburger test. fully incorporated However, application the strict the same. Blockburger test results in a conclu of the Blockbur- proper application satisfactory, and is far comparison of the ele- sion ger a requires test Supreme Court cases question. recent United States statutes the two ments of recognized the Court has homicide, convince me that at IC 35—42- as defined Reckless application of the amendment, the infirmities of a strict required 1-5 before its recent overlapping net (3) Blockburger test to the (2) person, (1) killing, of another prevails to vehicle, statutes that (4) reckless work of criminal a operating while analysis of the statutes driving Causing death while day. manner. abstract required under the intoxicated, as at IC 9—4—1— being defined by the amendment, appears to have been modified re- test 54(b)(1) its recent before v. United States (2) person, in Albernaz killing, of another quired (1) the - -, 67 L.Ed.2d vehicle, (4) while in- U.S. S.Ct. (3) operating while 275; Illinois v. Vitale U.S. only in their statutes differ toxicated. The L.Ed.2d and Whalen and intoxica- S.Ct. last elements —recklessness (1980), 445 are two v. United States and intoxication tion. Recklessness ap law, 715. The Court concepts S.Ct. very in Indiana distinct anal evolving from an abstract person pears to be they may independently. A exist question to a de facto ysis of the statutes conduct without may engage in reckless components of the intoxicated, For ex- examination being and vice versa. Sometimes, the causing ments.2 reckless homicide and death while ele may appear faces, but, their distinct on intoxicated and when the analyzed conjunction partic with a when intends or rely relied legal proscribe theory, the statutes ular evidence of the defendant’s intoxication to Vitale, supra, offense.” “same U.S. at establish recklessness, the element of 420-21, 100 2267, 65 S.Ct. at at 238. L.Ed.2d elements death while driving and The theoretical nature of Court’s con being intoxicated are contained completely perhaps better understood clusion when within the elements of reckless homicide. applied statutes in case. (1) The elements of the former are abstract, analyzed When IC 35-42- killing, (2) (3) person, oper- another while 9-4-l-54(b)(l) appear and IC 1-5 to con- ating vehicle, (4) while intoxicated. Reck- However, tain different elements. the le- homicide, less analysis, under this is com- gal concept of as used recklessness in IC posed of following (1) elements: merely all-encompassing 35-42-1-5 is (2) killing, (3) person, of another oper- while conduct, term various modes one of ating vehicle, (4) intoxicated, (5) pre- which includes intoxication. As noted plus component recklessness, some other viously proof opinion, in this of reckless speeding swerving as or from side to showing conduct consist of a of intoxi- legal theory side. When the the State as- plus cation some other mode of conduct that in support serts conscious, “plain, unjustifia- evinces charge necessitates defend- disregard might ble of harm that result.” *5 intoxication, ant’s offense the of 1976, (Burns Ed., 35-41-2-2(c) IC Code being death while intoxicated Repl.). hand, 1979 the some On other cases becomes a lesser included require showing not a of the actor’s greater offense, reckless homicide. As intoxication to establish reckless conduct. such, punishment prohibited for both is un- The element of recklessness be estab- the Jeopardy der Double Clause. by proof conduct, lished of other modes of It 1976, emphasized must be as in that under the those enumerated 9-4- test, (Burns Ed., Supp.). Blockburger reviewing modified the 1-56.1 Code 1980 How- ever, charges person particular when the a State with court need not delve into the Supreme treating ing multiple punishment 2. The now Court is for the same of- Blockburger statutory U.S., 165, S.Ct., test as a “rule of con- fense.’ 432 at 97 at 2225. Whalen, 691, supra, Thus, question struction.” 445 punishments U.S. at what of are 1438, 100 S.Ct. at at 723. constitutionally 63 L.Ed.2d The first permissible is not different step Blockburger in the is to look to punishment from the of what legislative intent behind the statutes in Legislative imposed. Branch intended to be question. The Court stated: intended, here, Congress Where as it did assumption underlying impose multiple imposition punishment, “The the rule is that Congress ordinarily punish does not intend to such sentences does not violate the Constitu- (footnote omitted) the same offense two different under stat- tion.” Accordingly, pro- utes. two appears stating where The Court if the offense,’ proscribe visions legislature the ‘same are authorized cumulative pun- offenses, construed not to authorize cumulative separately defined then the Dou ishments in the of a clear absence indication analy ble Clause offended. An is not contrary legislative ...” intent. legislative sis of the focus to the Court’s shift in Whalen, 691-92, supra, 445 U.S. at at S.Ct. appears intent in behind Hunter v. 1438, 63 L.Ed.2d at 723-24. The Court’s most (1981), - Del. -, 430 A.2d 476. appears recent statement on the issue in Alber part 1 am unable to discern an intent on the naz, supra, 344, 450 U.S. at 101 S.Ct. at legislature require punish- cumulative 67 L.Ed.2d at 285: ments for convictions under both IC 9—4-1- Ohio, previously “As we in noted Brown v. 54(b)(1) and when the 35-42-1-5 convictions [(1977), U.S. S.Ct. Thus, step arise out of the same act. the first ., L.Ed.2d . . consecutive sen- 187] ‘where no relief for test offers trial, imposed tences are at a criminal issue addressed in the case. The guarantee the role of the is constitutional text, step, developed second which is assuring limited to the court does must thus be examined. legislative by impos- exceed its authorization making already case when been double convicted for conduct that facts inquiry. The court must focus its jeopardy necessary element of the more serious legal theory that upon the attention charged, crime for which hé has his been proving employed reck- jeopardy claim of double would be sub- becomes, charge. The issue less stantial under and our later deci- Brown rely upon intoxication “did the State Oklahoma, sion in Harris so, If component recklessness?” prove a (1977). one statute does not then conviction under * * * * * * “proof of which the require a fact other pending manslaughter prose- “[I]f Supportive position not.” of this does proves cution Illinois relies on and a fail- Vitale, Supreme Court’s observations ure to slow to avoid an accident as the successfully supra, in which the defendant prove necessary reckless act man- jeopar- state court a double asserted slaughter, Vitale a substan- would have challenge dy prosecution involun- tial claim of under the tary manslaughter a vehicle after hav- with Fifth and Fourteenth Amendments of failing ing to reduce been convicted (footnote United States Constitution.” speed to avoid an The defendant accident. omitted) Supreme and the Illinois contended Vitale, 419-20, 421, supra, 447 conviction, as a agreed that the latter lesser Rely at 237-38.3 S.Ct. L.Ed.2d involuntary manslaugh- included offense of Vitale, ing preceding on the passages ter, subsequent prosecution barred the Supreme the Illinois Court viewed Vitale as greater United offense. The a modification test and Supreme Court held: applied the to facts similar modified version law, “If, as a Illinois matter of care- People to those of the case. always necessary failure to less slow is Zegart (1980), 83 Ill.2d 47 Ill.Dec. by automobile, manslaughter element of (1981), - U.S. cert. denied then the two are the ‘same’ un- -, L.Ed.2d Vitale’s trial on der successfully defendant a motion to asserted *6 charge constitute latter would charge dismiss a reckless homicide after jeopardy [(1977), under v. Brown Ohio having crossing over a been convicted of 187], U.S. S.Ct. highway dividing affirming median. In the event, any may it to sustain In be that its Supreme charge, dismissal of the the Illinois manslaughter the find case State it held: Court necessary prove to a failure to slow or to concedes, involving pleading pri- its rely necessarily on conduct “In the State failure; trial, prior as much or to that to sustain the concede to it intends case, manslaughter by introducing In that Vitale evi charge trial. because opin- language appearing early ponents proof 3. In in its Vitale of the the elements entailed ion, Supreme following prove the made the same interpretation used to facts another offense. This unequivocal appear supported by that to contra- statements the fact Vitale is passage just quoted in dict the Vitale the Burger, opinion that Chief Justice in his dis opinion: of this text senting petition for a writ of denial of a Zegart (1981), manslaughter by in Illinois 49 U.S. certiorari v. does not “[I]f automobile al- slow, reported People Zegart ways proof then L.W. 3929 (1980), at [case entail of a failure to the 440, 47 two offenses are the ‘same’ under the 83 Ill.2d Ill.Dec. not possibility 341], passage quoted test. that this The mere the relied in the rely ingredients to will seek on all of the footnote to may his contention that courts necessarily statutory included in the traffic to to in look the elements manslaughter establish an components element of its case and not of those ele the prose- would not be bar the latter opinion sufficient to clearly represents mi ments. His nority the cution.” Court, Supreme the of the view of Vitale, supra, 100 S.Ct. at U.S. at Zegart, Supreme People v. Illinois Court. apparent 65 L.Ed.2d at 237. ly The Court did 339-40, supra, 47 Ill.Dec. at 415 N.E.2d at 344- preclude intend the these to re statements J., (Underwood, dissenting). statutory view of if elements to determine com tain the more serious that across offense.. dence defendant drove Stated conversely, median. While it is true that this would mean that aif ‘always’ proof does not entail conviction more serious offense driving strip, across a median under the could proof stand in a case without case, particular facts in this as disclosed offense, lesser double jeopardy claim particulars, by the amended bill of Thus, would be vitiated. in Zegart, expect rely does on such to conduct where a conviction reckless homicide necessary far prove ‘in so as it is could not have been sustained without sum, allegations of the indictment.’ median, prior crossing evidence of the State intends to use the factual basis crossing conviction the median barred which led to the first conviction as the subsequent prosecution for reckless basis the second conviction. We con case, however, homicide. In the by doing clude so the State would be we believe the conviction for un- violating jeopardy the double clause of der influence sustained the fifth amendment to the United States breathalyzer results and admissions of de- (see Constitution and dis fendant, running rendering evidence of senting opinions Illinois Vi light Therefore, superfluous. red tale). . . .” does defendant not have even supra, Zegart, 343-44. at In an ‘substantial’ double claim.” case Zegart, Illinois which in turn followed provided following summary court Reed, supra, 416 N.E.2d at 700. The test of the modified test: applied be now perhaps best stated “The United Supreme Court made (6th Pandelli v. 1980), United States Cir. attempt clarify its most recent this court, F.2d reviewing after test in Illinois v. Vitale Whalen, Vitale and following reached the 100 S.Ct. 65 L.Ed.2d 228. Vi conclusions: tale indicates that offenses not the “The opinion, Court states each how- jeopardy purposes same for double unless ever, test in its always one of a necessary ‘is modified form still ‘focuses on the unless, element’ of the other offense or necessary prove elements case, particular the facts of the it is nec offense, of each rather than on the actual rely essary prove on and the lesser trial,’ Vitale, evidence to presented offense to establish element alleged S.Ct. at ‘the facts or greater involving offense as in cases felo particular Whalen, indictment.’ ny underlying murder predicate and the added). (emphasis felony. Courts have *7 2260, 2265, 2267, 228, 235, always to the law the 65 L.Ed.2d looked indictment 237- claims 38.” the defendant violated. If so, they did not do would not know even People (1981), 1115, Ill.App.3d Reed what at are issue under 421, 694, 698; also, Ill.Dec. see reviewing rule. What People (1981), 825, Ill.App.3d C. H. court 1053, applying must do now Blockbur- provides N.E.2d 1055. The Reed case ger go is example legal to further and look good multiple of when convic punishments permissible theory or the tions and are of the case elements un specific der the modified test. The criminal of action cause for which court observed: the defendant was convicted without ex- amining (emphasis

“The Vitale the facts detail.” assertion that a defendant original) have a claim would ‘substantial of double

jeopardy’ if the it ‘necessary State found Pandelli, supra, at 635 F.2d 538. prove’ the less offense to sus- serious offense, legal tain the more The theory serious seems asserted line, require, proof present as a bottom that ease in of the reckless the lesser ‘necessary’ offense be to sus- homicide charge necessarily entailed complex overlapping. The causing come more and the offense elements of Stewart, as being intoxicated. comments of Justice driving and erudite death while test, 538, Pandelli, supra, 635 F.2d at n. quoted in the modified Under 7, regarded persuasive: as the “same must be offenses two purposes be- for 436, offense” Swenson, In Ashe v. elements of one offense proof of cause 1189, 1195 10, 10, n. 25 L.Ed.2d n. 90 S.Ct. fully proved the elements of necessarily and Stewart, (1970), the au Mr. Justice Double The offense. the other Whalen, noted: opinion thor of States Constitution the United Clause of law, federal and under common ‘[A]t 1, 14 of the Indiana (and Art. presumably § statutes, categories criminal multiple Constitution) “protects against A relatively few and distinct. were North same offense.” for the conduct was single course of criminal 711, 717, (1969), 395 U.S. Pearce Carolina v. single offense. In likely yield but a with the advent of more recent times only Therefore, punished Carter ex- draftsmanship and the specificity in the offenses.4 one of overlap- traordinary proliferation of prosecu- emphasized offenses, ping It must be related causing prosecutors spin both reckless possible tion for became driving being intoxicated startingly while series of of- death out a numerous proceeding is not single alleged criminal criminal in the same from a fenses may, as it did barred. The State As the number of statuto- transaction. case, charge the defendant with potential for ry multiplied, the offenses However, if the defendant prosecution be- offenses. abusive unfairness and and the (Citations pronounced. of both is convicted came far more as an element of intoxication omitted).” relied sentencing is constitu- recklessness, for both law, it evident Indiana Under tionally impermissible. Code, Title Motor Vehicle offenses of the overlap with the of- Jeopardy may places in some the Double application of Code, Title 35. The Clause, that has had its fenses Criminal principle of law overlap. Per- such an days Demosth- case involves traced back roots legislature may reexamine Whalen, haps, enes, supra, 445 see integrated sys- (Rehn- two codes and formulate L.Ed.2d at 728 controlling vehicle of- motor J., increas- tem of laws dissenting), has become an quist, the dan- To do so would alleviate statutes be- fenses.5 ingly task as criminal arduous Givan, legislature great dissenting opinion in clar- 5. The has made strides in his 4. Chief Justice Ind., very confusing body ifying 423 N.E. what was once a in williams v. State session, legis- July During regular (No. handed down law. its 1981 2d 598 781 S 22, 1981), West’s similar to that IC 9-4-1-54. reached a conclusion lature amended leg- opinion. interpreting Ind.Leg.Serv. In In 2315-17. in this reached penalty causing DeVaney death v. State islature increased the case of from a Justice observed: intoxicated Chief Givan felony felony. penal- D to a Class C ap- Class ty DeVaney the noted that in “It should be amend- remains the same under the 1981 pellant been convicted of both had ment. of another the death homicide and legislature sen- reversed deleted the second This Court *8 while intoxicated. statute, 35- and allowed the reckless homicide conviction tence of the reckless homicide 42-1-5, killing of an- anoth- which made the reckless the death of the conviction for felony. liquor person D a Class the influence of other with vehicle er under Now, are treated the all reckless homicides to stand. same, DeVaney penalty as a Class C felo- case that with the fixed “It is obvious ny. allowed to not be both convictions could stand, 9-4—1-54 and amendments in IC dual conviction for While these as we had a ” the law in this have clarified IC 35-42-1-5 offense. . . . jeopar- DeVaney area, they the double have not resolved in Williams had cited The dy problem legal proposition. when convictions arise of another for same are obtained under fhe act or transaction.

1Q55 CHIPMAN, ger multiple punishments for Presiding Judge. of the “same then, Until Indiana courts must offense.” Casting Defendant Noblesville Division cognizant trends of the recent in double TRW, Inc. seeks review of an award of jeopardy law so that criminal defendants do Full Industrial Board Indiana in fa- unwary judicial navigators with not sink vor Freddie J. Prince. Noblesville Cast- “Sargasso Sea” of double law. ing challenges expert Prince’s medical testi-

mony on the light issue of causation in expert requirements testimony of Pal- Bar, Fearnot, (1978) ace Inc. v. agree 381 N.E.2d 858. We that under these requirements expert testimony given prove alleged not sufficient to industrial CASTING, NOBLESVILLE DIVISION injuries. accident caused Prince’s Accord- TRW, INC., Appellant-Defendant, OF ingly, we reverse. light evidence most favorable to PRINCE, Appellee-Plaintiff. Freddie J. judgment follows: No. 2-580A132. Prince was a maintenance man for No- Indiana, Appeals Court of Casting general blesville did repair Fourth District. throughout plant. work May On working he was on a flat car line Aug. (200-300 transported heavy which pounds) 8, 1981. Rehearing Denied October flasks. He were placing and two others

flask on the line and as other two men side, lifted their excess of the flask weight shifted toward Prince. He suffered pain immediate difficulty straight- and had ening reported his back. He the incident to superior, his left work remainder of day possi- a doctor consulted for a (although found). ble hernia none was working Prince continued until October 1977, although complained he periodically pain. back 18, 1977, On October Prince entered the hospital for surgery. back Dr. William H. Norman him on November 6 examined performed spinal on fusion November 8. fusion was intended restrict motion pain. relieve previously Prince had undergone surgeries two back which con- sisted of disk in 1966 removals and 1969. permanent par- The first resulted in a 20% Fields, Lowe, Gray, L. Paul Steele & impairment, tial second an additional Hoffman, Bunny, Indianapolis, Edwin J. impairment. Norman 15% Dr. stated that appellant-defendant. surgery impair- increased Prince’s Foland, Noblesville, another appel- R. ment 15% due restriction of mo- Arvin lee-plaintiff. tion.