*1 psychiatric person, and cally under medical nervous sanitorium, treatment, a rest ad- an and inmate drugs. tranquilizers Cer- dicted to the use qualified, capable tainly a cannot be said he juror competent those circumstances. under reversed, judgment trial court should The remanded with instructions sustain cause and the motion for new trial. appellant’s Reported 183 N. E. 198. 2d
Note. —
City Haute Deckard. of Terre v. Rehearing 30,279. June denied Filed [No. September 25, 1962.] *2 Haute, Crawford, City Attorney Frank P. of Terre appellant. for Haute, Duffy,
Robert P. H. James Terre Savage, Clinton, appellee. for petition case1 J. —This comes us
Landis, Appellate transfer from the under Burns’ Court §1, (1946 Replacement), §4-215 Acts ch. p. 800, opinion Appellate appearing Court’s 2d 141. N. E. brought
Appellee City this action damages personal of Terre Haute to recover in- damage property allegedly by ap- sustained pellee operated by appellee when a motor vehicle police by appel- struck from behind car owned *3 City operated by police police lant and a officer. The way apparently car on its to the scene of fire a by jury, Trial when the accident occurred. was had a resulting judgment appellee in a verdict and for $30,000. the sum of by is
This action Burns’ authorized §47-2030a (1952 Replacement), 197, §1, p. Acts ch. 635.2 assigned
Among appeal the errors on this are the overruling appellant’s of motion for new trial and assigned This case was first to the writer June 1. any injury person property to the or of an- 2. “Whenever operation by negligent a caused of motor vehicle other is owned by corporation operated by municipal a member a and engaged department police such member is or fire while police performance or as a officer fire- in man, of his duties upon part negligence and, any contributory without owner, municipality injured person in whose or of such per- department police or fire member of such behalf such injury, time, forming duties, liable for such shall be such at damage property-” or to
292 remittitur, respectively motion for filed arid days jury, attempting after verdict of the part defense, for as a raise mat- first of time mitigation damages, ter in to-wit: policy a had taken out $10,000 the automobile covering
amount accident applicable on and under an sued statute3 re- municipal corporations Liability property or 3. “State and — Coverage—Limitations—Contracts damage with for hire insurance — private policies. state, owners —Provisions or. —The thereof, municipal corporation héreby any empowered insuring policies officers, purchase appointees, of insurance employees municipal corporation agents and the state or damage liability imposed by because of the or loss law agents officers, appointees, employees and such for loss bodily injury by, any person resulting to, damage of, from or death or or damage property sustained or caused persons, arising ownership, maintenance, hire, out of the by accident and by any muneipál owned the state or motor vehicle such use of corporation, ever, owned, hired, personal any property real or other and whatso- (cid:127) municipal the state or or used such municipal corporation, poration, of the state or such in the business' cor- public premiums pay thereon out of funds. and any municipal corporation shall the state or event In no any case, thereof, liable, amount excess of- he in full force effect of valid insurance and amount the maximum particular covering particular real or motor vehicle or and (cid:127) causing such or personal property damage: corporation any in the accident loss involved any municipál Provided, or wherever the state That a contract for the hire or use of into thereof enters by be private individual, operated a such owned automobile above, purchased insurance, the owner shall as set out payment may thereof and funds .such automobile policy such of insurance No contract for hire. in the included n n the state or to purchased or delivered to issued shall by any carrier corporation any municipal. thereof insur- dúly to transact such authorized carrier such unless ance business policy Indiana, so is- state within the chapter 162, requirements of article to the conform sued shall [§39-4309], nor unless there IX, the Acts of sec. 177 provision policy if there contained within shall be arises or claim, relation action in may or cause of suit arise a defense, up, aas not set thereto, carrier will such insurance corporation, municipal immunity of such the state the but such interpose *4 plead permitted and be carrier shall to the be available every that would defense other natural, private person or a a were insured if. insured carrier, liable, be the insurance corporation, in- no any shall in event the, maximum amount any case, in excess .of in amount n , (1952..,Repl.) §39-1819 Burns’ policy insurance.” in the of named being ; 52, §2, p. . < ..... 1941, ch. Acts of policy of such covery amount limited to the was policy $20,000 over limit said and that the excess $10,000 excessive and should be was therefore support of introduced in No evidence was set aside. for new trial motion for remittitur the motion relied on therein set contract nor was anywhere in record. out in the motions 1, §20, that Art. observe the outset should we At provides: “In all Indiana the Constitution jury right cases, shall re trial civil an The case before us was inviolate.” main damages in tort and action therefore parties a which the were entitled to a in civil cause jury. (1877), Allen v. Anderson See: trial Ind. 388. throughout country as to
The authorities mitigation pleading proof of matter of dam- and §142, S., Damages, ages forth C. J. are set follows, to-wit: p. “According authority in miti- to some matters damages may an- gation shown be under an general containing only, denial and need
swer according pleaded, specially to others while not be matters must mitigation as an issue be available pleaded by In specially defendant. still only it new jurisdictions, rule is that other matter pleaded, tends specially mitigation must be anything in evidence damages alleged disprove amount general issue competent under is still must other along with by the be considered testimony in the case.” evidence Indiana that rule the settled has been It admissible, damages under what mitigation general denial answer an been known as
has where and slander except of libel in actions al. et v. Stoll osier pleaded. M specially may *5 294
(1889), 754; 244, 249, 752, 119 Ind. 20 N. E. Walker v. (1893), App. 600, 605, 267, Johnson 6 Ind. 33 N. E. 100; 34 (1864), E.N. Smith and Smith v. Lisher 23 Pittsburgh, Ind. also: R. See etc. v. Co. Higgs (1906), 694, 702, 299, 302, 165 Ind. E.N. (N. S.) L. 1081, 1088, R. A. wherein it was held that where a company upon railroad a defendant relies plaintiff’s damages to contract defeat action for for negligence, its it must an set out contract as answer. question
There can no the matter but mitigation by appellant raised for the first time pre- motion for new trial and motion for remittitur attempted sented an issue which to avoid it of fact liability damages partial liability or for the asserted by appellee the ex- in the action. The evidence as to covering liability istence of instant might way automobile or other. accident be one However, upon was a matter which burden it rested, appellant presented a as factual it partial or issue similar to other defenses defenses seeking liability escape available to a defendant to or partial damages liability claimed, for it had to all, presented, cause, if which the trial at appellant did see fit do. to longafter
Appellant’s subsequently, counsel cannot jury’s he has learned the verdict and outcome therewith, questions become dissatisfied raise appellant could defenses and should presented have at trial. by appellant
No contention been made has mitigation in defense case the matter offered time discovered for after was first trial, presented it to the court at nor that opportunity by appellant’s motion for first trial, new so to a new trial entitle newly on the basis of discovered evidence. suggested by appellant be-
It has been in the case might inexpedient ap- fore us that have been pellant City in the trial cause before instant proof policy offered have insuring City from for dam- ages up $10,000, prejudiced as this could have *6 jury.
However, evidence material to establishment of a cause of or action defense cannot considered im proper simply or prejudi inadmissible because is it cial. While evidence as existence of insurance to irrelevant, is often inadmissible because there are involving numerous situations where cases evidence coverage competent. example, is For it recognized great preponderance has been in the jurisdictions including Indiana, country, in this possession liability evidence as to will where suppression excluded cases not be would exclude evidence material to the establishment of a cause of action and the of a defendant damages. sued for See cases collected annotation 775; 761, (1943), 4 A. L. R. Snider v. Truex 2d 18, 51 2d Ind. N. E. proof necessarily
It follows insurance if necessary to establish either cause of action issues, competent under or is defense may be shown. carrying insurance, ap
The issue of if advantage it, pellant to take should have desired appellant on trial of been offered by failing case, do so waived to partial defense. such defense Any long to this after effort defense the trial raise right improper appellee’s of the case was and invaded jury, to have issue of his submitted to case contrary §20, supra, Art. Con- Indiana stitution. overruling
The no court below committed error the motion for remittitur and motion for new predicated trial on the defense of miti belated gation damages. giv-
Appellant further contends the erred court ing plaintiff’s-appellee’s No. Instruction as follows: reads instructs “The Court that while it plaintiff necessary for to offer evidence some tending prove allegation each his material complaint, necessary evidence such direct, necessary to consti- but fact shall be proved by plaintiff’s may action tute cause testi- evidence as well direct circumstantial mony fairly jury finds that fact such if in evi- from to be inferred all the circumstances dence, together evidence introduced all other with allegation.” disprove
tending prove objected as follows: Appellant Instruction to this *7 plaintiff’s objects instruction to “Defendant given by the to (1) to be the Court One number cause, that said in- reason jury this the in jury (5) tells the five therein struction at line prove by circumstan- plaintiff may case that tial his evidence, fact, there circum- in was no when evidence, this trial of introduced the stantial jury Thus, the with instruction misled said cause. respect prove necessary proof to the facts to allegations plaintiff’s amended material the not, did complaint did nor and instruction offered instruction said define by plaintiff, evidence’, other thereby ‘circumstantial the term determination own leaving as to what jury make its And was. evidence circumstantial in- assume instruction jury ferences this could under would direct evidence from be drawn and circumstantial said in- evidence therefore contrary law.” struction Court, respect Under Rule no 1-7 error with giving to the shall instructions be available as appeal, except upon for new trial or cause on specific objections proper made time at trial court. Contrary appellant’s objection, to the statement refusing instruction, as cause for was cir there cumstantial evidence introduced before jury, objection therefore the and is untenable this-ground. objection Appellant’s instruction did not define the term “circumstantial meritorious, evidence” is re was quired a fuller if it desired statement of the law to made, correctly to tender an instruction ex pressing complete a more statement the law.4 objection Appellant’s sufficiently specific is not toas respect prejudicial which this instruction was misled, giving or and we conclude cannot of the instruction was reversible error. See also: In dianapolis, (1923), Traction Co. v. etc., Monfort App. 639, Ind. 139 N. E. an where identical almost instruction held erroneous ob similar jections to it. tendered argues
Appellant also the court committed error in giving appellee’s Instruction No. which is as fol- lows: preponderance you find “If from fair plaintiff recover,
evidence that entitled to determining damages you his then into consideration should take the nature and extent of his injuries in coiitro- received from collision §55.18, Lowe’s Rev. of Ind. See eases collected Works’ Praet., Hamilton, Flanagan, Tr. and Wiltrout Indiana Pract., §1510(4). App. *8 versy; injuries permanent such whether are or temporary, any ing such physical pain or mental suffer- or future, he has and suffered will suffer expenses required expend as he been has to any, required expend if and will be to fu- in the damages ture, give him as and such amount evidence, compensate will, for the under the him injuries sustained, he than has but not more the sum of Hundred Thousand Dollars One prayed plain- for in ($100,000.00), the amount complaint.” tiff’s Appellant’s objection was as follows: plaintiff’s objects “The in- defendant also to given by to (15) struction number fifteen jury reasons Court to cause may jury it that said instruction advises physical emphasis] mental consider [our suffering pain plaintiff suffered and will has limiting said in- without suffer the future injuries actually pain struction said suffered, said instruction allows ages any. further reason that if And for the jury dam- to consider speculative. And for would jury consider it allows reason that further damages proved by evidence matters ex- respect to medical with this cause both damage.” respect property penses with and permits objection of this The substance suffering, and pain to consider elements damage not shown expense property medical the evidence. is an abund- objection taken. There
The well pain suf- prior in the record ance of evidence and. suffering- pain and fering prospect of further medical evidence substantial There in the future. prospect of additional past and expense although expenses future, in the expense medical specific amounts. total not reduced to were etc., Indianapolis Traction, case We believe 495, E. N. 186 Ind. Hensley (1917), v. Co. *9 934, 940, 854, 117 N. E. a question involved similar presented in to that case at bar. In that case the Court stated: objection second “The to this instruction is appellant’s although
based on evidence indicates that contention that appellee employed physi- and cians made other efforts to a effect cure of injuries, his there is no to the evidence as amounts, obligations any, expended if he which to the may which he incurred on ac- have count Conceding of such efforts. this of the view record, we are not unmindful decisions seem proposition to sustain instructions authorizing recovery damage a for elements of issues, which within the come but are not estab- by proof, lished are presumptively harmful. On the in presumed hand, authority other more is even abundant support of the jury rule that will not compensation have awarded a fully loss by shown The latter evidence. presumption at least im- inferior in its portance give way and should not former, to the applicable proper in a case, however unless the presents strong record evidence that award, part, least, based its at on an element damage required proof and, definite doing, necessarily must have entered the realm so speculation. ...” damage us, In the case before there was evidence of equal jury’s the record the amount ver say dict. Under such evidence we cannot jury, reaching verdict, their amount purely speculation based the same or con jecture. judgment
The is affirmed.
Arterburn, J., Jackson, J., C. and concur. Achor, J., opinion Bobbitt, dissents with in which J., concurs.
Dissenting Opinion. primary pre J. —As it two are see issues I Achor, by appeal. The sented first is whether recovery amount of limited ch. Acts §2, p. [§39-1819, Repl.]. Burns’ 1952 The second controlling or not is whether effect the statute timely asserted. Appellant has motion for new asserted its trial require a separate remittitur motion damages $30,000 the sum of were in excess authorized law amount since negligence for the carried employees operation its in the officers *10 by [§39-1819, supra] vehicles, statute and since motor municipality , liability appellant of the was limited the against liability of insurance carried to the amount incident, specific the of the such insur- for amount being $10,000. ance by upon relied reads fol-
The as statute lows: municipal corporation any state, or “The there- policies empowered purchase hereby of of, is appointees, insuring officers, the insurance agents municipal employees cor- the of ... liability because im- ...
poration against loss of officers, appointees, upon by posed law such damage result- employees for or agents and loss per- by, any injury ing ... sustained from ... arising of the out by accident and son ownership, caused ... any motor owned vehicle ... use of corporation, municipal ... by such state the purchased insurance shall be policy of No such such within be contained there shall . . unless . suit ... provision insurance if there arises policy a up, aas not set will carrier ... defense, such immunity or of the state of municipal corporation,...” public of thereon out premiums pay the “and n municipal cot- the ... shall In event no funds. 301 poration case, any amount liable, ... amount, in- valid excess maximum of covering causing vehicle ... surance such . . . ... ... damage: [Emphasis . Acts . .” added.] [§39-1819, 52, §2, p. 1952 ch. Burns’ . Repl.]. quoted
It from the above statement is the last poses problem which statute and italicized us liability which be resolved in case. Was must city limited to the amount Haute of Terre city the vehicle involved insurance carried collision, provision a result supra? §39-1819,
Appellee above contends that cited statute controlling recovery. permitted amount of support In he of this reasons contention first 197, §1, [§47-2030a, p. Burns’ Acts ch.
Repl.] pro- subsequently enacted statute which limitation upon the mu- vides for no nicipality by insurance statute reason §39-1819 Furthermore, previously enacted, appel- or otherwise. adopted lant is not earlier statute asserts controlling the later enacted statute since merely an which author- former insurance statute municipalities purchase in- . izes the state its negligent operation surance agents officers, and em- vehicles its motor ployees previously had not been authorized *11 Therefore, appellant asserts that the to do. application the action which no at bar
statute has the later Acts of brought is under since nowise, dependent upon any is, au- under said act earlier “insurance contained in the stat- thorization argument appellant con- basis of ute.” the this On materia; pari are the two statutes that cludes a operate as limitation does not that §39-1819 §47-2030a, pursuant under the recoverable amount brought. to which action this was analyze responsibility it our the Thus two cited or above statutes and determine whether are, fact, they subject matter. related to the same they are, they given pari be must effect If then materia,1 is, op- statute must be each made scope separate provisions. erative within of its determining proper question, In this it that we §47-2030a, supra, under this first examine which brought whether, determine from its action was effect, language, operation and it can ascertained legislature operate inde- intended pendent adopted earlier statute §39-1819, supra. nothing language There which indicates such intention. the statute itself operational analyze therefore, We, effect determining purpose whether statute might reasonably construed therefrom. intention Obviously, purpose of to estab- §47-2030a municipality part on the lish negligent operation of motor its vehicles for the performance and firemen policemen activity duty, which constitutes their initial governmental Previously state and its function. immunity enjoyed complete from municipalities had activity unless, performance of such liability in the purchase immunity was waived perhaps, provi- municipality under adjudi- not been §39-1819, issue had which sions reported regarding cases leave which cated thing, person or to the same relate to “Statutes things, common have a persons or which class of same p. §366, purpose pari 82 C. S. Statutes J. materia.” are in (1953).
303 Clearly doubt.2 the of considerable effect §47-2030a liability municipality was to extend the of the performance particular governmental of liability function and establish that same liability municipality respect basis with activity performed by to the the officers and same employees municipality proprietary capacity. of the n by appellee, liability by As stated established dependent upon not earlier was insur- §47-2030a ance However, act §39-1819. it does follow that not amount recoverable under the later act was sub- not ject to the limitations of the “insurance act.” The liability municipality negligent opera- of the for the by tion of its motor vehicles officers and em- ployees performance proprietary of a function operation dependent upon was not the so-called act,” yet clearly operated “insurance said act as a upon limitation the amount recoverable for torts, covering event was carried ability municipality for such torts. The so- general act” called “insurance is written in broad apply is made to terms and under all circumstances municipally operated where motor owned vehicles are employees the officers and city and li- by law, ability imposed clearly established, limitation, without in the later act. Thus subject matter of clearly the latter act is covered provisions of the earlier “insurance act.” 52, §2, p, [§39-1819, Repl.] Acts ch. 146 Burns’ 1952 corporation municipal any empowered provided “liability imposed by purhase law” in the operation its motor The act vehicles. did state clear municipality beyond purpose extend the performance already imposed torts committed in the employees proprietary the officers and of the mu functions Vanderburgh County nicipality. Comrs. Flowers Bd. v. See: City 224; (1960), 2d Hummer v. School 168 E. 240 Ind. N. App. 30, City (1953), 2d 891. N. E. Ind. of Hartford indicated, aré here concerned
As above we statutory in a usual question construction with resulting Rather, are concerned with sense. we *13 which bear independent statutes effect of two rule subject It a fundamental the matter. is same subject matter to same relate the that statutes which together pari in materia order be considered must give each, possible, unless a clear if effect contrary legislative appears intention language rel. State ex the statutes themselves. 479, E. 2d Rogers 104 N. (1952), 230 Ind. v. Davis (1947), 382; Tax Div. Walgreen Income Co. v. Gross 784; Dawson Acme 418, 75 2d 225 N. E. Ind. v. (1947), App. 49, 75 Evans, 118 Ind. 553. Inc. N. E. 2d subject related to the The that statutes fact same times does not matter were enacted at different applied principle This construction is alter the rule. give statutory body whole order to effect to regard time related without to the the law on matters City respective v. passage Johnson of the acts. 17; Indianapolis 691, (1910), Ind. 93 N. Parvin 174 E. 790; Wimberg (1892), al. Ind. 30 N. et E. v. Corp. Smith, (1958), etc. v. Motors General et al. App. Ind. 143 N. E. 2d therefore, my opinion, is It that under rules of statutory enunciated, interpretation, as above §47- §39-1819, swpra, pari 2030a are in materia and they together governing law of constitute case. this statutes, construed,
The of these effect so is that municipality negligent opera- liable for policemen tion of motor its its vehicles and fire- performance duties, men of their official but municipality purchased because thé insur- had. very liability is; ance this statute, to the limited maximum amount of in- surance municipality carried the vehicles case In this maximum amount of insur- involved. coverage $10,000. ance argued case
It the facts demon- interpretation strate an that' such the statute would effect a result which in clear conflict with purpose obvious the latter law. This humane accept issue we do decide. court This must legislature they of the acts are written. We do express opinion an public as to their wisdom. The policy leg- expressed of the law as acts legislature Through for the islature is to determine. may, extreme, complete the state it. on the one claim sovereign immunity negligence from for the agents performance officers in their governmental function with we here con- are *14 extreme, legislature the may cerned. On other the voluntarily governmental immunity surrender entirely. legislature may, discretion, Or the within its liability the amount of the the limit and its state municipalities either fixed conditional By authority legislature may amount. pro- injured protection persons by providing vide for recovery damages right where such did not formerly exist, protect the same time the mu- at limiting nicipality the amount of its against maximum amount carried my specific liability. This, opinion, is presently effect of the law as enacted.
However, it here asserted for is the first time statutory upon that as to the limitation issue appellant, of the because of the by appellant, that carriéd waived because issue was in, con- was raised the trial court until after the this contention that trial. It is of the elusion majority opinion is based. Al- opinion is not tenable. my the contention In mitigation of dam- though matters true it proved in ages ordinarily pleaded and must §142, Damages p. 780 case, C. J. S. of the [25 trial majority opinion, the facts (1941)], in the stated bring rule. The is- within the case do not here damages. mitigation of one is not sue before us conduct of either concerned with not here We are injury, of the the cause party as it related to damages sustained, or the fact of the of the extent right appellant for such of action appellee’s may damages, issues which injury or similar damages. mitigation Rather, we are proved in limitation, statutory upon the with a hei-e concerned exists recoverable, limitation which amount action, cause of related to facts reason independent of the wholly operation law but action. merits was
Therefore, my opinion, the of insurance fact inject required to which not an issue proper to raise issue Rather was into the action. determined after it was of the trial at the conclusion amount of the time for because the first “insurance act” statutory limitation of the verdict operational in the case. The issue had an effect vigor- regarding there presented, law thus solely contention, the court. was an issue ous reason to there was no circumstances Under these *15 prior present to the verdict in the case. the issue supra, provide' §39-1819, proce- Since does not statutory li- dure which the limitation asserted, ability municipality I see no of a why procedure adopted reason approved.
should not be
Bobbitt, J., concurs. Reported in 183 N. E. 2d
Note. — ex et State rel. Welsh al. v. Marion
Superior et al. Court 30,253. September 26, Filed 1962.] [No.