*1 et Rust al. v. Watson. Rehearing 20,149. denied June 1966. March 1966. Filed
[No. May 16, 1967.] denied Transfer *4 Lewis, Lewis, and Lewis Lewis, D. Jordan D. Jerdie counsel, Haute, appellants. all Terre for Mann, Hicks C. Mann, Chaney, Johnson & Hansford Mann, Haute, appellee. Terre both of for Court, Superior appeal is an from the J. This
Hunter, Vigo County rendered Number Two in wherein judgment Twenty-Four appellee Thousand in favor of the injuries ($24,000) received when Dollars as a result of appel- building by appellants. The chandelier fell in a owned by the trial was overruled lants filed a motion for new which erred appellants the lower court lower The assert court. ruling specified the in its on the motion for a new trial which following errors: overruling
I court The lower demurrer. erred giving II The lower court erred in instruc- certain of the jury, conversely, refusing give tions to the jury. certain instructions of the portions Ill examination of the Numerous voir dire objections prospective continued over along appellants. This with the the the of the lower actions of injected element of insurance court into prejudice a manner trial in such so as grossly by a excessive evidenced verdict. grossly excessive. IV verdict points presented in the order above. will discuss these We
I in over- the lower court erred contend appellee-plaintiff’s complaint ruling demurrer *5 grounds complaint the the did state facts sufficient alleging complaint, to constitute a cause of action. The after building possession, the and fixtures were in the sole defendant, care control of the and that the chandelier fell ceiling injuries building causing the from of said to various appellee, stated as follows: injuries “5. That heretofore set forth were the proximate provide result of the for their failure to defendants’ place paying guests, including plaintiff, safe of which all building possession, and fixtures in the care were Realty defendants, Temple and control of said pany Zorah Com- Temple of and Zorah Ancient Arabic of the Order Mystic continuonsly and in- the Nobles of Shrine without terruption building completed year since said 1926.” appellants
The is not to contend that the above sufficient general allegation state cause of action because there is no specific allegation negligence. appellants or of also state they complaint inasmuch as made a motion make the to specific, complaint more facts in taken must be without the benefit of conclusions and inferences. agree plead appellants appellee had
We with the that the to general negligence specific use either or before the of
evidentiary ipsa loquitur principle res would be allowed. Ths stated in Wass Suter court App. 655, p. 84 N. 2d at 661: E. among “. . is some conflict as to .There authorities specific negligence pleading a whether act of waives jurisdic- pleader’s right tions hold rely upon Many this to doctrine. application proper that if case is a one for the by specific doctrine, plaintiff, pleading acts right rely negligence, doctrine does not lose his on this made, allegation negligence (cases general provided a cited) adopted Indiana this view.” has agree appellee that the failed to aver we do not general negligence complaint. in her seem say appellee merely injuries since averred complained proximately caused “the were defendants’ provide place” failure a safe without use word “negligence,” complaint fails to state a cause action. Certainly, phraseology. not misled specific appellants merely As in their motion to make more appellee specific negli- stated that wanted the to aver gence, properly which was overruled the lower court. support cannot find case
We law *6 “negligence” contention that the failure to state the word complaint, render a as bar, will the one in the case at action, insufficient to state a cause appel of nor do the support by any their 2-1004, lants contention case law. § Replacement Burns’ states: pleading part plaintiff “The first on the of the is the com- complaint
plaint. The shall . contain: . . constituting A statement Second. of the facts action, plain language, cause of out in and concise with repetition, and in such manner as to enable a person understanding common to know what is in . tended .” . clearly appellee think it can We be understood that allegation attempting general to state a negligence, and readily exemplify and motion demurrer appellee’s complaint allege general understood the negligence. 2-1013, Replacement
In addition Burns’ 1946 states: § judgment upon overruling “The demurrer shall be over; party plead reply shall and the answer or shall objection not be deemed to overrule taken objection by demurrer, But demurrer. no taken and overruled, judgment, shall be sufficient reverse the appears from the if it cause have been whole record that merits of the fairly party If determined. fails to overruled, judgment plead after the demurrer shall against upon him as rendered a default.” fairly in the court tried the merits This court feels that ruling on Consequently, affirm the lower court’s we below. the demurrer.
II court erred lower contend appellants also excluding certain instructions modifying, presenting, jury. submitting to the court erred appellants state the Instruction No. objections of the its over 1. The instruction was: pre- you gentlemen Jury, find if of the “Ladies by_a invited plaintiff the evidence that ponderance of Temple in Terre guest Haute, the Shrine defendants at that that day April, on Indiana, on 15th plaintiff impliedly held out to the defendants event building discover- except defects in said for unknown ordinary care on reasonable and the exercise of able defendants, place entertainment said
part place. building was a safe said you preponderance if find are instructed You guest plaintiff was an invited of the evidence April 15, 1961, during Temple time Shrine building being guest, such without in said plaintiff was *7 injured by a chandelier fault, ceiling which fell from she injured place of entertainment and was at said by you preponderance further find a of thereby, and exercise and defendant of reasonable that care evidence ordinary and said chandelier existing circumstances at under the said time prevented falling have and should of place, could injury plaintiff, to and that and avoided ordinary defendant to exercise reasonable or cause of failure said care was I instruct injury plaintiff, proximate of of then you plaintiff.” you should find for that require assert this instruction does The constructive, knowledge, defects their actual or of or prior duty inspection was incumbent on probability before appellants.
67 a instruc is model feel that it Although does not this court in statement of the law a sufficient it is tion, we find attempting to recover on appellee The volved. negligence. The instruction stated theory of plaintiff a for the return verdict to order preponderance evi must find a appellee, first duty following: (a) appellants had a to dence the place plain provide a for the care to safe reasonable exercise (b) failed to exercise the tiff-appellee, reasonably person prudent degree would care which breaching thereby similar circumstances like or have under duty (c) proxi duty, that such breach of was the said injury appellee. It uncontroverted mate cause negligence. are the elements of In Budkiewicz v. these Ry. Elgin, (1958), 535, 540, Eastern 238 Co. Ind. Joliet Supreme 897, 2d our N. E. Court stated: 150 negligence (1) has three essential “Actionable a elements: act; duty imposed law do or not a certain to do duty by (2) a of that an act or omission to act violation duty; injury (3) of that constitutes breach which duty.” Neal, proximately caused such breach of also See v. Builders, (1953), 160, Inc. Admr. Home 111 Ind. N. Co. v. 280; Haute, etc., Phillips (1921), Terre Traction 2d E. 740; Indiana, etc., 374, Coal 132 N. E. Co. v. Neal 850; Hoberg 458, Faris (1906), 166 Ind. 77 N. E. et al. 134 Ind. 1028. N. E. Consequently, mandatory we believe instruction stated necessary recovery theory all elements to a on the negligence. duty inspect is a further clarification special standard reasonable care under cir requires cumstances. We specific know of no rule that duty inspect mandatory statement on the to be included in a negligence. instruction on remainng objections to this instruction and the ob-
jections appellee’s Instructions Nos. 1 and which given by Supreme the lower have court been waived. provides: Rule 2-17 Court *8 appellant shall Appellant’s Brief. The brief “Rule 2-17. disclosing: (e) ... and clear statements contain short assignment upon except relied of error After each ruling — each cause trial —and after on a motion for new concisely upon, be stated there shall a new trial relied for the basis of ruling of, complained objection being pre- exhibiting clearly sented, points and of law of fact citing authorities applicable, are and how setting upon, and out verbatim relied and statutes an have are deemed to parts of such statutes relevant important original bearing. (f) Appellant’s brief shall . . assigned a new trial not for and causes indexed. Errors
be directed, to be waived.” shall deemed as herein treated supports case law which appellants have failed to cite instructions; alleged there error in said their contentions (f), objections Rule 2-17 are waived under fore, such 593, E. Wright (1958), 147 N. supra. 237 Ind. v. State (1963), 135 Terrey et 551; et Brinckman al. al. v. 2d 760; Indiana &Gas 479, 2d Southern App. 194 N. E. 531, 2d App. 180 N. E. (1962), 135 Ind. Bone Elec Co. v. 2d App. E. N. 375; Baum 133 Ind. Collier 554. erred in its lower court assert that the also 21, 24, 28, 31 Instructions Nos. tendered
refusal of their stated: Instruction No. 21 and 34. neg- responsible theory held “A man cannot be on the injury
ligence unless charged danger part an from an act or omission his for knowledge reasonably appears he had or knowledge involved act or omission with another.” fully No. covered in Instruction This matter was 26, which states: you person responsible held that a cannot be “I instruct negligence injury theory from an act or on omission of the evidence edge preponderance inspect appears from a unless it knowl- he had actual or constructive reasonably charged actual or constructive with or danger an-
knowledge or omission involved that the act other.” refused, also stated:
Appellants’ Instruction No. *9 anticipate required person or foresee or a is to “While likely happen, usually happens guard against it does not or is to what require anticipate provide him or foresee and to likely happen and against that which is usual and not to provide anticipate or and require him foresee it does not against to likely happen, to is and not only not usual that which slightly remotely words, is or, that and which in other general is not probable. The such cases whether test consequence possible, injurious or was but wheth- result according likely probable; it is to occur to er re- experience persons. person A cannot be held of usual merely probable ac- consequence sponsible is for which only experience, as a result or but cording to occasional ordinary according consequence probable is to which experience of mankind.” usual fully following covered instructions: matter was This Appellants’ Instruction 16No. Indiana, of “You are instructed under the laws of the State determining is not whether an act or omission or upon depend negligent, question whether or not must person injury been an reasonably reasonable care kind to some could have of some omission; or expected to result from such act guard anticipate requires person to likely happen, against usually happens to or is what negligence; . . .” failure do this is
that a Appellants’ 18 Instruction No. foreseeability an essential ele- “You are instructed that liability for an proximate and that no exists
ment of injury cause reasonably damage have been could not or proximate conduct.” anticipated as the result one’s Appellants’ Instruction No. an essential element instructed that “You are further requirement must
proximate the result cause is might anticipated reasonably or have been foreseen such as experience ordinary man.” Appellants’ Instruction No. you responsible person cannot be held “I instruct injury negligence theory from an act or an
the omission appears preponderance inspect from a unless had actual or constructive knowl- evidence he of the charged reasonably edge actual or with constructive or knowledge danger the act or omission involved another.” Instruction refused, pro- No. which was vided : “You duty are inspect instructed that arises from knowledge possible proba- defects or their reasonable
bility. So, you in this case if preponderance find from a evidence that defendants did not have actual or knowledge constructive of the defective chandelier or its fastenings, suspect or had cause to the chandelier its or fastenings were defective on and before the date of the acci- question, you dent in then you are instructed that unless preponderance find from a of the evidence there was actual knowledge or constructive part on the defendants, of of said defendants to duty defective condition there part was no on the inspection make of said chandelier and *10 fastenings.” its fully This matter appellants’ covered in the Instruction given No. 26 by which was quoted the court as above. Appellants’ Instruction by No. 31 which was refused court stated: ipsa of “The loquitur rule of res plain- does not relieve the tiff evidence it proving of the by burden preponderance negligence part on the defendants, nor does presumption raise plaintiff in her favor. The in this case, May Watson, Ida will not be entitled ato verdict un- jury by less she preponderance satisfies the of the evi- injuries dence that her by alleged were caused defect chandelier, including fastenings, its attributable to proximately by negligence.” caused defendants’ fully
This
matter was
appellants’
covered
Instruction
given
No. 32 which and stated:
“In these
I
ipsa loqui-
instructions
have used the word ‘res
Therefore,
necessary
tur’.
it is
for me to further
instruct
you concerning the
meaning.
use and their
ipsa
The rule res
loquitur
imply
does not
happening
the mere
presumption
negligence against
accident either raises the
defendants,
proof
or shifts the burden of
from the
plaintiff.
application
simply
of the rule referred to
accompanying
means that
the occurrence with its
circum-
may
stances
such
as to
warrant
inference that it was
negligence,
subject
the result of
rebuttal
but
an inference is
such
other evidence.”
give
opinion
We are of the
that the lower court’s refusal
all of
immediately
instructions
noted
here
does
inabove
not constitute reversible
It is axio
error.
matic
required
trial court is not
to instruct
any specific
rule of law more than once.
Robbins,
Fugit
(1920),
321;
Exr. v.
Ind.
126 N. E.
Vandalia Coal
(1910),
Co. v. Yemm
175 Ind.
92 N. E.
49; Farm Bureau Mutual Ins. Co.
Seal,
(1962),
Admr.
269, 179
App.
760;
Kempf
E. 2d
N.
v. Himsel
App. 488,
121 Ind.
Appellants’ Instruction provided: No. 34 which was refused you “I instruct that the laws of the State of Indiana rec- ognize possibility accident, of a mere is, an occur- way negligence rence which is in no due to the fault or anyone. happening accident, resulting of a mere injury support damages. cannot verdict for Therefore, you if injury damage find that or plaintiff, suffered May Watson, Ida accident, the result of a mere then recovery by plaintiff there can be no your and it will be duty E. return a defendants, verdict Rust, Paul Buckingham George Martin, E. as Trustees of Temple Zorah Ancient Arabic Order of the Nobles Mystic Temple Realty and Zorah Company.” Shrine *11 fully appellants’ This matter was discussed in Instruction given No. was 27 which and reads as follows: “You are instructed unavoidable accident has been happening defined to be an occurrence or as under all the attendant circumstances and conditions could not have been prevented by using this ordinary foreseen So, or care. in you by case, preponderance if find of the evidence that the involved accident was one that could not have been prevented by plaintiff or foreseen either defendant, or
72 you ordinary care, this then I instruct the exercise of accident, plaintiff recover.” cannot and
was an unavoidable
by
34
the
No.
tendered
Instruction
noted that
It should be
by
appears
a standard
the court
to be
appellant and refused
theory.
in
“mere accident”
Similar
the
instruction
upheld by
and the Su
had
this court
been
structions
Alvey
preme
prior
cases Miller v.
to the
Court
Evans
and
(1965),
Ind.
Ill during exami- appellants contend that the voir dire by judge, prospective news- nation of the comment by appellee, and paper articles, questions counsel judge imputed fact instructions knowledge insured; appellants presumed this prejudicial appellants’ pre- cause of action receiving trial; appellants vented from fair grossly excessive reason verdict was thereof. alleged
As to the remark to have been judge, made during contend that voir dire examination adjournment reporter “after an before the court had returned,” court made a remark counsel prospective presence implied which appellants present carried insurance. by an question affidavit in the They motion for a new trial. veracity that the contend pre- also this document must be
73 support filed. In affidavits counter there no sumed since Supreme Rule appellants cite Court the of their contentions states: 1-15 which by affidavits, supported trial a new is motion for “When . as evidence without be considered shall . affidavits . Such hearing motion, and on the on the thereof
the introduction excep- part record a bill of a without shall be . . .” tions 1-15, supra, not interpreting do Rule cases (1962), reasoning. appellants’ Dull State
support at 633, 523, Supreme 242 180 2d Court stated Ind. N. E. our p. 638: alleged signed presented by is affidavits “The misconduct part by appellant and made
and sworn presented They not motion this court a new trial. are for by any exceptions. Rule 1-15 of this bill being provides filed motions court for affidavits with trial, such court limited the use of for new but this has possible a bill where it is to obtain affidavits of cases not exceptions purpose. The use the affidavits proving place primarily purpose of for the facts that took presence McCoy of the court.” also v. State outside See 241 N. and Nix v. State E. 2d 43 Ind. (1960), 240 326. N. E. 2d appellants attempting to which the are Since the matter place knowledge this court occurred within the before court, proper present method to it to this court lower by exceptions rather than affidavit. bill they appellants’ panel,
In the motion to also dismiss newspaper articles which referred to Amer allude to two Company as the If ican States Insurance defendant. thought might newspaper articles these jurors, prejudiced they have could have raised this during prejudice question dire If the voir examination. responses, their could have demonstrated moved for Therefore, disqualification opinion for cause. are of we allegations instance error in this are well taken. questions by appellee
As to the counsel for the instructions which the contend erro- court neously imputed prospective the existence of insurance to the examination, appellants specifical- the voir dire *13 ly following raise the occurrences: you
(a) acquainted “Are with Mr. Grosbach, W. H. the adjuster for the American States Insurance Com- pany?” question repeated may This times throughout the voir dire examination the counsel plaintiff-appellee. for the (b) point during high At one the voir dire a officer brought prespective jurors. Shrine was before the In the quaintance “And wouldn’t affect asking course of the as their to ac- man, question the with the was asked your thinking it if he wanted paid this claim or if he wanted it denied?” During (c) questioning juror prospective agency the course of who was an an plain- officer of insurance challenged prospective juror tiff’s counsel for agency cause due to the fact that sold insurance Company American States Insurance which in- sured the defendant. The defendant’s counsel stated any that he could not see reason for In cause. that followed discourse the court stated “There isn’t any question still entitled to plaintiff about that. and, jury have an unbiased there are that; rules in certain relation to and if some other person financially say it, I interested in would that they you say right interrogate would have to as to that. If they now don’t have insurance with why company, they did, you
that would I assumed or him if —but objected have the first time he asked company.” stock in he had this point during (d) At another the voir dire examination plaintiff question after the above had asked (a) under objections and the defendant’s overruled, were the defendant asked the court that jury to instruct insurance was not an issue in the case. The court regard in this stated You “COURT: want me in- to just improper got them it’s when I through struct sustaining 7 will it? admonish the that this case
7S plaintiff is a case between the Shrine. only questions asked is because it reason these are insurance Com- has been shown to the Court that the anybody pany with connected has a financial interest and interrogate, they right order have a them they acceptable as are to determine whether or jurors.” question of a (e) plaintiffs’ counsel also asked this develop juror Fick, prospective if should “Mrs. Insurance Com- in this case that pany that American States case, would is interested in the outcome of you you tendency feel have a to make you fact team were —the on the same gravitate company their policy hold —and side of case?” objected Mock, (f) “Mrs. would question to was Another you you any tendency feel had common have Insurance Com- cause the American States with pany?” (g) counsel the defendant’s another discourse between following “MR. LEWIS: was stated and Judge, Defendants at this court cause, try is sworn before instruct Court time move that the Jury insurance is not Jury, admonish *14 case, considered be issue in this and should not arriving of a And that the motion at verdict. to had in mind at COURT: I Defendants say: this time. plaintiff a case between This is only there’s ever named. The reason as defendants any questions insurance was relative to the been they had fact account a that it was shown of quite therefore, monetary interest in this case be associated with a that to let they seemed to number of a that account— to certain extent —on interest unbaised, determine who was free Plaintiff questions. those But so ask were allowed to far concerned, between the it’s as the cause action of emphasis) (our plaintiff and the defendants.” Consequently, turn to a consideration now of we allegations pertaining specific of error as occurrences point III. set forth above under reviewing improper case in the area refer law during trial, to insurance we have found distinct
ences two 76 admissability
areas. The first area concerns the
payment
evidence
to
defendant’s insurance re
judgment
and remarks made
the defendant’s
during
counsel relative thereto
the course of the trial. Gen
erally any
inadmissable,
such evidence
remarks
or
are
but
may
in certain instances such errors
be cured
a court’s
v.
Taggart
(1926),
633,
Keebler
instruction.
198 Ind.
154 N.
v. Mann
485;
487,
(1942),
App.
Helton
E.
40 N. E.
Ind.
exceptions
general
example
rule,
2d 395. There are
coverage
the fact
where
of insurance
a material
is relevant to
v. Truex
(1943),
18,
issue.
Snider
See
2d
N. E.
Van Drake v. Thomas
477;
(1942),
App. 586,
110 Ind.
38 N.
McDonald v. Swanson
878;
App.
2dE.
103 Ind.
rulings
The second area
exception
case law
principles,
to the above
the voir
to-wit:
dire exam
prospective jurors.
ination of the
subject
This is the
we
with which
are concerned'in the
at
case
bar.
The first case we find in Indiana is M. O’Conner & Co. Gillaspy (1907),
Supreme
170 Ind.
77 inquiries. case, In instant the counsel such the as related to juror possible inquired prospective as to his con of each casualty companies. The court found with insurance nections Brass also v. Kokomo Works violation. See no Goff App. E. 312. N. expressly the discretion of The first case which overruled Gillespie in this matter was Inland Steel Co. the trial court asking Counsel, if E. (1914), 181 Ind 104 N. 76. while the were interested in or connected with the company Company, as “the described the Travelers Insurance making part casualty company in this that is defense (our emphasis) The counsel for the defendant at case.” objecting requesting in tempted to correct instructed not to consider fact struction objection and motion were overruled. In insurance. The Supreme court, p. reversing Court at 649: the trial our stated justified. shown or rulings can whatever manner not be "These appellant suggested, fact insurance was jury cautioned and entitled to have the instructed was that such fact bearing the case. had no on the merits of clearly appellant was not disclosed Had record question propounded, the that it as harmed asked emphasis) fact might not, alone, error, (our be reversible . . .” ruling court its should be noted based two It facts: court to instruct to consider (1) that refused only (2) case, merits court felt prejudicial the record two errors were dis possibility an excessive verdict. closed the This improper find in few cases we Indiana where the one proceeding beyond counsel injection of insurance dire, good voir faith examination on the resulted of a bounds indicated that the mere reversal. court in a being questions were asked without corrected that such fact per se; instruction, error reversible but the record by an appellant in some manner. harmed indicate must *16 443, Lilly (1919), 139, In Martin 188 Ind. 121 E. v. N. during plaintiff voir dire counsel for the stated that he could prove that the defendant was insured and policy $5,000. were The court found this to be limits beyond good bounds of the limitation faith by Supreme curable instructions. also not Court (1) the error of the issue reversed on trial court on “respondeat superior” holding doctrine of there was application doctrine, to sustain evidence insufficient said (2) an erroneous instruction. import For cases similar in courts which the Indiana examination, no error in the voir dire v. found see Gamble (1949), 455, 629; Lewis 227 Ind. 85 E. 2d N. Silvestro v. 629; (1943), 163, 222 Walz Ind. 51 E. 2d Riechmann v. N. (1943), 10; Cary 628, Reasner 221 Ind. 51 N. E. 2d Jones v. 268, 944; (1941), 219 Ind. 37 N. 2d Swartz E. Gerlot v. (1937), 960; (1943), 212 Ind. 7 2d N. E. Heinrich v. Ellis App. 478, Willey, 113 Ind. 48 N. E. 2d and Braman 96 v. (CCA 7th, 1941). 119 2dF. 991. cogent “good inquiry”
A discussion of the principle faith Ransburg King found in App. pp. E. 2d The N. 822. court states at 533-534: perfectly proper party “While it is one of have agents its claim counsel, nevertheless, insurer’s so assist stranger when one not of counsel and a to the record actively participates such litigation in conduct of the in manner, opposing justified counsel is in dis covering quainted be limited prospective from whether are ac inquiry with him. extent must course necessity created, situation so . . . (our emphasis) exemplified stage As herein at proceedings, impartial plaintiff’s primary interest in is the concern. Consequently, inquire counsel should be able to as to any juror’s relationship company to an insurance financial which has a interest pro- result of ceedings. “good inquiries.” The case law limits this to faith particular The essence of this limitation is that the facts and addition, circumstances of each case will be determinative. if counsel circumvents this limitation and it is not corrected court, an instruction from the this does constitute per se, reversible error but must be shown the record inquiries such clearly prejudicial. permissive propriety inquiries of such dire ex voir upon premised negligence aminations is fact cases compen wherein the defendant has insurance that will losses, his usually sate him for contract insurance *17 provides Therefore, a defense clause. in in most attorneys stances, the company for the insurance are de fending together they case, adjusters the the with claims are negotiators. investigators It is either their decision litigate they very Consequently, or to are settle claim. litigation having as active well as a financial interest Any prospective juror in the outcome. connected such with company be could influenced. viewpoint party From a realistic the named is a defendant only his requires. to the extent insurance contract This is one where, practically speaking, instances
of the few identity facts is trier of not allowed to know of a jurisdictions party in real interest. feel Some so strongly they about this have allowed insurance joined party carrier be defendant. This was done enabling legislation, courts Texas without whereas in permitted and Louisiana this has been statute. Wisconsin Annotation, pp. 4 A. L. R. 2d at See. 766-767. Indiana gone far. has justification limiting plaintiff
The in his exami- jurors to their nation of interests and in- connections with companies presumed due prejudice probably surance jurors in the minds be created if they will realize the is insured. present. defendant certain anomalies are case via the presumption arose that such It should be noted early continued centuries. The 20th 19th in the late law seriously ques- prejudice can presumed be recognition of such decreased, can prejudice has not today. if the Even tioned good in- faith limitation of such questioned whether the concealing from the any pragmatic effect in quiries has Two considerations is insured. defendant fact relevant. are negligence majority jurors cases enter
First,
preconceived idea that the defendant
with the
court room
proposition
rationale of this
insurance.
carries
Causey
(1958), 164 Cal.
expounded in
v. Cornelius
court stated
porations, . . cation . excluding (with limita- only justification for the rule sup- is the tions) existence of insurance evidence of if jurors verdicts led excessive will be into position coverage. To- insurance
they aware of defendant’s become (sic) . has . . . insurance . . day a naive conceit this is naturally assume as common become so against li- is insured defendant box enter *18 ability.” relative p. it is noted 19, Annotation at 2d L. In A. R. § knowledge jurors insurance of of the common fact of to the negligence coverage cases: in by plaintiff’s probable a reference counsel that . . it “. prejudicial is insured is not as suggesting defendant that impartial right a fair and trial as a defendant to of
heretofore.” entirely might today different matter Indeed, seem that concept the matter of the courts concern should prejudice and that is if a defendant in a presumption coverage. typical negligence insurance case would be without casualty though Even is referenced automobile above insurance, totally inapplicable to we do not believe that it is the case at bar. inquiries
The second relates the latitude of consideration exemplified allowed to counsel. It has the case law been goes inquire permit in Indiana so far as to counsel to juror specific relationship into of a to a insurance company per more involved. It is conceivable that might questions premitted tinent in be where the resultant King Ransburg, ferences would even more evident. See v. supra. Certainly inquiries jurors probably these via will become aware that a defendant is insured. By scope reason of allotted freedom as the in- n juror’s
quiries prospective into connection with a finan- cially quite company, interested insurance it is evident acquire knowledge probably will de- fendant is insured. When this is considered with the fact jurors probably preconceived have a idea that remaining insured, defendant there can be little doubt great majority of cases or believe know that a defendant is insured.
Therefore, appeal, questions where on it is contended that injected and comments on the voir dire have the element of case, insurance into the we must first consider whether questions such and comments are within the rule good questions limitation. If the and comments faith duty are outside such limitation then it is this court’s prejudicial effect, any, their determine if for the case law suggests necessarily Indiana their existence does not per constitute reversible error se. Inland Gillespie, Steel Co. supra. A further discussion seems to' be necessitated case, supra, questions presented Inland Steel .as result appeal. bar, In the case at contend that questions propounded through g (a on the voir dire here- *19 forth) concerning inbefore set the existence of insurance beyond good (1) consequently went bounds of faith apprised prospective jurors were exempli- prejudiced insured and such awareness as grossly fied what the excessive characterize as a verdict, (2) merely com- court’s instructions pounded point and did not the first correct the error. As to posed above, regard inquiries appellee’s made questioned jurors’ acquaintances counsel which “Mr. with adjuster Grosbach, the for American Insurance Com- States pany,” (see a, swpra), appellant states that these were beyond “good the bounds of the faith” limitation.
all the surrounding circumstances trial be considered. must present This man was at the dance the chandelier fell. when high He was also a official He the local in the Shrine. adjuster county States, company American which carried He could the insurance involved this case. Seemingly, have a been called as from review of witness. record, very locality. man in he was well known Certainly any acquainted prospective jurors of the who were capacities with this man in either could been of his have in- viewing necessity excluding fluenced. In who might acquaintances people be influenced their con- with case, questions say nected with we cannot that the in this regard improper. were remaining questions (see through and instructions b
h, supra), shall combined for discussion. We do feel points properly that the can be considered raised out of con- Consequently, we have text. reviewed the entire voir dire doing so, prospective jurors examination. we find that the many questioned points relationship at to their They American States. were asked if owned stock States, liability in American and who carried their auto in- During questioning prospective juror, surance. Haehl, Vice Steen, Morris E. President of Allen & various relationships agency were discovered. He worked for an which acquainted He was with sold insurance for American States. adjusted claims of had some of the Mr. Grosbach who *20 question- policies. agency In the under American States the ing juror, Dinkle, prospecive was of another John W. Agency that Forrest which shown he worked for the Sherer handled some of sold insurance for American and also States acquainted the the Shrine’s insurance. was also with He many agency’s claims. defense counsel who had defended addition, personally prejudiced he would be stated that he claims, to his connection with the insurance and due business etc., to the extent that he favor a lower All would verdict. questions unobjected proper. of the above were and were considering points reading After all the revealed from a examination, defy dire we find the voir it would reason to point jurors appel- that at this the did not realize the believe implausible lants were insured. becomes more when it This jurors with the in cases one combined fact that such as the generally preconceived bar have a idea the defendant at that is insured. jury probably
Consequently, the knew of the existence of They knowledge by acquired questions phrased insurance. this during objected to, dire examination which were not voir objected completely proper, and some which were which were proper. appellants but then would have us reverse subsequent decision due court’s references to the to the company’s insurance material interest in the trial jurors imputed that these comments reason to the that probably in al- were insured when fact the cognizant appel- ready properly been made had of this.The say appellee that counsel for court or lants do not jury attempted to the that the case was not between to state jury appellants, rendering appellee and the or that the should consider the fact that the insurance com- their verdict damages appellee. any pay awarded to the pany would agree contentions that We do not with (c, compounded d, g, supra). the error and instructions court’s Indeed, contrary, we hold to the for the record shows continually the court admonished only appellee and case was between arriving at be considered in insurance not to minds, jurors’ a verdict. If there was this doubt given clarified the instructions further verdict, before retired to decide their to-wit: Appellants’ tendered Instruction No. 14 reads follows: you “The a cause of action Court instructs defendants, brought by against plaintiff only parties are this cause action. these company no You are further instructed that insurance party action, cause issue of in- is surance is involved in this that no action; only this cause you by plaintiff’s issues issues be tried are the formed complaint the defendants thereto.” and the answer of *21 Appellants’ tendered Instruction No. reads as follows: concerning “During your questioning fitness to serve the questions. jurors you several as Attorneys of has been asked each right jurors any question point, have the to on case or which no matter related to the not on whether your qualifications to as desire to seek information relative right jurors. jurors you to assume But as have no whatever you any questions jurors infer asked that there or is from ques- asking such facts case for in the in this basis try exactly upon the issues and tions. You are to this case by complaint, thereto. plaintiff’s defendants’ answer formed solely in are as stated these You determine from law to in this case from the evidence introduced instructions rights parties of the hereto.” gain prospective examination the voir dire When on through ques knowledge coverage defendant’s insurance questions proper objected were which tions not grounds objected though to, there be no even then will appeal merely were other because there on reversal beyond good faith and not possibly limitation questions prejudicial in possible error For cured instruction. does not This harmless the former. is rendered latter gross part misconduct on the encompass situations definitely jury infer to the court which or the counsel and that the the incident a verdict not bear defendant will verdict, their jury fact in etc. should consider this questions bar, are in instructions not case at in the category. supra, p. Cary, at Supreme stated in Jones v. Court Our 278: appellants stated, the harm claimed “As above imparted this remark was that have resulted from the Later jury were insured. information that clearly trial, introduced which evidence was No were insured. such evidence has informed the error predicated the introduction of assigned. evidence, there- introduction of such
been any possible fore, error of court rendered harmless overruling the motion.” Although Lewis, supra. cases are these also See Gamble they are not bar, at in that not on “all fours” with the facts examination, dire concerned with errors on voir concept holdings premised similar are on the plain informed of harmless error where by questions and comments which were not insurance tiff’s objected proper. merit Therefore we find no and/or questions and in as to contentions structions. fully cognizant apparent inconsistencies
This court is knowledge e., area, in when the defendant’s in this i. brought jury, properly it is as surance is *22 knowledge prejudicial, to be but when the same sumed brought manner, improper an then is via concepts prejudicial. ex In assumed to view it is many (a) that authorities seem to view pressed heretofore injecton of insurance presumed prejudice from the into non-evident, (b) jurors have, in the that a trial negligence cases, preconceived majority idea that a insured, (e) defendant that counsel allotted such inquiry juror’s prospective a wide latitude of as to a con- company nection with insurance which has a financial in- verdict, remaining terest is seems there is no reason regard injection for the in limitations of insurance as expressed by the case law its with inherent inconsistencies. might properly These legislature, be the concern of the or of Supreme Rule, permitting joinder Court Court in company certain of an party cases insurance aas real province interest. these matters are not within the of this court.
IV
independent point
assert under an
in their
grossly
motion for a new
trial
excessive.
verdict
considering
area,
repeatedly
our courts have
justify
held that
in order
a reversal on these
grounds
damages
“. . . the amount of
must be so out
rageous
impress
enormity.
as to
the court at first blush with its
etc.,
Louisville,
Kemper
R.
(1899),
v. Co.
153 Ind.
Hines,
Nichols,
E.
also
N.
931.” See
Director v.
(1921),
Admr.
140;
App. 445,
76 Ind.
130 N. E.
New York Cent.
R.R.
Co.
Johnson, Admx.,
(1955),
etc.
2d
127 N. E.
603; Indianapolis Transit, Inc.
v. Moorman
134 Ind.
App. 572,
Upon a of the most review evidence favorable to the award damages jury, opinion returned we are of directly reasonably have found could or inferred following immediately prior the existence facts: good injury, appellee said health and able to carry activity housewife; falling normal out of a that the right various lacerations chandelier caused about her head and major shoulder; (4) laceration on her head was four through long bone; cut hospi- to the inches she was week; scalp slowly for a wound her talized healed glass causing out fine bits worked surface in-
87 fection; region pain that she had severe and stiffness in the back; upper of her neck and that had she headaches that week; occurred two or three times a that she to return had hospital (5) day period; for a five scars she had shoulder; her head and that she under the was care times; different doctors at various from December through required the fall of 1963 she was to wear traction periods day, device on her neck for certain except period undergoing surgery. for a short when she There appellee longer also evidence that could no do heavy testimony housework. There was also medical pain in her permanent, back and shoulder was and she get only could relief from it when she would use traction. expectancy years. She had life of 36.56 say We cannot the evidence was not sufficient to justify verdict or that was motivated com- passion, improper bias or some other element. points
We have considered all properly of error asserted by appellants and find that established, no reversible error was and that judgment verdict of of the court should be affirmed.
Judgment affirmed.
Smith, J., Bierly Mote, P. JJ. concur.
ON PETITION FOR RE-HEARING. petiton re-hearing, appellants J. On for con Hunter, tinue Legion to advance the case of Evansville American etc.
v. White
239 Ind.
The that contend duty inspect was evidence in error for there no knowledge of appellants had actual or constructive Evansville, supra. citing This in the winch cable defects or 26. We Instruction No. was further covered in agree the court in order for would with jury, have evidence would to be to so instruct such contain we find the record does evidence record. knowledge possible appellants had constructive defects. placed in The evidence indicated chandelier (34) building thirty-four years prior some to the accident. hundred, weighed approximately chandelier one thirty fifty (150) pounds. (30) floor It feet above the attached inch cable to winch which was used apparatus This to lower the chandelier to the floor. placement. area had been in continual use since continually occupied immediately below the fixture was above, public evidence outlined invitees. view of the period we such a alone feel of use would constitute possible notice constructive defects. appears such record contained evidence that'
Indeed period in calls for of time and the normal instance use procedures entail intermittent maintenance which continual inspections. case from that This alone would differentiate this knowledge Evansville, supra, constructive defects where merely How- arise due to continued use of chair. did not years period ever, a used cable winch over knowledge possible itself, would constitute constructive duty giving inspect circum- rise to a under the defects presented in facts at stances bar. *25 remaining put by appellants in case law forth
The way supports to this in no relates or relation to instruction given objections objections during could the the trial nor this relate to instruction. instruction, at- appellants, discussion this
The their ipsa improper apply loquitur res tempt that it was to to assert the instruction referred to had no case. ipsa objection bearing loquitur, nor res was such within at the stated trial. those complain appellants further we petition
In their objections partial their lower court’s consider failed to write Instruction No. 16. As we are forced to of their deletion us, placed Warren Indiana before points of error on all 93, 399, (1940), E. 2d shall Telephone 217 Ind. 26 N. we Co. appellants’ point. consider this instruction as tendered is as follows: Indi- “You are instructed under the laws of the State of ana, determining whether an act or omission is or is not depend upon
negligent, an question must whether or not injury person kind to some could been some have omission; reasonably expected to result from such act or requires guard person anticipate reasonable care against and usually happens likely happen, what or is to reasonable negligence; a failure to do this but guard care that against require him to foresee does not likely occur, only exercise which not usual not degree reasonably person care under the same that would exercise which and careful circumstances.” or like beginning The court deleted the last clause rea with “but sonable care.” contend that this deletion was improper quote Chicago, as this is a verbatim from etc., 231, R. Co. v. Dinius 170 Ind. place, proxi N. E. In the first said case 9. deals with foreseeability. mate cause which the element contains Sec injects ondly, the tendered instruction reasonable care and foreseeability confuses such with which was done in the Consequently, part case cited. of the instruction deleted proper fact, statement of the was not law involved. In might properly court deleted more than did. lower have proximate Thirdly, adequately reasonable care and cause are 7,6, and further covered Instructions Nos. 30; and, previous opinion, 23 and as we held in our required point is not to instruct a on a lower court more than once. law petition
Additionally, assert in their for re hearing holding this court erred in the various judge
questions
counsel and the instructions
during
the voir dire examination of
were not
holding
errors,
ruling
as our
reversible
contravenes the
*26
Supreme
Lilly (1919),
in Martin
precedents of our
Court
v.
Gillespie
139,
443 and Inland Steel
121 N. E.
Co. Ind.
188
91
633,
(1914),
Therefore, no reversible there was error to such questions and instructions. re-hearing
Petition for
denied.
Rehearing
Reported in 215 N.
2d
denied
E.
42.
Note. —
reported in
Brandon v. Town of Chesterfield Plan Commission et al. May 20,469. petition rehearing Filed 1967. No
[No. filed.]