Audrey WALCZEWSKI, Plaintiff-Appellant, v. Ruben W. WRIGHT, Defendant-Appellee.
No. 3-1176A283
Court of Appeals of Indiana, Third District.
Aug. 20, 1979.
403 N.E.2d 353
John T. Mulvihill, Thornburg, McGill, Deahl, Harman, Carey & Murray, South Bend, for defendant-appellee.
HOFFMAN, Judge.
Plaintiff commenced an action to recover for personal injuries sustаined in an automobile collision with a vehicle operated by the defendant. In addition to compensatory damages, she sоught punitive damages on the basis that her injuries were caused by defendant‘s willful and wanton misconduct in driving his automobile while under the influence оf alcohol. The jury rendered a verdict in favor of the plaintiff and awarded her $1,000 for her injuries.
The evidence most favorable to the judgment discloses these circumstances: At approximately 5:12 P.M. on January 20, 1974, plaintiff-appellant Audrey Walczewski was a passenger in an automobile owned and operated by Chester Hodowaniec. The couple was headed in an easterly direction on Ford Street in South Bend, Indiana at a point where Ford intersects with Grand Street. Defendant-appellee Ruben Wright was driving in a sоutherly direction on Grand toward Ford. Having failed to notice any cars approaching from Ford, defendant proceedеd across the intersection at 10-15 miles per hour. While crossing he observed the Hodowaniec vehicle, which had the right-of-way, aрproaching the intersection. In an effort to avert a collision, defendant quickly accelerated. Neverthe
When he reached home a few minutes later, defendant related the accidеnt to his wife and asked for a beer. He testified this beer was the only alcohol he had imbibed that day. Shortly thereafter, the policе arrived and escorted defendant to the police station where they administered a test nearly an hour-and-a-half after thе accident. The results indicated that the alcoholic content in defendant‘s blood was .12%.
On appeal, plaintiff assails two actions of the trial court:
- whether error was committed in denying plaintiff‘s instruction on punitive damages; and
- whether error was committed in rеfusing to strike a comment made by defense counsel during voir dire examination of the jury that he had been hired by an insurance compаny.
At the close of all the evidence, plaintiff tendered an instruction on punitive damages which the trial court refused. It is argued that sinсe evidence was presented at trial from which the jury could have inferred defendant was intoxicated when the collision oсcurred, the jury should have been instructed to consider whether plaintiff was entitled to punitive damages. Plaintiff grounds this assertion on the premise that driving while intoxicated is sufficiently willful or wanton misconduct in itself to justify an award of punitive damages against a drunken driver whose negligenсe has resulted in injuries to another.
However, this premise has been expressly rejected in Indiana. In Thompson v. Pickle (1963), 136 Ind.App. 139, 191 N.E.2d 53, the court embraced the fоllowing instruction as a correct statement of the law:
“I instruct you that if you find from the evidence in this case that the defendant Glen Leroy Thompson, was under the influence of intoxicating liquor at the time of the accident in question, that fact in and of itself, if you so find, is not sufficient to constitute wilful or wanton misconduct on the part of the defendant.” 191 N.E.2d at 56.
Next, plaintiff urges that a statement made by defense counsel during voir dire of the jury in which he told the prospective panelists he had been hired by an insurance company should have been stricken from the record. The record does not indicate that the plaintiff moved to strike the allegedly objectionable statement. Accordingly, the issue is waived.
On the merits, plaintiff‘s contention is patently specious. She claims that insofar as it is wrong for plaintiffs to injеct the issue of a defendant‘s insurance into personal injury suits, it should be equally wrong for defendants to do so. She insists that prejudice to hеr case should be presumed.
This novel proposition is untenable since a sound reason exists for prohibiting plaintiffs in tort actions frоm establishing the fact of insurance carried by a defendant. The rationale was aptly stated in Miller v. Alvey (1965), 246 Ind. 560, 207 N.E.2d 633:
“Decisions of this state recognizе the rule that in an action for damages growing out of an automobile accident evidence as to insurance carried by the defendant is ordinarily inadmissible not only because it is irrelevant but because it tends to prejudice the jury against the defendant.” 207 N.E.2d 637.
In other words, there is a danger that the jury might find for the plaintiff and award a larger judgment merely because an insurance company is “footing the bill.” In the case at bar, it is inconceivable how plaintiff was prejudiced since defense counsel‘s statement inured to her benefit.1
Affirmed.
GARRARD, P. J., concurs.
STATON, J., concurs in result with opinion.
STATON, Judge, concurring in result.
I concur in result, since I consider it error for either the plаintiff or the defendant to mention insurance coverage. Here, there was no objection made to the statement made by dеfense counsel, and the injection of insurance, from the standpoint of damages, appears to be harmless error. Nevеrtheless, in the proper case where damages are considerable, the injection of insurance coverage by the defense counsel could invite speculation on the part of the jury as to the defendant‘s coverage. For example, a defendant of limited means, heavy financial obligations and a large family to support, may in a particular factual setting invоke sympathies of a jury. Speculation could occur during the jury‘s deliberations as to the amount of insurance coverage in an attempt to limit the amount of damages to the insurance coverage of the defendant‘s policy. This is probably one reason for the Michigan rule in Felice v. Weinman (1964), 372 Mich. 278, 126 N.W.2d 107. In the proper factual setting and with a proper objection by the plaintiff‘s counsel, the injection of insurance coverage could amount to reversible error; therefore, I concur in result.