*1 Yates v. Grider. petition rehearing
[No. 369A50. Filed November 1969. No for filed.] Martin, Kokomo, appellant. James R. for Roger Miller, Frankfort, L. Robison, ap- & Robison pellee. personal injuries J. This is an action for sus-
Sharp, by resulting negli- tained Plaintiff-Appellant alleged gence of the Defendant-Appellee, Wilbur Grider. Trial was by jury resulting had Appellee. a verdict for The assignment overruling Appellant’s error is Motion for New Trial which stated: jury contrary
“1. verdict of to law. occurring 2. of law Error the trial the court sustaining objection erred in defendant’s and excluded following plaintiff by evidence offered on cross-examina- Ayres, expert B. tion of Loren witness who was called to testify herein: defendant, which said evidence is set forth Q. you Ayres, will or can tell the who hired investigation April 6, to make this 1967? Yes A. sir.
Q. And who was that?
A. J. Mr. E. Rhoda.
Q. you spell And name?
A. R-h-o-d-a. *2 Q. he is right, jury he the who All will tell and
working for or else? himself someone because, object in the first Mr. Robison: to this We place place, in the second counsel is and knows who Mr. Rhoda question improper witness asks this this an that he argument the out of and I the would like make the rest presence jury, may. of the if I excused) (The jury The same is noted. of counsel please, Mr. the conduct Robison: If Court the talking beginning plaintiff to inception the from inject which jury this case into has tried jury they asked they proper. is not On voir dire know they to this be a witness said would about a Mr. Innis who they testimony; full knew they their When concluded trial. they yet Innis, knew going to call Mr. well that weren’t jury one Mr. Innis was because that knew who him and jury purchased from some insurance members had that the he asked that time that sold insurance. We knew submission of this be removed. We were at this time this witness was and Now, overruled. him to come asked asked who Now was our law firm —our office. investigate asking originally him to come and asked gentleman’s thing. They Mr. name. this Rhoda. who asked They Rhoda is as well knew who Mr. adjuster He for an insurance com- Mr. is. Rhoda Now, again deliberately pany. imagine Mr. Martin and once inject malice, into this trial some- intends Martin, doing. thing that no business he knows he has ungentlemanly, through proceedings, has been the entire topper think that de- and now this is the and he unfair reprimand It’s his conduct. a from this Court for serves unbecoming profession. Honor, your not, in the course of have anything improper un- proceedings, to do tried these ethical phrase- ungentiemanlike all of that leave —I’ll Ayres that entitled to know ology off, think we are but I testifying me, testifying made here investigation —excuse —he —not Country and on behalf of the Town for and right show Company. Now I think we have Insurance Mutual right know that information prejudice bias or or interest that have here and he just up again picked morning Supreme this a recent authority, decision —I don’t have it the full case but re- ported relating newspapers and I am not Court that correct, just Supreme are often but another Court decision morning yes- this terday Supreme handed down in our own person stated that went a brake out to make test for an insurance testified and on cross- examination he was asked who he made this for question Court stated he couldn’t ask and it was found to be reversible and that’s error what the Court did opinion. that was the basis the Court’s This is a just yesterday by decision handed Supreme down Court. got newspaper I’ve here with still it me—I’ve but skinning but, I’m not don’t misunderstand saying newspaper always right articles are is absolute citation. read in—our own Court —Indiana Court —no others. But I think the jury have in his is entitled to know as to bias that this witness testimony. The bias and which is shown the fact employed by is in fact defendant’s counsel. This *3 does show bias. my question Mr. Martin: Well was made reference to his investigation testimony his here. —not Judge: Well, but is intended to show bias favor whom? Mr. Martin: Well it in favor would be of the defendant if I understand the Court. Judge: company Then the insurance is not the defendant. they No, Mr. Martin: are not the defendant here —no. you against Then the bias which seek is this case. exactly.
Mr. Robison: That’s it Is this not true? No, thing altogether. I Mr. Martin: don’t that’s true Judge: testimony resting the bias favor for of whom. This you both elicit will be or enhanced in- already. creased than it is more statement was in the beginning employed by that he the defendant. correctly. To I recall Martin: —if testimony upon investigation. His the basis of
Mr. Martin: Yes. investigation
Judge: party made for a Yet, an an not a to this law suit. necessarily think, preju- or a bias Mr. Martin: dice of a witness has to be for don’t against party, I either think we can show— (inaudible) unless with cross-examination around parties. it is relevant and material agree on that.
Mr. Martin: Well don’t with the give you citations on it. can be allowed I think we should Your investiga- his employed in fact in him who ask this witness tion to show contractual feelings or interest or motives or part in this to his relationship reference any- given him compensates and who only testimony. thing regarding am not Now value his investigation also who is com- making but reference testimony. pensating him for already told us that. Mr. Robison: He’s we are entitled But I think Mr. Martin: didn’t hear that. anything again, attempted, to do I haven’t to ask this and improper this Court. before respond. Counsel merely obliged show us if would Mr. Robison: would before and I authority never been done where it’s anticipate some- a—we even think it’s such thing way didn’t school, beginning law primary inject the examination of— this is purchaser of in- you certain do a stockholder —are They They further this time. went surance. That’s basic. asked they mutual a stockholder in if were they they knew proceeded knew Mr. Innis to ask if they man and now are people he was an insurance knew by trying they get felony in here that compounding the well as Mr. Rhoda is don’t know who I do who Mr. trying is, Rhoda testify- testimony the reason the witness for *4 project company. ing this All want to an insurance to company is an insurance involved. there thing they hope do. to That’s something? say Honor, could I Your Mr. Martin: Judge: Yes. Mr. Martin: I Would it aid the Court if went down Indianapolis got copy opinion? a of this I would be
glad to. question The nature of an yesterday upon rendered a fact a which we situation about nothing asking great Court, know deal of the absolutely Martin. Now if sure that it’s a case. cow way. Well, put it this It’s a Mr. Martin: let me cow case morning paper. I Now will from the article be the admit, your Honor, first will be the first in the and don’t misunderstand appears to admit what a be cow case newspaper hog. often turns out be complete It be would reversal of field in the State of Indiana. say, willing
Mr. Martin: would drive to get Indianapolis now to it. going going I am to overrule —or am to sustain objection going stand on what know the laws to be. Now when and if the Indiana and the United States say party that the real interest becomes relevant but until it it is irrelevant. Stengel Casey Skid marks curve. pitcher instructs his throw a curve. witness is bias because doesn’t like Casey Stengel. against Bias? —Bias the curve and he has money even bet and lost and on the Yankees or the men. Bias but it’s irrelevant unless it’s the real interest. Now laws have not made the insurance company party’s the real present interest and all of us public policy that the law that pocket parties paid be but exemplified been danger making there is more from big the the real interest putting than there is equal plains. Ferguson Was Dr. entirely by your plaintiff’s client or company? you asking Are me? Mr. Martin:
Judge: Yes. Martin: Well a bill from him. (Inaudible) No, evading I’m not
Mr. Martin: insurance it. plaintiff’s There’s no involved here. ? about Blue Cross What You mean Martin: No. did he have Blue ? Cross I believe there mentioned in plaintiff’s here of *5 572 depositions. There’s a of these in one
insurance subrogation isn’t there? from Blue Cross claim thought you mean an -well be. Martin: There Mr. insurance carrier. automobile speaking (inaudible). I’m Martin: see. Mr. on open field see, You the entire
plaintiff’s side. goes if he I feel that like to. would Mr. Robison: We go into protect have this we further with ourselves — expense out-of-pocket tell what kind Cross and Blue talking man about.
this is Honor, you are go further, your if Martin: I won’t Mr. telling me not to. problem, This the reason for see. this rule, today. up to been for the Security Disability insurance —Social Mr. Robison: feel —and going really be into that because if can—we should way they have treated us. for the problem. This is the reason rule is the This plaintiff it favors the one time it and all know and we going If the defendant. we’re it favors the other time break way. to break it all the This is have it we’ll about going what United wait see States Su- why I’m you the case to refer because preme does deep up, you. pocket take it on don’t I assume Probably so. Martin: Mr. rule, ? me would And wouldn’t want sincerely right. I’m feel I’m think
Mr. Martin: Well right trying— point and I am not expect Robison, plaintiff’s the be in that di- when Lawyers Association, may trial, Trial us, parties too, (inaudible) the before but it still rection plaintiffs defendants. first, my prove though, I make offer to Martin: Could gets here? before the requests prove. to make offer to leave Judge: Plaintiff objection of the defendant. has now sustained the (in- prove make his offer to plaintiff Counsel audible) . Martin, attorney plain- for the is James This
573 tiff, speaking into prove the record and our offer if permitted time the witness were previous question answer the toas who hired him to investi- gate April 6, 1967, this accident on his answer would Country Company.” Town Mutual Insurance In Pickett Ind. E. 2d 105 N. Supreme Court,
our when situation, confronted with a similar stated: *6 long jurisdictions “It has been the in all law of which we may properly that a aware witness be cross-examined respect litigation ques to his interest tion. He be cross-examined with reference to motives, feelings, friendly unfriendly his his to parties involved,
wards the ment employ or other witnesses parties party, either of the or some third and the relationship contractual with reference to his interest litigation the have influenced him. 30 might financial considerations that I.L.E., Witnesses 21.” 237 N. E. § 2d 107 proof words, liability “In other insurance in and of admissible, but principle may itself is not such a not be expanded to the extent serves as a means of excluding competent otherwise evidence which is relevant the issues involved in the trial. We do think that a trial arbitrarily not wise court exclude other competent merely ground relevant evidence on the that it reveal an insurance carrier is involved. case, previously stated, In this if a sees fit to behalf, present a witness on opposing party has a right his interests cross-examine that witness with reference all of including compensating giving anything him or being of value which resulted in his or participating actively a witness litigation.” in the E. 2d 108 237 N. Appellant contends that this case is squarely within the just quoted from Pickett supra, statement and we v. agree. published opinion It is unfortunate that the in Pickett judge v. Kolb not trial available to the when he made his Notwithstanding ruling. this, Pickett v. Kolb is a court. on this as it is precedent on trial court in this case ruling court reversible the trial Pickett Kolb the v. As in re is reversed Therefore, be and this case should error. grant Appellant’s Motion manded with instructions New Trial. Appellee. Costs remanded.
Reversed C.J., concurs; Pfaff, concurs with J., White, J., Hoffman, concurs. Opinion Concurring majority opinion has, without doubt Pfaff, C.J. The employed rationale correctly applied my part, Kolb Pickett v. in the case of decision course, are, E. 2d 105. We 250 Ind. 237 N. disregard liberty or disavow that which However, subject. believe law on this has stated to be the ruling suggest Supreme Court that while it essential right allowing opposing cross-examine bias is seem- as to elicit witness so “interested” my opinion, vir- desirable, application of this rule ingly upholds Supreme Court decision tually impossible. While *7 disallowing validity prior of evi- rule admission of the insurance, liability prove the existence of tends to dence which permits of it admission evidence which instance at the same including litigation, of witness to the interest refers compensated. many In in- by retained whom admitting of evidence of this nature the direct result stances litigation, of the witness in the elicit the interest order place before the evidence that there exists some will be to liability insurance. I refer to those situations of form liability proof insurance is allowable establish of where defense, as in action or a these instances a cause of either My problem. as to the wisdom of Su- doubts there no supra, Kolb, Pickett preme precedent v. Court’s which insurance is not essential concern those cases in situations, party’s claim or In those would seem defense. impossible of determine whether the cross-examination motive, feeling, interest, purpose showing witness for the of etc., toward the of elicitation limited to further, point facts go those or whether it is intended to the injecting Further, jurors, upon the issue of insurance. hearing interest, feeling even can rea- evidence of motive or sonably expected presume involved. insurance is Thus, although objective there not be an statement of the fact insured, that a which evidence admitted shows interest, feelings may motive or have the ultimate same result. by precedent,
As bound concur the law as cor- rectly applied However, majorty opinion. I reiterate that while evidence in Pickett v. declared admissible supra, desirable, practical effect of its admission my opinion, likely often to constitute an unwarranted and prejudicial injection of the element insurance. prudent reasoning it would seem
To more to follow the Appellate Court decision in (1968), Pickett v. Kolb 856, 449, disallowed, 231 N. E. 2d theory Ind. on the Alvey 560, 633, Miller v. 246 Ind. 207 N. 2dE. admis tending insurance, sion of abrogate all evidence show or to altogether evidentiary pertaining restrictions to insur coverage damage growing ance defendant action out of an automobile accident.
Hoffman, J., concurs.
Reported in
Note. — Fender, Admx. Herald-Times, Inc., et al. petition 569A78. Filed rehearing
[No. November 1969. No filed.]