Campbell v. City of Mishawaka

• Decision Date: 24 June 1981
• Docket Number: No. 3-1179A321,3-1179A321
• Parties: Antoinette C. CAMPBELL, Plaintiff-Appellant, v. CITY OF MISHAWAKA, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 334

422 N.E.2d 334

Antoinette C. CAMPBELL, Plaintiff-Appellant, v. CITY OF MISHAWAKA, Defendant-Appellee.

No. 3-1179A321.

Court of Appeals of Indiana, Third District.

June 24, 1981.

Rehearing Denied August 6, 1981.

Transfer Denied Oct. 28, 1981.

Daniel J. Harrigan, Bayliff, Harrigan, Cord & Maugans, P. C., Kokomo, Edward A. Zych, Matthews-Petsche & Associates, South Bend, for plaintiff-appellant.

R. Kent Rowe, Paul M. Oleniczak, Rowe & Laderer, South Bend, for defendant-appellee.

HOFFMAN, Presiding Judge.

On May 10, 1974 Fourth Street in Mishawaka, Indiana was a one-way street carrying traffic in an easterly direction. A stop sign was posted in the northwest corner of the intersection of Fourth Street and Byrkit Street, indicating that the traffic on Fourth Street was to stop. No stop sign was posted on the southwest corner of the intersection. No stop signs were posted on Byrkit Street requiring the traffic on that street to stop.

On May 10, 1974 Antoinette C. Campbell (Campbell) was driving in the left lane of Fourth Street and was looking directly in front of her in her own lane. She did not look to see if anything was on the northwest corner when she approached the intersection with Byrkit Street. When Campbell was approximately two houses away from the intersection, she noticed a truck traveling on Byrkit Street about a half block away from the intersection. Campbell did not notice any signs indicating that the truck was to stop at the intersection, but since she did not see a stop sign in front of her, she assumed the truck would stop. Campbell proceeded into the intersection without stopping and was hit broadside by the truck and shoved into a parking lot.

Campbell filed a complaint for damages against the City of Mishawaka (City) in the Superior Court of St. Joseph County alleging negligence on the part of the City. On May 24, 1979 a jury returned its verdict against Campbell and in favor of the City of Mishawaka.

Campbell now appeals from a negative judgment raising the following issues: ¹

(1) whether the trial court erred in admitting into evidence, City's Exhibit "H," which was a letter from the defendant's attorney to a defense medical expert with a copy to the City's expert witness, a psychiatrist;

(2) whether the trial court erred in refusing to allow Campbell to introduce her entire deposition into evidence after the City had offered parts of the deposition into evidence;

(3) whether the trial court erred in allowing the jury to have a copy of the written jury instructions in the jury room;

(4) whether the trial court erred in the manner it instructed the jury on considering the instructions as a whole;

(5) whether the trial court erred in giving City's tendered Instructions Nos. 2, 3 and 10 as modified; and

(6) whether the trial court erred in refusing Campbell's tendered Instructions Nos. 3, 4, 6, 7, 8 and 9.

A party appealing from a negative judgment must establish that the evidence is without conflict and leads to but one conclusion, that which was not reached by the court below. Upon review of a negative judgment, the Court of Appeals will not reweigh the evidence nor resolve issues of credibility, but will view the evidence in the record most favorable to the judgment. Massey v. St. Joseph Bank and Trust Co. (1980), Ind.App., 411 N.E.2d 751.

The first issue raised by Campbell is whether or not the trial court erred in admitting into evidence City's Exhibit "H," which was a letter from the City's attorney to Dr. Arens, a defense medical expert, with a copy to the psychiatrist who was City's expert witness. Campbell contends that admission of the letter violated the hearsay rule and gave the jury a bad impression of her character.

In order to violate the hearsay rule of evidence, the letter must have been offered in court for the truth of the matter asserted therein. Blue v. Brooks (1973), 261 Ind. 338, 303 N.E.2d 269. City argues the letter was not introduced for such a purpose.

A review of the content of the letter, however, reveals that this Court need not decide this question. The subject matter of the letter discusses Campbell's injuries. Since the severity of Campbell's injuries is evidence which goes to the issue of damages and the jury decided in favor of the City, then it is clear that the jury never decided the question of damages. Thus, this Court cannot review this matter on appeal.

The next issue raised by Campbell was whether the trial court erred in refusing to allow her to introduce her entire deposition into evidence after the City had offered parts of the deposition into evidence. The trial court did allow Campbell to introduce parts of her deposition which were relevant to the parts introduced by the City.

No error resulted from this procedure. It has been decided in Indiana that no error occurs when a trial court permits a party to present selected portions of depositions to the jury and excludes parts of the deposition. Manning v. Allgood (1980), Ind.App., 412 N.E.2d 811; Wynder v. Lonergan (1972), 153 Ind.App. 92, 286 N.E.2d 413.

Campbell next contends that the trial court committed reversible error in allowing the jury to have a copy of the written jury instructions in the jury room.

Before honoring the jury's request for the jury instructions in printed form, the jury had heard the instructions read in open court twice. The jury foreman advised the judge that the jury did not wish to have the instructions read a third time as this would not be helpful, and it desired to have the instructions in printed form for use in the jury room.

Both this Court and the Indiana Supreme Court have decided that generally, jury instructions are not to be sent to the jury room, but a trial court's action in doing so may be harmless error if the instructions are first read in open court in the presence of the parties and their attorneys. Jameison v. State (1978), 268 Ind. 599, 377 N.E.2d 404; Snelling v. State (1975), 167 Ind.App. 70, 337 N.E.2d 829. In Snelling v. State, supra, a survey of Indiana law revealed that the procedure of instructing juries only by reading instructions in open court was actually a procedure established primarily by custom. Earlier courts believed that oral instructions would put jurors on a more equal basis. However, in light of today's educational standards, it may well be that giving the jury written copies of instructions which have been read in open court may promote equality more than relying on equally retentive memories. Snelling, supra, 337 N.E.2d at 836.

While it has been noted in previous cases that a legislative enactment or a court rule would be necessary to change the law if it were to be required of trial courts that they send written copies of the instructions to the jury, "(t)his is not to say that it is erroneous or contrary to law for a trial court in the exercise of its discretion to follow that practice." Snelling, supra, 337 N.E.2d at 836.

The crucial requirement seems to be that the instructions first be read in open court in the presence of the parties and their attorneys. Since the trial court did so here, it was not error to send written copies of the instructions to the jury.

Another issue raised by Campbell was whether the trial court erred in the manner in which it instructed the jury on considering the instructions as a whole. Both times the instructions were read in open court, no such instruction was given.

Not until it was decided to send written instructions into the jury room did Campbell request an instruction be given on considering the instructions as a whole. The trial judge instructed the jury orally to consider the instructions as a whole when he entered the jury room to give it the written instructions and he included such an instruction with the other written instructions.

While the trial court technically committed an error by not reading this instruction in open court with the parties and their counsel present, the error in this case appears to be harmless. This was not an instruction on Campbell's theory of the case. Rather, it was a general instruction on law about which there is no dispute. The instruction was given to the jury both orally and in writing. When an error does not affect substantial rights of the complaining party, such error will be considered harmless and not be grounds for reversal. Cornett v. Cornett (1980), Ind.App., 412 N.E.2d 1232.

It is well established in Indiana law that the appellant has the burden of showing prejudice from the error. Com'r, Ind. State Highway Dept. v. Collins (1980), Ind.App., 413 N.E.2d 982. Campbell has not met this burden. As to instructions, no reversible error exists where the jury has not been misled and an examination of the record shows the verdict under proper instructions would not have been different. Lewis v. Davis (1980), Ind.App., 410 N.E.2d 1363; Pardue v. Seven-Up Bottling Co. of Indiana (1980), Ind.App., 407 N.E.2d 1154.

Campbell contends that prejudice resulted because the jury reached a verdict within 20 minutes from the time it received the written instructions, a task she alleges is physically impossible if all the instructions were read by it. Thus it must have concentrated on one particular instruction and this limited consideration was prejudicial to her.

The only evidence in the record as to the amount of time which elapsed from the time the jury received the written instructions until it returned its verdict is conflicting. Campbell's attorney stated in an affidavit that 20 minutes elapsed, while the trial judge stated in an affidavit that 45-55 minutes elapsed. This Court will not weigh evidence. Nowhere in the record is there any evidence as to the length of time it would take the jury to read all of the instructions. Campbell has not met her burden of establishing prejudice and thus, the error committed was harmless.

The remaining errors alleged by Campbell all pertain to individual jury...