Pennsylvania Ice & Coal Co. v. Elischer
| Decision Date | 12 June 1939 |
| Docket Number | 15924. |
| Citation | 21 N.E.2d 436,106 Ind.App. 613 |
| Court | Indiana Appellate Court |
| Parties | PENNSYLVANIA ICE & COAL CO. v. ELISCHER. |
Davis & Eichhorn and Louis George, both of Gary, E. Miles Norton, of Crown Point, and Robert Thompson, of Winamac, for appellant.
M J. Fagan, of Gary, for appellee.
This is an appeal from a judgment awarding appellee damages for personal injuries alleged to have been sustained by her as the result of a collision between the automobile in which she was riding and appellant's truck at the intersection of 21st Avenue and Harrison Street in the city of Gary, Indiana.
The issues consisted of a complaint in one paragraph answered by a general denial. Appellant unsuccessfully moved to stay proceedings on account of a similar action having been previously instituted and dismissed without the payment of costs, but error, if any, in the overruling of said motion is expressly waived by appellant in its brief.
There was a trial by jury, resulting in a verdict for appellee. The jury returned with the general verdict answers to certain interrogatories. After overruling appellant's motion for judgment on the answers to the interrogatories, the court rendered judgment on the general verdict. Appellant then filed its motion for a new trial upon the grounds that appellee's counsel had been guilty of misconduct in interrogating the jury on their voir dire, in examining certain witnesses, and in arguing the case before the jury that the verdict is not sustained by sufficient evidence that the verdict is contrary to law; that the court erred in the rejection of certain evidence; and that the court erred in the giving and refusal of each of certain instructions. This motion was overruled and excepted to, and this appeal followed. The errors assigned are the overruling of the motion for a new trial and the overruling of the motion for judgment on the answers to the interrogatories.
Appellant in its brief and its counsel in oral argument earnestly insist that the judgment of the trial court should be reversed because of alleged misconduct of appellee's counsel in impanelling the jury, in the examination of witnesses during the progress of the trial, and in arguing the case to the jury. Several remarks and statements made by counsel, which appellant claims constitute misconduct and were highly prejudicial to its rights, have been pointed out.
We will consider appellant's contentions in the order of their presentation. The first to which appellant refers is alleged misconduct of counsel in interrogating the prospective jurors by asking on their voir dire if they owned any stock in a certain insurance company. Appellant states that an objection was made to this question when it was first asked, that the objection was overruled, and that appellee was permitted to continue. The record discloses that there was no objection made when the question was asked of the first prospective juror. The objection does not appear to have been made until after the question had been propounded to the second prospective juror, the question answered in the negative, and part of another question stated. Such question as here complained of, however, was proper under the circumstances. Beyer v. Safron, 1926, 84 Ind.App 512, 151 N.E. 620.
Appellant has directed our attention to several remarks made by counsel for appellee during the examination of witnesses and contends that these remarks amount to misconduct. We have carefully examined the record in each instance and find that appellant, upon objecting, was either given the relief asked for or the jury was admonished by the court to disregard the remark complained of.
Appellant complains of the demonstration of a physician, while testifying as a witness for appellee, showing the limited movement of appellee's arm. Demonstrations of this character are generally proper but largely within the discretion of the trial court, and in the absence of a showing that the court abused its discretion, the error, if any, is not available.
It is also contended by appellant that appellee's counsel, during his argument to the jury, made several prejudicial statements, allusions, and epithets amounting to misconduct, which necessarily affected the verdict of the jury. Upon examination of the record we find that upon objection by opposing counsel the court immediately admonished counsel for appellee and frequently told the jury to disregard the statements of counsel which were outside the issues and instructed counsel to confine his remarks to the evidence. We think that the action of the trial court in reprimanding counsel and in instructing the jury was sufficient to counteract the harmful effect, if any, for it must be presumed that the offending attorney obeyed the admonition of the court, the contrary not appearing, and that the jurors were men of average common sense and ordinary intelligence and that they understood and obeyed the court's direction. Louisville, New Albany & Chicago Ry. Co. v. Norman, 1897, 17 Ind.App. 355, 46 N.E. 702; Roush v. Roush, 1900, 154 Ind. 562, 55 N.E. 1017; New York Cent. R. R. Co. v. De Leury, 1934, 100 Ind.App. 140, 192 N.E. 125. The record further discloses that the trial court, upon its own motion, instructed the jury that they must disregard all insinuating remarks, epithets, and voluntary statements of counsel, if any, not based upon the evidence in the case; that they should consider only the evidence which was permitted to be heard and allowed by the court; and that they should apply the law to the evidence, as given by the court in the instructions. Whether the remarks made by counsel were improper we need not decide, for appellant was given the relief it asked for, and the error, if any, was obviated by the action of the trial court in admonishing counsel and instructing the jury. The rule of procedure and the steps necessary to be taken by a litigant who is aggrieved by the misconduct of opposing counsel were properly stated in the case of Ramseyer, Ex'r, v. Dennis, 1918, 187 Ind. 420, 116 N.E. 417, 119 N.E. 716.
It is further contended by appellant that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. It is alleged in the complaint that at the time of the accident appellant's truck was being driven by one Lelander Hughes in the business of the appellant company, as appellant's agent, servant and employee. This is a material allegation, the proof...
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