Barber v. Cox Communication, Inc.

• Decision Date: 28 February 1994
• Docket Number: No. 25A03-9210-CV-318,25A03-9210-CV-318
• Citation: 629 N.E.2d 1253
• Parties: Gerald M. BARBER, Appellant-Plaintiff, v. COX COMMUNICATION, INC., a/k/a Cox Cable of Michigan City; Cardinal Communications, Inc.; N.G. Gilbert Corporation; and Indiana Bell Telephone Company, Incorporated, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 1253

629 N.E.2d 1253

Gerald M. BARBER, Appellant-Plaintiff, v. COX COMMUNICATION, INC., a/k/a Cox Cable of Michigan City Cardinal Communications, Inc.; N.G. Gilbert Corporation; and Indiana Bell Telephone Company, Incorporated Appellees-Defendants.

No. 25A03-9210-CV-318.

Court of Appeals of Indiana Third District.

Feb. 28, 1994.

Transfer Denied June 24, 1994.

Thomas J. Young, William N. Riley, Young & Riley, Indianapolis, Richard A. Brown, Brown & Brown, Rochester, for appellant-plaintiff.

Thomas J. Trauring, Robert M. Squier, Jr., Fell, McGarvey, Trauring & Wilson, Kokomo, for appellee Cox Communication, Inc.

John C. Muehlhausen, Miller, Tolbert, Muehlhausen, Muehlhausen & Groff, P.C., Logansport, for appellee Cardinal Communications, Inc.

Robert A. Smith, T. Neil Bemenderfer, Mark R. Smith, Bishop, Smith, Bishop & Bemenderfer, Indianapolis, for appellee N.G. Gilbert Corp.

Joset Wright-Lloyd, Legal Dept., Indiana Bell Telephone Co., Inc., Lee B. McTurnan, Wayne C. Turner, Steven M. Badger, McTurnan & Turner, Indianapolis, for appellee Indiana Bell Telephone Co., Inc.

HOFFMAN, Judge.

Appellant-plaintiff Gerald M. Barber appeals from a judgment in favor of appellees-defendants Cox Communication, Inc. a/k/a Cox Cable of Michigan City ("Cox"); Cardinal Communications, Inc. ("Cardinal") and N.G. Gilbert Corporation ("Gilbert") and against appellee-defendant Indiana Bell Telephone Company, Incorporated ("Indiana Bell") in the amount of $200,000.00 plus interest in a complex personal injury action.

Barber raises four restated issues for review:

(1) whether the trial court erred in admitting into evidence a loan receipt agreement between Barber and the City of Peru and Peru Utilities (collectively referred to as "Peru");

(2) whether the trial court erred in allowing Peru to be considered a nonparty;

(3) whether allowing the consideration of Peru as a nonparty resulted in a "double set-off" for Indiana Bell; and

(4) whether the trial court erred in granting Cox and Cardinal's motions for summary judgment.

The facts disclose that in 1981 Peru hired Gilbert to rebuild its electrical transmission lines. In December of 1981, Gilbert placed a new utility pole next to an old utility pole located in the alley behind the Burger Barn restaurant in Peru, Indiana. After removing Peru's lines and equipment from the old pole, Gilbert sawed off the top of the pole. Gilbert left wires belonging to Indiana Bell and Cox attached to the old pole.

Sometime in 1982, Indiana Bell transferred its telephone wires from the old to the new utility pole. The Indiana Bell employee performing the work noticed that the old pole had been cut off at ground level and was supported only by the wires attached to it. He did not, however, report the condition of the old pole to anyone.

In 1985, Cox's cable television franchise in the Peru area was acquired by Cardinal. Both Cox and Cardinal had worked on the old pole before it fell in 1987. Contemplating that the cable television system would be upgraded, Cardinal, with Peru's knowledge, decided to suspend the transfer of its lines from Peru's old utility poles to the new poles. In 1986, a new cable television system was installed by Cardinal who hired JDC, Inc., an independent contractor, to do much of the work. Barber was employed by JDC as a lineman. On February 17, 1987, Barber's crew began removing the cable system from the old utility pole in the alley behind the Burger Barn. During the interim, from the time the old pole had been cut off at ground level, it had sunk down into the ground approximately five to six inches concealing its dangerous condition. Barber climbed the old utility pole. After cutting the wire that was supporting the pole, the pole fell on top of Barber who was attached to it by his safety belt. Barber sustained severe injuries.

Barber filed a personal injury action naming as defendants Peru, Gilbert, Indiana Bell, Cardinal, and Cox. Cardinal and Cox filed summary judgment motions which the trial court granted on January 24, 1989. On July 31, 1989, Barber entered into a loan receipt agreement with Peru. Peru was dismissed with prejudice on November 17, 1989, without objection by the remaining defendants, Gilbert and Indiana Bell. Gilbert and Indiana Bell later filed motions asking the court leave to file amended answers to include the affirmative defense of nonparty. The court granted the defendants' requests and the court named Peru as a nonparty. The court also determined that the loan receipt agreement could be introduced into evidence. Subsequently, Barber received a $1,000,000.00 jury verdict. Sixty percent (60%) of the fault was attributable to the nonparty Peru, twenty percent (20%) of the fault was attributed to Indiana Bell, and twenty percent (20%) of the fault was attributed to Barber. Pursuant to the jury verdict, the court entered judgment in favor of Barber and against Indiana Bell in the amount of $200,000.00. The court further determined that Barber take nothing by his complaint against Gilbert. Barber now appeals.

Barber contends that the trial court erred when it admitted into evidence the loan receipt agreement, entered into between himself and Peru. Loan receipt agreements are a means by which a defendant who is potentially liable to a claimant advances funds in the form of a noninterest loan in return for a promise not to pursue the claim or not to enforce the judgment rendered against the lender/defendant. Fullenkamp v. Newcomer (1987), Ind.App., 508 N.E.2d 37, 39, trans. denied. In exchange, the plaintiff immediately receives a guaranteed sum rather than awaits the uncertain outcome of a trial. Id.

Evidence regarding a loan receipt agreement is admissible to impeach the lender's credibility. Manns v. State, Dept. of Highways (1989), Ind., 541 N.E.2d 929, 934. As explained by the Indiana Supreme Court in Manns:

"In contrast to the inadmissibility of covenants not to sue and covenants not to execute, evidence regarding loan receipt agreements are properly admissible on the issue of the lender's credibility.

'[W]hen a loan receipt agreement is executed between a plaintiff and a defendant, and that defendant, or one of his agents or representatives, appears at trial and testifies for the plaintiff, the loan receipt agreement should be admissible to impeach his testimony. That such a witness would have a pecuniary bias is obvious, for if he testifies persuasively in plaintiff's favor, he will be more likely to recover his loan to the plaintiff.' "

Id. at 934 (quoting State v. Thompson (1979), 179 Ind.App. 227, 245, 385 N.E.2d 198, 210, trans. denied ).

Barber contends that pursuant to Manns, admission of a loan receipt into evidence for impeachment purposes is permissible only when the plaintiff calls the settling party, or its agents or representatives, in the plaintiff's case-in-chief. Contrary to Barber's assertion, Manns should not be so strictly construed. Although Barber did not call any of Peru's employees during his case-in-chief, he elicited favorable testimony during cross-examination.

During Barber's cross-examination, Peru employees Dwight Langer, Ronald See, Paul Hines, and David Harleford denied that Peru had any responsibility for cutting the old utility pole. Further, See testified that Gilbert would have had a reason to cut the old pole in order to gain clearance for the installation of a transformer on the new utility pole. Barber also elicited favorable testimony from Peru regarding the issue of whether he exercised due care in climbing the old pole. During Gilbert and Indiana Bell's examinations of Peru employees, evidence was presented as to the safety precautions that should be taken before climbing utility poles. Most notably, that if a lineman saw a stump adjacent to an old pole, he should probe down into the ground around the pole to determine its depth and whether the pole was safe to climb. On cross-examination by Barber, Peru employees stated that given the facts in the present case, they would not have necessarily undertaken all the tests they had previously suggested, including probing the base of the pole to check its depth.

Peru's pecuniary interest is obvious, for if it testified persuasively in Barber's favor, the more likely it was to recover its loan. See Manns, 541 N.E.2d at 934; Thompson, 179 Ind.App. at 245, 385 N.E.2d at 210. Barber's cross-examination placed in issue the credibility of the Peru employees and thereby opened the door to the use of the loan receipt agreement for impeachment purposes. Cf. Jones v. State (1986), Ind., 500 N.E.2d 1166, 1169 (party's own witness need not be declared hostile before commencing impeachment). The loan receipt agreement was admissible for impeachment purposes.

Moreover, during Indiana Bell's cross-examination of Langer, he testified as to the existence of the loan receipt agreement, without objection by Barber. On cross-examination, Langer stated that the agreement was a form of "settlement" with Barber and that there was a possibility that Peru's insurance company would be paid back. Having allowed such testimony without objection, Barber cannot now complain that the trial court erred in admitting the loan receipt agreement into evidence. Cf. Wilson v. Kauffman (1990), Ind.App., 563 N.E.2d 610, 616, trans. denied, cert. denied --- U.S. ----, 112 S.Ct. 439, 116 L.Ed.2d 458 (admission of medical report harmless after physician's testimony); Jordan v. Talaga (1989), Ind.App., 532 N.E.2d 1174, 1191, trans. denied (admission of home movie of flood harmless after oral testimony concerning the same event).

Barber suggests that he was prejudiced by the admission of the loan receipt agreement because the agreement contained the terms and the amount of the loan. Generally, the amount of the loan should be deleted from the agreement before it is admitted into evidence. Additionally, if under the facts and circumstances of the case any statements in...