Brindle v. Harter, 20082

• Citation: 211 N.E.2d 513,138 Ind.App. 692
• Decision Date: 16 November 1965
• Docket Number: No. 1,No. 20082,20082,1
• Parties: Edwin D. BRINDLE, Appellant, v. Robert Lee HARTER, Appellee
• Court: Court of Appeals of Indiana

Page 513

211 N.E.2d 513

138 Ind.App. 692

Edwin D. BRINDLE, Appellant, v. Robert Lee HARTER, Appellee.

No. 20082.

Appellate Court of Indiana, Division No. 1.

Nov. 16, 1965.

Rehearing Denied Jan. 6, 1966.

[138 INDAPP 693]

Chester E. Bowman, Jerrald A. Crowell, Bowman & Crowell, Ft. Wayne, for appellant.

[138 INDAPP 694] William F. McNagny, J. A. Bruggeman, Barrett, Barrett & McNagny, Ft. Wayne, for appellee.

PRIME, Presiding Justice.

Appellant instituted this action below to recover damages for personal injuries allegedly sustained as a result of a collision between an automobile driven by appellant, Edwin D. Brindle, and one operated by appellee, Robert Lee Harter. Trial was had by jury which returned a verdict for the appellee. Appellant then filed a motion for a new trial which was subsequently overruled.

This appeal followed in which the assignment of error was the overruling of said motion. The specifications of the motion were numerous, but we find it necessary to rule only upon appellant's contention that the court erred in overruling the objections of the appellant following a series of questions propounded by the appellee during the cross-examination of a witness called on behalf of the appellant.

The evidence discloses that appellant's automobile, while stopped at an intersection for a traffic light, was struck in the rear by appellee's automobile, which apparently skidded and was unable to come to a safe stop on the rain slick road surface.

During the course of appellant's direct examination of one Clifford Knowles, a supervisor at appellant's place of employment, the appellant's attorney, after asking the witness various questions pertaining to appellant's duties, hours worked and absenteeism record, put forth the following questions:

'Q--Are you acquainted with the employee-employer contract, the wage contract out there?

'A--Yes, sir.

'Q--Are you acquainted with the retirement plan the company has of (for) the employees?

'A--Yes.

'Q--What is the retirement age of the employees?

'A--65.

'Q--And is that based upon age alone?

[138 INDAPP 695] 'A--No. It is based upon years of service and age.

'Q--Now, can an employee, though, retire before he is 65?

'A--Yes. I believe there is a stipulation in the contract should he become permanently disabled that he will be retired at the reduced rate.

The appellee followed with cross-examination of the above witness, and, after deleting several preliminary questions, we have set out below the pertinent questions to which we feel sufficient objection was made:

'Q--In other words, there is no reason financially why a person who is injured while working at Perfection, I don't care where he is injured there is no reason why he can't go to a hospital if he wants to and have the bill largely picked up by Perfection, is there?

Mr. Crowell: Your honor, we are going to object to this line of questioning at this time. There was nothing gone into like this on direct examination.

The Court: Overruled and exception. You undertook to show when they could retire, what age, and so on. I think you have opened the whole contract up.

'A--I would say there is no question about it being true.

'Q--Furthermore, while a person is off work for injuries he may have received by falling off a ladder at home, the company pays him a weekly sum, does it not. Not his full wages, I am not saying that, but during the period he is off work for any reason connected with an accident or any other injuries the company pays him a weekly sum?

'A--No, sir, I don't believe so.

'Q--Well, isn't it a fact that during the period that Mr. Brindle was off, this seven weeks he wasn't working at Perfection, the company paid him $235.00 on top of his medical bills?

Mr. Crowell: Your Honor, we are going to object to this line of questioning. We talked about one thing, retirement age, and now we are talking about medical bills and talking about a specific instance.

Mr. McNagny: This has more to do with the accident than the man's retirement age. He is only 40 years old.

[138 INDAPP 696] Mr. Crowell: I don't know, due to the fact we are alleging personal disability.

The Court: Objection overruled and exception.

Mr. Crowell: Your Honor, could the record show an objection to all this line of questioning?

The Court: Yes. You may show an objection but the plaintiff's attorney on direct examination opened up the question of the union contract as to the number of hours when overtime should be paid, the retirement age and so on, and the court overrules the objection for the reason that you can't put part of a contract in evidence without putting the entire contract in. The court feels the door has been opened.

(The preceding question was read by the reporter: 'Well, isn't it a fact that during the period that Mr. Brindle was off, this seven weeks he wasn't working at Perfection, the company paid him $235.00 on top of his medical bills?')

Mr. Crowell: Show our objection.

The Court: The same objection and same ruling to each question propounded by the attorney for the defendant concerning this matter.

'A--I can't answer that. I don't know.

'Q--Are you aware that on his total medical bills, hospital bills, on all his bills of every kind and character, which amount to approximately eight hundred dollars, the company has paid over $623.00?

'A--No, sir. I don't know anything.

'Q--You are not denying that could be correct, are you?

'A--I don't know, sir.

'Q--You know that there is such a plan that would take care of that?

'A--I know that they have a plan. Ours is separate from the one that they have and I am not really too familiar with their plan.'

Appellant contends that the questions propounded on cross-examination went beyond the scope of direct examination. It appears from the record, as shown above, that the justification for admitting the testimony was that it pertained to the same general employee benefit contract[138 INDAPP 697] as did retirement benefits, which were questioned on direct examination by the appellant. Upon examining the record we can find no evidence to indicate that there was in fact but one single contract of employee benefits at Perfection. However, this fact alone would hardly seem sufficient grounds upon which to base a reversal. We feel, therefore, the necessity to look further into the previous holdings in this area. We realize that the vast majority of the cases reported--far too numerous to be cited--hold that the admission or exclusion of testimony on cross-examination is left to the discretion of the trial court, and will be overturned only upon a clear abuse of that discretion. It must also be admitted that after a lengthy search of the cases none has been found that give a clear definition of what factors are necessary to constitute such an abuse.

We have therefore attempted to seek out such guidelines as do appear and apply them to the facts of the instant case.

It is the law that where the direct examination of a witness opens a general subject, cross-examination may go into any phase of that subject which tends to modify, explain, or rebut the statements made on direct examination. Essex v. Millikan (1928), 88 Ind.App. 399, 164 N.E. 284; 30 I.L.E., Witnesses, Sec. 113, p. 105; 20 Am.Jur., Evid., Sec. 275, p. 262; Dotterer v. State (1909), 172 Ind. 357, 88 N.E. 689, 30 L.R.A.,N.S., 846. 'The cross-examination of a witness should not be extended to irrelevant, collateral, or immaterial matters * * *.' 30 I.L.E., Witnesses, Sec. 122, p. 119. (Emphasis added) And in Wesfall v. Wait (1905), 165 Ind. 353, 73 N.E. 1089, the court said:

'It will not be necessary in this case to determine whether or not the cross-examination exceeded proper limits, inasmuch as that fact, upon the evidence elicited, would not constitute reversible error. Appellees were entitled to make these witnesses their own, and to prove upon direct...