Burrus v. Silhavy, 3--872A47

• Docket Nº: No. 3--872A47
• Citation: 155 Ind.App. 558, 293 N.E.2d 794, 35 Ind.Dec. 541
• Case Date: March 21, 1973
• Court: Court of Appeals of Indiana

Page 794

293 N.E.2d 794 155 Ind.App. 558, 63 A.L.R.3d 304 Homer BURRUS, Appellant (Plaintiff Below),
v.
Raymond SILHAVY and Joseph Silhavy, Jr., Appellees (Defendants Below). No. 3--872A47. Court of Appeals of Indiana, Third Division. March 21, 1973.

[155 Ind.App. 559]

Page 795

Philip M. Cagen, of Cagen & Tsoutsouris, Valparaiso, Lowell E. Enslen, of Peters, McHie, Enslen & Moran, Hammond, for appellant.

Winfield L. Houran, and William F. Satterlee, III, of Chester, Clifford, Hoeppner & Houran, Valparaiso, Lester L. Wilson, Winamac, for appellees.

STATON, Judge.

STATEMENT ON THE APPEAL: Homer Burrus received a Five Thousand Dollar ($5,000.00) judgment at the conclusion of a court trial for personal injuries sustained in an automobile collision. Feeling that the $5,000.00 judgment [155 Ind.App. 560] was inadequate damages, he filed a motion to correct errors which was granted by the Porter Superior Court. The Silhavys filed a motion for change of venue from the county and the cause was venued to the Pulaski Circuit Court. Prior to the second trial, the Silhavys filed a 'motion in limine' which sought a protective order regarding the mentioning of a $7,000.00 payment made to Burrus by the Continental National Insurance Group. This 'motion in limine' was granted. Upon the conclusion of a second trial by jury, the verdict was returned for the Silhavys and against Burrus. Burrus received a negative judgment at the conclusion of the second trial. He filed his motion to correct errors which raises these issues for our consideration:

1. Does the State of Indiana recognize the use of a 'motion in limine'?

2. Did the trial court commit reversible error in granting the 'motion in limine'?

A trial court has the inherent power to admit or exclude evidence. A 'motion in limine' is a necessary adjunct to the inherent power of a trial court to exclude inadmissible and prejudicial evidence before and during trial. The granting of such motions may necessitate the issuance of protective orders which will assure a fair and impartial administration of justice. The record does not reveal any error committed by the trial court when it sustained the Silhavys' 'motion in limine.' In our opinion which follows, we hold that 'motions in limine' are recognized as a part of the procedural practice in the State of Indiana and that the trial court did not commit reversible error when it granted the Silhavys' 'motion in limine.' We affirm the judgment of the trial court.

STATEMENT OF THE FACTS: Burrus tried his first personal injury action in the Porter Superior Court without a jury. ¹ The trial court rendered a judgment in Burrus' favor [155 Ind.App. 561] for $5,000.00, but Burrus filed a motion to correct errors alleging that the recovery was inadequate. The motion was sustained and a new trial granted. The Silhavys filed a motion for change of venue from the county and the cause was venued to the Pulaski Circuit Court.

Prior to the commencement of the second trial, the Silhavys filed a 'motion in limine' seeking a protective order from the trial court which would prevent Burrus, his counsel and witnesses from mentioning anything concerning a $7,000.00 payment made by Continental National Insurance Group. The 'motion in limine' read as follows:

'Come now the defendants, in the above-entitled case, before trial and selection of a jury, to move the Court in Limine to instruct the plaintiff and all its counsel and witnesses, as set forth below, on the following grounds:

'That William Ward as a representative of Continental National American Group, made a prepayment of Seven thousand ($7,000.00) Dollars under its co-operative claim program, to the plaintiff, Homer Burrus, through his attorney, Philip M. Cagen, That the prepayment was not made as a loan agreement

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nor was there any written agreement to reimburse Continental National American Group, nor was there any other condition attached to the prepayment.

'1. It is immaterial to this suit whether or not plaintiff received certain prepayment benefits from Continental National American Group and the allowance of the prepayment or any facts pertaining thereto would be prejudicial to the defendants.

'2. Were any of the above facts made known to the jury, it would be highly improper and prejudicial to defendants, even though the Court were to sustain an objection and instruct the jury not to consider such facts for any purpose. In all probability any such attempt on the part of counsel for the plaintiff or its witnesses would result in a costly mistrial.

'WHEREFORE, plaintiff (sic) respectfully requests the court to instruct the plaintiff and its counsel and witnesses not to mention, refer to, interrogate concerning, or attempt to convey to the jury in any manner, either directly or indirectly, any of the above-mentioned facts without first obtaining permission of the court outside the presence and [155 Ind.App. 562] hearing of the jury, and further to instruct the plaintiff and all its counsel and witnesses not to make any reference to the fact that this motion has been filed and granted and to warn and caution said individuals and persons to follow these same instructions strictly.'

The cause was tried by jury and a verdict was rendered in favor of the Silhavys. Burrus had received a negative judgment at the conclusion of the second trial and filed his motion to correct errors which was overruled. The issues raised by the overruling of this motion are set forth below.

STATEMENT OF THE ISSUES: Homer Burrus' motion to correct errors raises these issues for our consideration on appeal:

1. Does Indiana recognize the use of a 'motion in limine'?

2. Did the trial court commit reversible error in granting the...