City of Indianapolis v. Swanson

• Decision Date: 10 May 1983
• Docket Number: No. 583S164,583S164
• Parties: CITY OF INDIANAPOLIS, Appellant, v. Richard L. SWANSON, Appellee.
• Court: Indiana Supreme Court

Page 668

448 N.E.2d 668

CITY OF INDIANAPOLIS, Appellant, v. Richard L. SWANSON, Appellee.

No. 583S164.

Supreme Court of Indiana.

May 10, 1983.

John P. Ryan, Corp. Counsel, City of Indianapolis, David F. McNamar, Michael R. Franceschini, Steers, Sullivan, McNamar & Rogers, Indianapolis, for appellant.

C. Warren Holland, Holland & Tabor, Charles G. Reeder, Stewart & Reeder, Indianapolis, for appellee.

PIVARNIK, Justice.

This cause comes to us on a Petition to Transfer from the Fourth District Court of Appeals. Said Petition was brought by Defendant-Appellant City of Indianapolis (hereinafter "the City"). Plaintiff-Appellee Richard Swanson originally brought this personal injury action against the City alleging that the City's negligence in erroneously signing a roadway curve caused him to be injured in an automobile accident. A Marion Circuit Court jury found the City negligent and awarded Swanson $185,000. The trial judge entered judgment on the verdict. The City appealed to the Fourth District contending that certain of the trial court's evidentiary rulings were contrary to law and therefore represented an abuse of discretion. The City also challenged the propriety of some of the trial court's jury instructions. The Fourth District found no reversible error and affirmed the trial court. We now find the Fourth District and the trial court in error in several respects and accordingly vacate the opinion of the Court of Appeals, 436 N.E.2d 1179 (Ind.App.1982) and reverse the trial court.

During the early morning hours of May 25, 1975, Richard Swanson and passenger Anita Karto were traveling in an automobile along Sargent Road in suburban Indianapolis. Although the weather was clear and dry, it was dark and Swanson was unfamiliar with the roadway. A warning sign along Sargent Road showed a left reverse curve warning of a curve to the left and then to the right. Actually, the initial curve to the left was very slight and the more significant curve was sharply to the right and then to the left. Swanson drove his car to the left as he approached the curve to the right and traveled through a fence, striking an apple tree. His head hit the steering wheel and passenger Karto received various bruises and contusions. Swanson claims in this suit that he has suffered grand mal epileptic seizures, depression and a personality disorder as a result of his accident. The City raised ten issues for review on appeal. We now consider only the following issues in which we find reversible error:

1. whether the trial court abused its discretion by limiting the scope of the City's cross-examination of Swanson; and

2. whether the trial court abused its discretion by refusing to permit two of the City's witnesses to testify.

I

During its cross-examination of Swanson, the City attempted to introduce evidence that while selling illegal drugs to Officer Thomas Breen, Swanson told Breen that his injuries were fraudulent and made other statements which conflict with his direct testimony and with the testimony of his other witnesses. Specifically, the City sought to question Swanson about a conversation he allegedly had with Breen on March 16, 1979. The trial court consistently rebuffed each attempt to introduce this testimony claiming that its relevance was so grossly outweighed by its prejudicial character as to be unfair and inadmissible. The majority of the Fourth District agreed with the trial court and affirmed the exclusion of this evidence. We agree, however, with dissenting Judge Young who found that the trial court abused its discretion by limiting the City from cross-examining Swanson about his dealings with and his statements to Breen.

The City's counsel, Attorney McClelland, sought to lay a proper foundation for his examination of Swanson in regard to Breen. The trial judge prevented him from doing so, however, as the following excerpt from the record of this case reveals:

"[MR. McCLELLAND:] On March 16, 1979 at the International Harvester Bar did you represent to Thomas Breen--

MR. HOLLAND [Swanson's counsel]: Your Honor, I am going to object and then we have just got to have some rules on this--

THE COURT: Mr. McClelland, we are going to get into some reprimands here.

MR. HOLLAND: May we approach the bench, Your Honor?

THE COURT: I'm going to let the Jury out of here for a minute.

THE COURT ADMONISHES THE JURY

THE JURY LEAVES THE COURTROOM

THE COURT: Mr. McClelland, we have been walking into a mistrial here for three days and you're right on the brink of it and Tom Breen, as I know, (this is on the record) is a narcotic man. I've signed many search warrants for him and if you've got any arrests and convictions of narcotics they are not even admissible. Now let's get that straight. We've been skating on thin ice for three days here. Now if you want to go down the tube, that's entirely up to you. But, stay off of it and that's it.

THE COURT: Mr. McClelland, I want to apologize for getting a little shook up there but just a few moments before that you said that you weren't going to get into this. I happen to know who Tom Breen is. I happen to know the purpose for which you were bringing it up and as I said yesterday morning prior to starting this trial if you guys want to try a criminal case go down to Criminal One, Two, Three or Four.

MR. McCLELLAND: It was not my intention to bring up any statements with respect to the things we talked about. I had other--

THE COURT: I haven't sat here for almost three days to go into a mistrial at this stage of the game. I thought we'd be in one before noon yesterday and I'm not going to tolerate that.

MR. McCLELLAND: I understand.

THE COURT: You just stood up here a few minutes before and said that you weren't going to do that.

MR. McCLELLAND: And I wasn't--

THE COURT: But you did it. When we had our little conference here, you said that you weren't going to do it and then you started out with this watering hole business and the International Bar out there and Tom Breen. I happen to know who Tom Breen is. I've signed many search warrants for him on narcotics. So we're going to try a civil suit here and I'm not going to tell you how to try it but we're going to try a civil suit here. We're not going to try a criminal case. If you want to try a controlled substance case why (sic) you go down to Criminal Court and do it. I'm not going to have to sit all day long and admonish this Jury and get placed in the trick bag and I think that's what you're trying to do to me. All right bring the Jury in.

JURY COMES INTO OPEN COURT."

The City therefore made the following offer of proof:

"MR. McCLELLAND: Were Officer Breen permitted to testify, he would testify in substance as follows: On March 16, 1979, he purchased from Richard Swanson marijuana in the amount of thirty five dollars. On March 23, 1979, he also purchased marijuana from Richard Swanson in the amount of one hundred dollars. If he again were permitted to testify, Officer Breen would testify that Richard Swanson told him that he took a physical for the Indiana State Highway Commission for the purposes of failing that physical for the purposes of this trial here this week and today. Additionally, he would testify, if he were permitted to, that Mr. Swanson told him he did not suffer from seizures, that he could not take a job until this trial was over and that any cash that he received had to be in cash so that there were no record (sic) of any money that he received. Additionally, he indicated to Officer Breen that he sold drugs before, had a supplier and that he could get him whatever he needed. We think that goes into to rebut the testimony of Richard Swanson about the nature of the sources of his income and that is relevant. The fact that he chooses to make this money from an illegal transaction does not shield him from our having the opportunity to get in that and show what in fact he does. And, that is our offer to prove."

We find Swanson's alleged statements to Officer Breen relevant to the issues before the trier of fact since the statements were in direct conflict with Swanson's testimony and went to the very heart of his claim against the City. Swanson claimed that the City's negligence caused his accident resulting in grand mal epilepsy and personality changes which prevented him from a normal life and from making a living. It is significant that the record shows conflict in the evidence as to whether or not Swanson had grand mal epilepsy. Dr. Rehn testified that Swanson did not have trauma induced epilepsy but rather hyperventilation syndrome. He further testified that the electroencephalograms (EEG)...