City of Shelbyville v. Morton

• Decision Date: 07 July 1965
• Docket Number: No. 19866,No. 2,19866,2
• Citation: 208 N.E.2d 705,138 Ind.App. 460
• Parties: CITY OF SHELBYVILLE, Indiana, Appellant, v. Gary Paul MORTON, by his next friend, Paul Morton, Appellee
• Court: Indiana Appellate Court

Page 705

208 N.E.2d 705

138 Ind.App. 460

CITY OF SHELBYVILLE, Indiana, Appellant, v. Gary Paul MORTON, by his next friend, Paul Morton,

Appellee.

No. 19866.

Appellate Court of Indiana, Division No. 2.

July 7, 1965.

Rehearing Denied Aug. 5, 1965.

[138 INDAPP 462]

Branigin & DeMoss, Franklin, Donald L. Brunner, Shelbyville, Brunner, Brown & Brunner, Shelbyville, of counsel, for appellant.

H. Harold Soshnick, Shelbyville, Pogue & Young, Franklin, Soshnick & Brenton, Shelbyville, of counsel, for appellee.

MOTE, Judge.

This action was duly commenced by the appellee, Gary Paul Morton, a minor, eleven years of age, by his next friend, against the appellant city, seeking to recover damages for alleged personal injuries allegedly sustained as a proximate result of the negligence of appellant.

In material pertinent substance, appellee's complaint alleged: that East Hendricks Street was a public highway of blacktop and asphalt construction located in and maintained by the appellant city and heavily traveled by the public generally; that appellee and many others inhabited and lived in a trailer park on the south side of said street; that there was a private drive leading from said highway to and into said trailer park; that between the hours of five and six o'clock P.M. on May 29, 1959, appellee was attempting to walk across said street to the north side thereof from said entrance[138 INDAPP 463] and while so doing and as a direct and proximate result of appellant's alleged negligence, he stepped into a deep, jagged hole or rut on the traveled portion of said highway; that said hole or rut had existed in said street for a long period of time to the knowledge of the officers and officials of appellant city; that as a proximate result of appellant's alleged negligence, appellee sustained certain described personal injuries and a consequent crippled and disabled physical condition; that appellee gave appellant written notice of the time, place, cause, and nature of his alleged injuries.

The complaint charged appellant with negligence in permitting and allowing said highway to become out of repair and unsafe for use; in permitting said deep and jagged hole to exist and remain deeper and lower than the general level of the street and thereby creating a hazardous depression for pedestrians; in permitting said condition of the highway to continue for more than one year prior to appellee's fall and injuries, with actual notice and knowledge of said unsafe condition of said highway for many months prior to appellee's fall; and in failing to warn pedestrians of the existence of said hold or rut and failing to block off or barricade the same.

Appellant's answer in admission and denial closed the issues which were submitted to a jury for trial. The latter returned a verdict that appellee recover of appellant the sum of Thirty Thousand ($30,000.00) Dollars and consistent judgment was rendered on the verdict. Appellant's motion for a new trial was overruled and this appeal followed.

Appellant assigns as error the overruling of its motion for new trial and eight other assignments which it will be unnecessary to notice as any proper specifications of error are contained in the new trial motion.

The first specification of error urged by appellant is the asserted error of the court in overruling two motions for [138 INDAPP 464] continuance allegedly filed by appellant on, respectively, March 2, 1962, and March 7, 1962. We do not find copies of the referred to motions in appellant's concise statement of the record. See Rule 2-17(d). Attached to appellant's motion for a new trial are Exhibits A and B, the former bearing the title of 'Affidavit for Continuance' and the latter the title of 'Motion for Continuance.' There is a purported file date on each. However, there is nothing in appellant's brief to show that said exhibits constitute a part of the record in this cause. Rule 1-15 of the Rules of the Supreme Court of Indiana has reference to affidavits in support of motions for a new trial, not to the original pleadings or motions filed during the progress of a trial. As has been many times determined, we may not search the record to reverse. It may be appropriate, however, to observe that the exhibits attached to the motion for a new trial, designated as motions for a continuance, lack much in factual statement as to the diligence of appellant in procuring the attendance of the named witness at the forthcoming trial, or in taking his deposition, or that his testimony was imperative, and they are wholly insufficient to warrant a finding of abuse of judicial discretion by the trial court in the denial thereof.

Appellant next offers, jointly, three specifications of error, namely: (c) overruling by the court of appellant's offer to introduce evidence of its public liability insurance policy with Ten Thousand $10,000.00) Dollars to a single person limitation of liability for bodily injury, which offer was made after verdict and discharge of jury but before entry of judgment; (d) entering judgment for Thirty Thousand ($30,000.00) Dollars after refusal to hear the evidence referred to in (c) above; (e) overruling by the court of appellant's motion to modify the judgment by reducing the same to Ten Thousand ($10,000.00) Dollars. This cause was submitted for trial on March 7, 1962, and on March 19th, 1962, some eleven or twelve days after the return of the verdict by the jury, appellant filed its 'offer to introduce [138 INDAPP 465] certain evidence', attaching thereto, as Exhibit B, a copy of a liability insurance policy providing maximum liability of Ten Thousand ($10,000.00) Dollars to any one person, which appellant alleged it had purchased on January 1, 1959, pursuant to the provisions of Acts 1941, ch. 52, Sec. 2, Burns' 1952 Replacement, Sec. 39-1819. On April 2, 1962, the court refused appellant's offer to introduce said evidence and entered judgment on the verdict. The record discloses no objection by appellant to the entry of the judgment. Thereafter, on April 3, 1962, appellant moved the court to modify and correct said judgment by reducing the same to Ten Thousand ($10,000.00) Dollars for the reason that the maximum amount of liability insurance carried by appellant on the date of the accident, May 29, 1959, was Ten Thousand ($10,000.00) Dollars and 'which, therefore, was the maximum amount for which judgment could be rendered against said city in this cause of action.' No issue of the insurance carriage by appellant nor evidence relating thereto was tendered or offered at or during the trial of the cause. The first mention of it appears to have been made, as stated above, at least eleven days after the verdict and discharge of the jury.

In City of Terre Haute v. Deckard (1962), 243 Ind. 289, 183 N.E.2d 815, the appellant city, after the verdict against it by the jury, filed a motion for remittitur in mitigation of the Thirty Thousand ($30,000.00) Dollar judgment to Ten Thousand ($10,000.00) Dollars on the ground of a liability insurance policy carried by the city. The motion was overruled. There, as here, the asserted error was specified in the motion for a new trial which was overruled by the court. The Supreme Court, in a three to two decision in that case, held that:

'The issue of the carrying of liability insurance, if appellant desired to take advantage of it, should have been offered by appellant on the trial of the case, and by failing to do so appellant waived such defense or partial defense.' (Emphasis supplied.)

[138 INDAPP 466] The court further declared:

'Any effort to raise this defense long after the trial of the case was improper and invaded appellee's right to have this issue of his case submitted to the jury, contrary to Art. 1, Sec. 20, supra, of the Indiana Constitution.' (Emphasis supplied.)

There was a dissent by two of the judges in that case, but we are bound by the majority opinion as a leading and controlling precedent.

In the instant appeal, as in the aforementioned Deckard case, the appellant stresses the argument that for appellant 'to directly plead and prove insurance would have been handing (to the) jury (a) blank check in the amount of $10,000.00, to be made out in favor of (the) minor plaintiff when no liability in fact existed.' Concerning this claimed inexpediency, the Supreme Court, in the above mentioned Deckard case, said:

'However, evidence material to the establishment of a cause of action or defense cannot be considered improper or inadmissible simply because it is prejudicial. * * *' While serious questions may be urged as to the applicability of the provisions of Acts 1941, ch. 52, Sec. 2, Burns' 1952 Replacement, Sec. 39-1819, to the factual situation here made apparent, ¹ we are relieved of any expression relative thereto by the failure of appellant to offer evidence of its insurance on the trial of the cause. Under the ruling found in the City of Terre Haute v. Deckard, supra, we find no error in the court in its refusal to admit appellant's belated tender of such evidence or to modify the judgment appealed from. Other suggested impropriety[138 INDAPP 467] of appellant's motion to modify the judgment need not be further noticed.

Appellant next says that it 'believes that use of the blackboard in opening statement by plaintiff's attorney in calling the jury's attention to the amount of damages and life expectancy of the minor plaintiff in an argumentative way' was manifest error. In its motion for a new trial appellant specifies the error as 'Misconduct of the prevailing party in this, to-wit: blackboard by plaintiff's attorney in calling Jury's attention to amount of damages and life expectancy of minor plaintiff in opening statement * * *'. Then follows an objection made by counsel for appellant:

'* * * defendant, during argument objects to the use of the blackboard by * * * attorney for the plaintiff * * * which blackboard at the time of objection, shows the...