City of Terre Haute v. Deckard

• Decision Date: 28 June 1962
• Docket Number: No. 30279,30279
• Parties: CITY OF TERRE HAUTE, Indiana, Appellant, v. Audie Fay DECKARD, Appellee.
• Court: Indiana Supreme Court

Page 815

183 N.E.2d 815

243 Ind. 289

CITY OF TERRE HAUTE, Indiana, Appellant, v. Audie Fay DECKARD, Appellee.

No. 30279.

Supreme Court of Indiana.

June 28, 1962.

Rehearing Denied Sept. 25, 1962.

Frank P. Crawford, City Atty., Terre Haute, for appellant.

Robert H. Duffy, Terre Haute, James P. Savage, Clinton, for appellee.

LANDIS, Justice. ¹

This case comes to us on petition to transfer from the Appellate Court under Burns' § 4-215 (1946 Replacement), Acts 1933, ch. 151, § 1, p. 800, the Appellate Court's opinion appearing in 175 N.E.2d 141.

Appellee brought this action against appellant City of Terre Haute to recover damages for personal injury and property damage allegedly sustained by appellee when a motor vehicle operated by appellee was struck from behind by a police car owned by appellant City and operated by a police officer. The police car was apparently on its way to the scene of a fire when the accident occurred. Trial was had by a jury, resulting in a verdict and judgment for appellee in the sum of $30,000.

This action is authorized by Burns' § 47-2030a (1952 Replacement), Acts 1945, ch. 197, § 1, p. 635. ²

Among the errors assigned on this appeal are the overruling of appellant's motion for new trial and motion for remittitur, filed respectively 21 and 29 days after the verdict of the jury, attempting to raise for the first time as a part of its defense, matter in mitigation of damages, to wit: that appellant had taken out a policy of liability insurance in the amount of $10,000 covering the automobile accident sued on and that under and applicable statute ³ recovery was limited to the amount of such policy and that the excess of $20,000 over said policy limit of $10,000 was therefore excessive and should be set aside. No evidence was introduced in support of the motion for remittitur or the motion for new trial nor was the insurance contract relied on therein set out in the motions or anywhere in the record.

At the outset we should observe that Art. 1, § 20, of the Constitution of Indiana provides: 'In all civil cases, the right of trial by jury shall remain inviolate.' The case before us was an action in tort for damages and was therefore a civil cause in which the parties were entitled to a trial by jury.

See Allen v. Anderson (1877, 57 Ind. 388.

The authorities throughout the country as to the pleading and proof of matter in mitigation of damages are set forth in 25 C.J.S. Damages § 142, p. 780, as follows, to wit:

'According to some authority matters in mitigation of damages may be shown under an answer containing a general denial only, and need not be specially pleaded, while according to others matters in mitigation to be available as an issue must be specially pleaded by defendant. In still other jurisdictions, the rule is that it is only new matter in mitigation that must be specially pleaded, and that anything in evidence which tends to disprove the amount of damages alleged is still competent under the general issue and must be considered by the jury along with the other testimony in the case.'

It has been the settled rule in Indiana that evidence in mitigation of damages is admissible under what has been known as an answer of general denial except in actions of libel and slander where it may be specially pleaded. Mosier v. Stoll et al. (1889), 119 Ind. 244, 249, 20 N.E. 752, 754; Walker v. Johnson (1893), 6 Ind.App. 600, 605, 33 N.E. 267, 269, 34 N.E. 100; Smith and Smith v. Lisher (1864), 23 Ind. 500, 502. See also Pittsburgh, etc. R. Co. v. Higgs (1906), 165 Ind. 694, 702, 76 N.E. 299, 302, 4 L.R.A.,N.S., 1081, 1088, wherein it was held that where a defendant railroad company relies upon a contract to defeat plaintiff's action for damages for its negligence, it must set out such contract as an answer.

There can be no question but that the matter in mitigation raised by appellant for the first time in its motion for new trial and motion for remittitur presented an issue of fact by which it attempted to avoid liability or partial liability for the damages asserted by appellee in the action. The evidence as to the existence of liability insurance covering the instant automobile accident might be one way or the other. However, it was a matter upon which the burden rested on appellant and as it presented a factual issue similar to other defenses or partial defenses available to a defendant seeking to escape liability or partial liability for the damages claimed, it had to be presented, if at all, upon the trial of the cause, which appellant did not see fit to do.

Appellant's counsel cannot subsequently, long after he has learned the outcome of the jury's verdict and become dissatisfied there-with, raise questions or defenses which appellant could and should have presented at the trial.

No contention has been made by appellant in this case that the matter offered in defense or mitigation was discovered for the first time after the trial, nor that it was presented to the court at the first opportunity by appellant's motion for new trial, so as to entitle appellant to a new trial on the basis of newly discovered evidence.

It has been suggested by appellant in the case before us that it might have been inexpedient for appellant City in the trial of the instant cause before a jury to have offered proof of the policy of liability insurance insuring the City from liability for damages up to $10,000, as this could have prejudiced the jury.

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 evidence as to the existence of insurance is often inadmissible because irrelevant, there are numerous cases involving situations where evidence of insurance coverage is competent. For example, it has been recognized in the great preponderance of jurisdictions in this country, including Indiana, that evidence as to the possession of liability insurance will not be excluded in cases where its suppression would exclude evidence material to the establishment of a cause of action and the liability of a defendant sued for damages.

See cases collected in annotation 4 A.L.R.2d 761, 775; Snider v. Truex (1943), 222 Ind. 18, 51 N.E.2d 477.

It necessarily follows that proof of insurance if necessary to establish either a cause of action or defense under the issues, is competent and may be shown.

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.

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, § 20, supra, of the Indiana Constitution.

The court below committed no error in overruling the motion for remittitur and motion for new trial predicated on the belated defense of mitigation of damages.

Appellant further contends the court erred in giving plaintiff's-appellee's Instruction No. 1, which reads as follows:

'The Court instructs the jury that while it is necessary for the plaintiff to offer some evidence tending to prove each material allegation of his complaint, it is not necessary that such evidence shall be direct, but any fact necessary to constitute plaintiff's cause of action may be proved by circumstantial evidence as well as by direct testimony if the jury finds that such fact is fairly to be inferred from all the circumstances in evidence, together with all other evidence introduced tending to prove or disprove such allegation.'

Appellant objected to this Instruction as follows:

'Defendant objects to plaintiff's instruction number One (1) to be given by the Court to the jury in this cause, for the reason that said instruction at line five (5) therein tells the jury that plaintiff may prove his case by circumstantial evidence, when in fact, there was no circumstantial evidence, introduced in the trial of this cause. Thus, said instruction misled the jury with respect to the proof of facts necessary to prove the material allegations of plaintiff's amended complaint and said instruction did not, nor did any other instruction offered by plaintiff, define the term 'circumstantial evidence', thereby leaving the jury to make its own determination as to what circumstantial evidence was. And the jury could under this instruction assume that inferences to be drawn from direct evidence would be circumstantial evidence and therefore said instruction is contrary to law.'

Under Rule 1-7 of this Court, no error with respect to the giving of instructions shall be available as cause for new trial or on appeal, except upon the specific objections made at the proper time in the trial court.

Contrary to the statement in appellant's objection, as cause for refusing the instruction, there was circumstantial evidence introduced before the jury, and therefore the objection is untenable on this ground. Appellant's objection that the instruction did not define the term 'circumstantial evidence' is not meritorious, as appellant was required if it desired a fuller statement of the law to be made, to tender such an instruction correctly expressing a more complete statement of the law. ⁴ Appellant's objection is not sufficiently specific as to the respect in which this instruction was prejudicial or the jury misled, and we cannot conclude the giving of the instruction was reversible error.

See also Indianapolis, § Cincinnati Traction Co. v. Monfort (1923), 80 Ind.App. 639, 139 N.E. 677, where an almost identical instruction was held not erroneous upon similar objections tendered to it.

Appellant also argues the court committed error in giving appellee's Instruction No. 15, which is as follows:

'If you find from the fair preponderance of the evidence that the plaintiff is...