Clevenger v. Kern

• Decision Date: 16 October 1935
• Docket Number: No. 14992.,14992.
• Citation: 197 N.E. 731,100 Ind.App. 581
• Parties: CLEVENGER v. KERN.
• Court: Indiana Appellate Court

100 Ind.App. 581

197 N.E. 731

CLEVENGER

v.KERN.

No. 14992.

Appellate Court of Indiana, in Banc.

Oct. 16, 1935.

Appeal from Superior Court, Tippecanoe County; Fred N. Prass, Judge.

Suit by John Kern against Andrew Jackson Clevenger. Judgment for plaintiff, and defendant appeals.

Affirmed.

Stuart & Stuart, of Lafayette, for appellant.

Chas. L. Vaughan and Vincent D. Vaughan, both of Lafayette, Howard Brockway, of Brookston, and Chas. D. Lesley, of Lafayette, for appellee.

WOOD, Judge.

This was a suit by appellee against appellant, to recover damages sustained because of the death of a minor child, resulting from the alleged negligent conduct of appellant in the operation of an automobile upon a public highway in this state. The issues consisted of a complaint in one paragraph, and an answer in general denial. Trial was had by a jury, which returned a verdict in favor of appellee for the sum of $3,400, on which, after the overruling of a motion by appellant for a new trial, judgment was rendered.

Appellant appeals, properly assigning and not waiving, as errors for reversal, the overruling of his motion for a venire de novo, and his motion for a new trial. In his motion for a new trial appellant alleged 74 causes; those not waived for failure to discuss them in his brief are Nos. 1, 2, 3, 4, 12, 14, 28, 33, 34, 36, 60, 61, 62, 63, 64, 66, 67, and 73. We will consider these causes for a new trial in the order in which they are discussed in appellant's brief.

[1][2][3][4] In causes 1 and 2 the amount of the verdict is questioned as being excessive. The victim of the accident was a girl twelve years of age, in good health. The measure of damages in a case of this kind is the value of the child's services from the time of death until she would have attained her majority, taken in connection with her prospects in life, less the cost of her support and maintenance during that period, including board, clothing, schooling, and medical attention. Such damages are incapable of determination by any mathematical or exact rule, and the amount must be fixed by estimate which bears some semblance to conjecture. From the very nature of the circumstances, there can be no exact or uniform rule of the determination of the value of services which a deceased person would have rendered, had death not intervened. “A verdict will not be disturbed on appeal on the ground of excessive damages unless it is so excessive as to indicate that the jury acted from prejudice, partiality or corruption.” Elliott v. Kraus (1930) 92 Ind. App. 494, 172 N. E. 783, 785;Ohio Valley Trust Co. v. Wernke (1912) 179 Ind. 49, 99 N. E. 734;American Motor Car Co. v. Robbins (1913) 181 Ind. 417, 103 N. E. 641;Thompson v. Town of Fort Branch (1931) 204 Ind. 152, 178 N. E. 440, 82 A. L. R. 1413;New York, etc., R. Co. v. Mushrush (1894) 11 Ind. App. 192, 37 N. E. 954, 38 N. E. 871;City of Elwood v. Addison (1901) 26 Ind. App. 28, 59 N. E. 47;Terre Haute, etc., Traction Co. v. Maberry (1913) 52 Ind. App. 114, 100 N. E. 401;Lake Erie, etc., R. Co. v. Chriss (1914) 57 Ind. App. 145, 105 N. E. 62;Terre Haute, etc., Traction Co. v. McDermott (1924) 82 Ind. App. 614, 145 N. E. 782; City of Michigan City v. Szczepanek (1926) 85 Ind. App. 227, 150 N. E. 374 (Transfer denied to Supreme Court); Kanuch v. Prentiss (1929) 89 Ind. App. 358, 164 N. E. 708; 2 Parmale, Damage Verdicts, § 495, p. 2242. An examination of the record discloses that there was no evidence presented by the appellant in mitigation of damages. From the facts as disclosed by the evidence upon this phase of the case, which is undisputed, we are unable to discover anything to induce the belief that the damages awarded by the jury were the result of prejudice, partiality, passion, or corruption. We would not, therefore, be justified in reversing the judgment because of excessive damages.

[5] Appellant next discusses cause 73. This has reference to the action of the court in overruling his motion made during the trial to withdraw the submission of the cause from further consideration by the jury, because of misconduct of counsel for appellee in the redirect examination of Ed Dreblow, a witness called to testify for the appellee. During the examination of the prospective jurors on their voir dire, counsel for appellee asked each of them if they were acquainted with one Velda Klepinger, and if acquainted with him, they would, because thereof, give more credence to his testimony than they would to other witnesses, should he be called to testify as a witness in the trial of the cause. In the same examination counsel for appellee also asked each of the jurors whether they or the members of their family had any connection or relation with any insurance company and particularly the State Farm Mutual Automobile Insurance Company. No complaint is made of this examination of the jurors on their voir dire, but during the re-examination of the witness Dreblow while testifying as a witness for and on behalf of appellee the following questions were asked and answers given:

“Question. Was Velda Klepinger there? Answer. He was there after the accident.

“Question. When you went down that evening? Answer. After that.

“Question. What was he doing down there? Answer. He came down to ask about the accident and wanted to know who would know of it.

“Mr. A. E. Stuart: Oh no; You can't give the conversation.

“Question. You can't give the conversation Mr. Dreblow; who is Velda Klepinger? (To which question the defendant objects for the reason it is immaterial who he is. Objection overruled *** defendant excepts.)

“Question. Who is he Mr. Dreblow? Answer. In what way?

“Question. What does he do? Answer. Insurance agent.

“Question. He is what? Answer. Represents an insurance company.”

The defendant (appellant) thereupon moved “to set aside the submission because counsel has violated the rule and has transgressed the bounds of good faith for the purpose of introducing into this case a question of an insurer.” All of the above facts and circumstances are brought into the record for our consideration by a separate bill of exceptions. There was no motion interposed to strike out the answer to any of these questions. Whether this was necessary to present properly the matter complained of for our consideration we do not decide. Appellant insists that in view of the character of the examination of the jurors on their voir dire, the conduct of counsel in the examination of this witness and the answers elicited from the questions propounded was prejudicial to the rights of appellant.

Except as set forth in this bill of exceptions, there was no other reference or suggestion made to the matter of insurance, either in the evidence or in any statement or argument of counsel, to which our attention has been directed. While Mr. Klepinger may have represented some insurance company, there is no evidence in the record that he represented or was in any way connected with the insurance company concerning which the jurors were interrogated on their voir dire.

The record discloses that upon cross-examination of the witness Dreblow by attorneys for appellant, he was questioned concerning his visit to the scene of the accident on the day on which it happened, and who was present on that occasion, whereupon he named several persons but did not name Mr. Klepinger. It was on redirect examination of this witness that the testimony above set out was given.

The case of Inland Steel Co. v. Gillespie (1914) 181 Ind. 633, 104 N. E. 76, and other cases in its class, announce the rule to be observed in the examination of jurors on their voir dire, and are of assistance, but they are not controlling in the instant case. Grossnickle v. Avery (1926) 96 Ind. App. 479, 152 N. E. 288. “The line of demarcation between prejudicial and nonprejudicial remarks of this character cannot be readily drawn. Each case depends largely upon the circumstances by which they are elicited, and their probable effect upon the jurors.” Faber v. C. Reiss Coal Co. (1905) 124 Wis. 554, 102 N. W. 1049, 1052.

By appellant's instruction No. 4, given upon his request, the jury was informed that the only parties to the litigation were the appellee and appellant; that the only issues presented for trial were those tendered by the pleadings between such parties; that in determining such issues the members of the jury should not allow themselves to be influenced in any manner or to any extent by reason of the fact that upon their examination preliminary to acceptance as jurors they were questioned concerning their interest in or relation to any insurance company. We assume, in the absence of some showing to the contrary, that the jury heeded the instruction of the court and did not allow the conduct of counsel to prejudice it against the rights of appellant. Faber v. C. Reiss Coal Co., supra. The real test is: Was there such lack of good faith upon the part of counsel under all the circumstances confronting the court and jury in this particular case as that it cannot reasonably be said that the rights of appellant were not prejudiced thereby? The conduct of counsel, while it was not persisted in, had some tinge of sharp practice, which cannot be too severely condemned in the trial of lawsuits.

In the case of Central Coal & Coke Co. v. Orwig (1921) 150 Ark. 635, 235 S. W. 390, 394, the court in commenting upon the argument of an attorney to the jury said: “The remarks of counsel were highly improper. See Williams v. Cantwell, 114 Ark. 542, 170 S. W. 250;Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1, 147 S. W. 83. But it does not occur to us that they were so flagrant as to produce a deep-seated and irremovable prejudice in the minds of the jury. To so hold would impeach the jury of a desire or willingness to give heed to the remarks of interested counsel, rather than to follow the instructions of the impartial judge, and this too notwithstanding their oath to decide the case according to...