Clouse v. Fielder, No. 1-1180A320

• Docket Nº: No. 1-1180A320
• Citation: 431 N.E.2d 148
• Case Date: February 15, 1982
• Court: Court of Appeals of Indiana

Page 148

431 N.E.2d 148 Donna CLOUSE, Defendant-Appellant,
v.
Georgia Lee FIELDER and James Fielder, Plaintiffs-Appellees. No. 1-1180A320. Court of Appeals of Indiana, First District. Feb. 15, 1982.

Page 150

Thomas G. Brenton, Paul T. Brenton, Brenton & Brenton, P. C., Danville, for defendant-appellant.

Joseph B. Barker, Martinsville, for plaintiffs-appellees.

RATLIFF, Presiding Judge.

STATEMENT OF THE CASE

Donna Clouse (Clouse) appeals the judgment of the trial court entered in favor of Georgia Lee Fielder (Georgia) for one thousand

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nine hundred dollars ($1900) for property damage and twenty thousand dollars ($20,000) for personal injuries arising from an automobile collision. James Fielder (James) cross appeals the trial court's judgment in favor of Clouse on his claim for loss of his wife's services as a result of this occurrence. We affirm in part and reverse in part. STATEMENT OF THE FACTS

An automobile collision occurred between Georgia and Clouse on Thompson Road in Morgan County, Indiana, on August 27, 1973. Georgia was driving in a northerly direction on Thompson Road and Clouse was driving in a southerly direction when the cars collided. Georgia suffered injuries to her knees, abdomen, chest, face, and forehead as a result of the collision.

On June 9, 1975, Georgia and James filed suit in Morgan Circuit Court against Clouse. They alleged Clouse was driving her automobile on the wrong side of the road when the collision occurred. Georgia sought recovery of damages from Clouse for her personal injuries and property damage, and James sought recovery of damages for loss of his wife's services. The action was tried by a jury which reached a verdict in favor of Georgia for one thousand nine hundred dollars for property damage and twenty thousand dollars for personal injuries. The trial court entered the following judgment on the jury's verdict:

"Trial by jury was conducted in this cause beginning April 21, 1980 and ended April 23, 1980. This jury rendered its verdict for Georgia Fielder and against the Defendant for Twenty thousand ($20,000.00) Dollars for her personal injuries and for Georgia Fielder and against the Defendant for property damages for Nineteen hundred ($1,900.00) Dollars. The jury was polled by the Defendant's counsel and the verdicts were unanimous.

"No verdict was rendered by the jury either for or against the Defendant on the Plaintiff James Fielder's claim against the Defendant, Donna Clouse, and it is Therefore Ordered that judgment be entered for defendant Donna Clouse and against James A. Fielder.

"Final judgment is therefore now entered for Plaintiff Georgia Fielder and against Defendant, Donna Clouse in the sum of Twenty-one thousand nine hundred ($21,900.00) Dollars.

"Copies of this Final Judgment are ordered sent by the Clerk of this Court to all counsel of record so that appeal may be taken by either party upon all issues resolved by this Judgment.

"ALL OF WHICH IS ORDERED, ADJUDGED AND DECREED this 16 day of May, 1980."

Clouse and James filed motions to correct errors which were overruled by the trial court. This appeal and cross appeal then were pursued. ¹

ISSUES

Clouse raises the following issues, which in the interest of clarity we have restated, for our review:

1. Whether the trial court erred by not granting a mistrial when Georgia and her counsel mentioned insurance during the direct examination of Georgia.

2. Whether the trial court erroneously admitted Georgia's Exhibit 12 into evidence over Clouse's objection.

3. Whether the trial court erroneously denied the admission of Clouse's Exhibit F into evidence and erroneously denied Clouse the use of Exhibit F on cross-examination of Georgia's expert witness.

4. Whether the trial court's mispronunciation of the words "causal" and "causally" during the reading of final instructions is grounds for reversal.

James in his cross appeal raises the following issue:

5. Whether the trial court could enter judgment against him without entering a directed verdict when the jury had returned no verdict on his claim.

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Issue One

Georgia, on direct examination, testified about a conversation at the scene of the accident among herself, Clouse, and Earnshaw, an Indiana State Trooper:

"A. Mr. Earnshaw said to Mrs. Clouse and myself, it's very hot out here so we'll sit in my car. He was in the front seat; we were in the back seat. She was on the driver's side of the back seat; I was on the passenger's side of the back seat, and while he was making out his report, he was talking, and he asked-you heard what he said-then he said...

BY MR. PAUL BRENTON: I think we're going to have error here. We've got a jury to decide this case...

BY COURT: I don't think we're going to have any error at all.

BY MR. BRENTON: Joe knows better.

BY MR. BARKER: There's no error here.

BY COURT: They were all in the presence of each other. She can say what was said and somebody else can say something else. This is her testimony as she remembers it. Go on.

A. Mr. Earnshaw said to Mrs. Clouse-well, first he asked if there were any internal injuries or if anyone had been taken to the hospital or anything and we told him no. All I had was the bruises that was coming up on me. At that time, I had a bit goose-egg thing coming up on my forehead, so then Mr. Earnshaw proceeded and he said, I quote...

BY MR. TOM BRENTON: To which we will object, Your Honor, for purposes of the record, anything that Mr. Earnshaw said.

BY COURT: As far as what he said, as far as his opinion of the wreck and all that kind of thing, You're ____.

BY MR. PAUL BRENTON: That's what we're getting into. He's already said he didn't remember saying anything.

BY MR. BARKER: Your Honor, he's available for recall and it's not hearsay. She was there; Mr. Earnshaw can come back if they want him to come back.

BY MR. TOM BRENTON: I don't believe, Your Honor, that there's any law in the State of Indiana that says the officer can testify to what he thought the cause was and that's what we're getting at.

BY COURT: Well, I don't know what he said, I wasn't there, no one else was there(.)

BY MR. BARKER: Do you want to ask any preliminary questions?

BY COURT: ____ whose fault or whose not fault it was is not permissible. Now as far as what the defendant said in his presence, in your presence, you may testify.

Q. Now don't-if the police officer indicated who's at fault, don't state that.

A. We were in his car and he was making out his report and he asked were there any internal injuries, was anyone taken to the hospital. We both told him no. Then he asked Mrs. Clouse her insurance company...

BY MR. PAUL BRENTON: Now, Your Honor, if she's going to talk about-this is improper. ____ and we ask for a mistrial at this time. After fourteen objections, he does it deliberately.

BY COURT: Well, I'll admonish the jury immediately to disregard anything about insurance. There's no place in this case...

BY MR. PAUL BRENTON: That's right, no place in this case.

BY COURT: Now any more on that, I will declare a mistrial.

Q. Don't mention anything about insurance.

A. Okay.

Q. You can say...

BY MR. PAUL BRENTON: He's already said it, Your Honor, ____ this case would be mistried.

BY COURT: Does the jury understand my admonition at this time? Any reference to insurance has no place in the trial. The only question that was on

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voir dire related to insurance and you answered that. That still has no place in the trial actually according to our higher courts. Now, proceed."

Record at 211-15.

Clouse contends on appeal the trial court's failure to declare a mistrial is reversible error. Georgia counters that the trial court did not abuse its discretion when it decided not to declare a mistrial. Any potential error, the Fielders state, was cured by the trial court's admonishments to the jury.

Generally, any evidence or remarks about liability insurance in a negligence case is inadmissible. Lamb v. York, (1969) 252 Ind. 252, 247 N.E.2d 197; Wiles v. Mahan, (1980) Ind.App., 405 N.E.2d 591; Gardner v. Lake Eliza Resort, (1979) Ind.App., 390 N.E.2d 666; Herman v. Ferrell, (1971) 150 Ind.App. 384, 276 N.E.2d 858; Rust v. Watson, (1966) 141 Ind.App. 59, 215 N.E.2d 42, reh. denied 217 N.E.2d 859, trans. denied. As stated by Judge Hunter in Rust v. Watson, (1966) 141 Ind.App. 59, 76, 215 N.E.2d 42, 51:

"The rationale of these rulings seems to be that only evidence which is pertinent to the issues presented by the case is admissible. The underlying consideration is the presumption that if the jury has cognizance of the fact that the defendant will not bear the incident of the judgment, the jury wil(l) be prejudiced in favor of an excessive verdict."

Although generally inadmissible, evidence of insurance coverage will be admitted when the fact of coverage is relevant to a material issue. Wiles v. Mahan, supra. When inadmissible evidence of insurance coverage is interjected into a trial, the trial court may withdraw the case from the jury or admonish the jury. Gardner v. Lake Eliza Resort, supra; Herman v. Ferrell, supra. However, a deliberate attempt by counsel to interject insurance into a case constitutes reversible error. Gardner v. Lake Eliza Resort, (1979) Ind.App., 390 N.E.2d 666.

Clouse, citing us to Gardner, supra, contends the interjection of insurance in this case constitutes reversible error since it was done deliberately and in bad faith. In Gardner, Lake Eliza's attorney elicited the fact that the defendant, Lake Eliza, carried no liability insurance to cover a judgment in the case. This testimony was not intentionally elicited. However, Gardner's counsel objected and moved for a mistrial, which was overruled. Lake Eliza's counsel then reiterated the lack of insurance in a question which asked whether a judgment for the plaintiff would not be paid by any type of insurance. A second objection and request for mistrial, by Gardner's counsel, were...