Clouse v. Fielder
Decision Date | 15 February 1982 |
Docket Number | No. 1-1180A320,1-1180A320 |
Citation | 431 N.E.2d 148 |
Parties | Donna CLOUSE, Defendant-Appellant, v. Georgia Lee FIELDER and James Fielder, Plaintiffs-Appellees. |
Court | Indiana Appellate Court |
Thomas G. Brenton, Paul T. Brenton, Brenton & Brenton, P. C., Danville, for defendant-appellant.
Joseph B. Barker, Martinsville, for plaintiffs-appellees.
Donna Clouse (Clouse) appeals the judgment of the trial court entered in favor of Georgia Lee Fielder (Georgia) for one thousand 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.
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:
Clouse and James filed motions to correct errors which were overruled by the trial court. This appeal and cross appeal then were pursued. 1
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.
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-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...
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...
Q. Don't mention anything about insurance.
A. Okay.
Q. You can say...
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:
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 overruled. This court, on appeal, found the trial...
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