Duke's GMC, Inc. v. Erskine

• Decision Date: 18 April 1983
• Docket Number: No. 4-782A226,4-782A226
• Citation: 447 N.E.2d 1118
• Parties: DUKE'S GMC, INC., Appellant (Defendant Below), v. Gary ERSKINE, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1118

447 N.E.2d 1118

DUKE'S GMC, INC., Appellant (Defendant Below), v. Gary ERSKINE, Appellee (Plaintiff Below).

No. 4-782A226.

Court of Appeals of Indiana,

Third District.

April 18, 1983.

Rehearing Denied May 27, 1983.

Hugh Watson, David Elliott Jose, Locke, Reynolds, Boyd & Weisell, Indianapolis, for appellant.

William F. McNagny, Gary J. Rickner, John F. Lyons, Barrett, Barrett & McNagny, Fort Wayne, for appellee.

HOFFMAN, Presiding Judge.

This action was brought by Gary Erskine to recover damages for the loss of sight in one eye due to an accident which occurred while playing golf on June 9, 1973, at the Anderson Country Club. Erskine was struck by a golf ball hit by Myron W. Paugh who was playing in a foursome behind him.

The original action named as defendants the Anderson Country Club, Myron W. Paugh, and Duke's GMC, Inc. Paugh was the president of Duke's GMC, Inc., and the corporation paid his dues at the Anderson Country Club since part of his duties consisted of making contacts there in furtherance of the corporation's business. Prior to trial, Erskine received $7,500 from the Anderson Country Club, and the Club was dismissed from the litigation. Subsequently, Erskine and Paugh entered into a loan agreement wherein Paugh loaned Erskine $52,500 which was repayable only in the event Erskine recovered over $300,000 from Duke's GMC, Inc. As consideration for the loan, Erskine dismissed Paugh, without prejudice, from the litigation.

The case went to trial and resulted in a jury verdict in favor of Duke's GMC, Inc., and against Erskine. Thereafter, Erskine appealed, and this Court reversed the judgment and remanded the cause for a new trial. Erskine v. Duke's GMC, Inc. (1980), Ind.App., 413 N.E.2d 305.

The second jury trial resulted in a verdict in favor of Erskine and against Duke's GMC, Inc., in the amount of $150,000. From this judgment, Duke's GMC, Inc., has appealed and places this action once again before this Court. In so doing, it raises the following issues:

(1) whether the trial court erred in permitting the loan agreement into evidence in its entirety;

(2) whether the trial court erred in permitting the exhibits to be taken into the jury room;

(3) whether the trial court erred in refusing Duke's GMC, Inc.'s tendered instruction on its defense of full and partial satisfaction; and

(4) whether the trial court erred in giving Erskine's tendered Instruction Nos. 1, 5, 9, and 10.

Duke's GMC, Inc., first argues that the trial court erred in admitting the loan receipt agreement in toto. However, the objections clearly state that it had no objection to the relevant portions of the agreement being admitted. Duke's GMC, Inc., objected only to certain "irrelevant, hearsay, and prejudicial" portions and therefore, waived any error with regard to any other portions. Therefore, the only proper issue is whether the trial court erred in refusing to edit the agreement before admitting it into evidence. ¹

Specifically, Duke's GMC, Inc.'s complaint concerns references to its liability insurance company which were contained in the agreement. Duke's GMC, Inc., correctly cites Indiana case law which frowns on the admission of insurance evidence.

Generally, any evidence or remarks about liability insurance in a negligence case is inadmissible. Pickett v. Kolb (1968), 250 Ind. 449, 237 N.E.2d 105; Clouse v. Fielder (1982), Ind.App., 431 N.E.2d 148; Wiles v. Mahan (1980) Ind.App., 405 N.E.2d 591. However, this principle may not be expanded to the extent that it serves as a means of excluding otherwise competent evidence which is relevant to the issues involved in the trial. There are issues which arise and occasions when such evidence is admissible. Pickett, supra; Clouse, supra; Wiles, supra; Gardner v. Lake Eliza Resort (1979), Ind.App., 390 N.E.2d 666. Not all mentions of insurance constitute reversible error. Antcliff v. Datzman (1982), Ind.App., 436 N.E.2d 114.

Normally, 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. Clouse, supra; Gardner, supra. It is within the trial court's discretion to do so. Herman v. Ferrell (1971), 150 Ind.App. 384, 276 N.E.2d 858. However, if the trial court does not admonish the jury regarding the interjection of insurance and an admonition is deemed necessary by the injured party, then an instruction should be tendered. Garnder, supra; Herman, supra.

While it may have been preferable for the trial court to have edited the loan receipt agreement before admitting it into evidence, the record discloses that Duke's GMC, Inc., has failed to preserve any error for appeal with regard to the insurance references.

The objections made by Duke's GMC, Inc., are general in that they never state they are objecting to references made to insurance which appear in the agreement. When the objection gets specific at one point, listing certain lines and paragraphs to which they are objecting, some references to the insurance company are not contained in the list of objectionable lines and paragraphs. See Walczewski v. Wright (1979), Ind.App., 393 N.E.2d 228. The general objections preserve no error for review, Ind. Tri-City Plaza Bowl v. Estate of Glueck (1981), Ind.App., 422 N.E.2d 670, and any error in the admission of evidence is harmless if the same or similar evidence is submitted without objection. Barrow v. Talbott (1981), Ind.App., 417 N.E.2d 917.

The record also discloses no motion for a mistrial, no request for an admonition, and no instruction tendered on the subject by Duke's GMC, Inc. ² For all of these reasons, any error from the admission of the loan receipt agreement containing references to the insurance company must be deemed waived.

Duke's GMC, Inc., also contends that the trial court erred in permitting the exhibits, including the loan receipt agreement, to be taken into the jury room by the jury. It argues that this compounded the earlier alleged error by placing undue weight on the agreement resulting in increased prejudice.

The Supreme Court of Indiana, in the case of Thomas v. State (1972), 259 Ind. 537, 289 N.E.2d 508, adopted the American Bar Association standard concerning materials that may be taken to the jury room. This was done in order to guide judges in deciding which materials should be permitted in the jury room during deliberations.

"The best rule is found in Sec. 5.1 of the Standards Relating to Trial by Jury (American Bar Association Project on Standards for Criminal Justice):

'5.1 Materials to jury room.

(a) The court in its discretion may permit the jury, upon retiring for deliberation, to take to the jury room a copy of the charges against the defendant and exhibits and writings which have been received in evidence, except depositions.

(b) Among the considerations which are appropriate in the exercise of this discretion are:

(i) whether the material will aid the jury in a proper consideration of the case;

(ii) whether any party will be unduly prejudiced by submission of the material; and

(iii) whether the material may be subjected to improper use by the jury.' (our emphasis)."

259 Ind. at 540, 289 N.E.2d at 509.

In essence, it is within the trial court's sound discretion to determine whether to permit the taking of documentary evidence or exhibits, other than depositions, into the jury room. Barker v. Cole (1979), Ind.App., 396 N.E.2d 964.

The loan receipt agreement may well have aided the jury since the introduction of the entire scenario surrounding the agreement was somewhat confusing. Duke's GMC, Inc., has demonstrated no abuse of discretion by the trial court in permitting the exhibits to be taken to the jury room, and thus, no error.

Next, Duke's GMC, Inc., alleges the trial court erred in refusing its tendered instruction on the defense of full or partial satisfaction. The tendered instruction read as follows:

"INSTRUCTION NO. 6

The plaintiff received $60,000 from or for Anderson Country Club and Myron Paugh for the same occurrence for which plaintiff sues here.

Plaintiff is entitled to only one satisfaction of his claim.

If you find that under all of the issues and evidence in this case plaintiff's claim was satisfied by his receipt of such payments, then any and all others including defendant Duke's GMC, Inc. are discharged from any liability and in such event your verdict in this case must be for the defendant.

If you find that plaintiff should recover in this case and that his receipt of such payments did not satisfy his claim, then in determining the amount of your verdict for plaintiff you must consider to what extent, if any, plaintiff has received partial satisfaction of his claim. [ Bedwell v. Debolt, 221 Ind. 600, 609, 50 N.E.2d 875 (1943) ]"

Record at 220.

Duke's GMC, Inc., argues that it was entitled to such an instruction on its theory of the case, since it pleaded full or partial payment as a defense to the action.

In reviewing a trial court's refusal of tendered instructions, an appellate court must determine: 1) whether the tendered instruction correctly states the law; 2) whether there is evidence in the record to support the giving of the instruction; and 3) whether the substance of the tendered instruction is covered by other instructions which are given. School City of Gary v. Claudio (1980), Ind.App., 413 N.E.2d 628.

While we agree with Duke's GMC, Inc., that a plaintiff is entitled to only one satisfaction of his claim, we cannot agree that the instruction as tendered is a correct statement of the law. $52,500 of the $60,000 quoted in the instruction was received in the form of a loan receipt agreement. A loan receipt agreement, such as was executed in this instance, may not constitute a partial payment or satisfaction of a judgment. Amer. Transport v. Cent. Ind. R.R. Co. (1970), 255 Ind. 319, 264 N.E.2d 64; Barker, supra. Therefore, it would have been incorrect to instruct the jury that it...