Evansville School Corp. v. Price

• Decision Date: 09 July 1965
• Docket Number: No. 20023,No. 1,20023,1
• Citation: 138 Ind.App. 268,208 N.E.2d 689
• Parties: EVANSVILLE SCHOOL CORPORATION, Appellant, v. Alfred PRICE, Father of Alfred Lee Price, Deceased, Appellee
• Court: Indiana Appellate Court

Page 689

208 N.E.2d 689

138 Ind.App. 268

EVANSVILLE SCHOOL CORPORATION, Appellant, v. Alfred PRICE, Father of Alfred Lee Price, Deceased Appellee.

No. 20023.

Appellate Court of Indiana, Division No. 1.

July 9, 1965.

Rehearing Denied Aug. 26, 1965.

[138 INDAPP 269]

Bamberger, Foreman, Oswald & Hahn, Evansville, for appellant.

Joseph B. Minor, Evansville, for appellee.

PRIME, Presiding Justice.

This action was commenced by Alfred Price, father of Alfred Lee Price (deceased), against the Evansville School Corporation, to recover damages for wrongful death allegedly sustained as the result of the decedent, Alfred Lee Price, being injured while a spectator attending a baseball game at Bosse Field in the City of Evanaville, Indiana. The boy, age 11, was struck on the head with a baseball on May 27, 1960, and died as a result of said injuries on May 29, 1960.

The case was originally filed in the Vanderburgh Probate Court and subsequently venued to the Warrick Circuit Court where it was tried by a jury on the issues as formed by the appellee's amended complaint and the amended answer of the appellant thereto. The jury returned a verdict favorable to the plaintiff-appellee, awarding him the sum of $14,500.00, [138 INDAPP 270] and the court rendered judgment on the verdict. The appellant filed its motion for a new trial, said motion was overruled by the trial court, and appellant appeals from this adverse ruling.

At the trial the appellee offered in evidence a color photograph designated Plaintiff's Exhibit No. 5. It depicted the deceased youth lying in his casket, after preparation by a mortician, and prior to interment. The photograph shows the white satin interior of the casket and that portion of the body exposed to public view. The decedent's face bears a deep than, and he is clothed in a white sport coat and a blue shirt open at the neck. The photograph is not gruesome, nor does it depict any physical markings, wounds, defects or other bodily abnormalities. The appellant objected to the admission of Exhibit No. 5 for a number or reasons. First, appellant objected on the ground that the pleadings admitted the fact that the decedent died as a result of injuries sustained on May 27, 1960, and therefore, no issue was presented to the jury concerning the fact or cause of death. Second, that Exhibit No. 5 could only serve to inflame the minds of the jury or excite their feelings, rather than to enlighten them as to any of the facts in issue. Third, Exhibit No. 5 is not material to any issue involved in the case.

Appellee alleged that the photograph was being offered into evidence to show the physical characteristics of the boy, and to corroborate testimony that the boy was a 'nice looking and healthy chap.' It was also offered into evidence to establish the fact that the parents incurred funeral expenses for the boy, and 'that he was properly interred.'

Appellant further objected to the admission of Exhibit No. 5 into evidence on the grounds that there was testimony in the record of two witnesses concerning the boy's health prior to his death, and that a picture of a person after death could not establish the person's condition of health prior to death, especially in light of the fact that the body had been prepared [138 INDAPP 271] for burial by a mortician. Appellant also objected on the ground that the fact that the boy was 'nice looking' or handsome does not constitute and admissible item of evidence because the measure of damages is limited to the pecuniary loss sustained by the parent.

Appellant's objections were overruled and the photograph was admitted into evidence. The appellant predicates error on this ruling by the trial court, for the reasons stated in the objections.

[1, 2] It is the rule in Indiana that the admission or rejection of photographs in evidence lies largely within the discretion of the trial court, and will not be disturbed unless an abuse of discretion is shown to have occurred. Dill v. Dill (1949), 120 Ind.App. 61, 65, 88 N.E.2d 396 (Transfer denied). It is also the law in this state that in order for a photograph to be admissible in evidence, it must first be accepted by the trial court as material and relevant, and must tend to prove or disprove some material fact in issue. Kiefer v. State (1958), 239 Ind. 103, 153 N.E.2d 899. See also: St. Lukes Hospital Asso. v. Long (1952), 125 Colo. 25, 240 P.2d 917, 31 A.L.R.2d 1120; 3 Wigmore, Evidence 3d ed. Sec. 792.

[3, 4] Relevancy is determined by an inquiry into whether or not a witness would be permitted to describe the objects photographed. Hawkins v. State (1942), 219 Ind. 116, 37 N.E.2d 79. Photographs should assist and enlighten the members of the jury, and not confuse or unduly prejudice them. Kiefer v. State, supra.

The fact that a photograph might arouse the passions of the jury and prejudice them against one of the parties is not a sufficient ground to justify its exclusion if the photograph is material and relevant. Kiefer v. State, supra.

The above stated rules are applicable, whether the judicial [138 INDAPP 272] proceedings involved are criminal or civil in nature, and whether the...