Gardner v. Lake Eliza Resort, 3-677
Decision Date | 29 May 1979 |
Docket Number | No. 3-677,3-677 |
Citation | 180 Ind.App. 637,390 N.E.2d 666 |
Parties | Debra GARDNER and Gregory Gardner, Appellants (Plaintiffs), v. LAKE ELIZA RESORT and Steve Barrett, Appellees (Defendants.) A 144. |
Court | Indiana Appellate Court |
R. Cordell Funk, Hammond, for appellants.
Frank Galvin, Hammond, Winfield Houran, Clifford, Houran, Hiller & Sullivan, John E. Hughes, Hoeppner, Wagner & Evans, Valparaiso, Theodore Fitzgerald, Petry & Fitzgerald, Hebron, for appellees.
Debra Gardner and Gregory Gardner 1 brought an action for personal injuries against Lake Eliza Resort and Steve Barrett. After trial, the jury returned a verdict for the defendants. On appeal, the Gardners raise several errors for our review.
We reverse, due to error in the admission of evidence that defendant Lake Eliza carried no applicable liability insurance.
The Gardners brought their action for negligence per se based upon the theory that Lake Eliza had violated the Indiana statute 2 prohibiting the sale of alcoholic beverages to a minor. Brattain v. Herron (1974), 159 Ind.App. 663, 309 N.E.2d 150. In order to recover, the Gardners were required to prove: (1) that Lake Eliza sold alcoholic beverages to Gregory Gardner, a minor; and (2) that the consumption of the alcoholic beverages was a proximate cause of the accident in which the Gardners were injured.
When presenting the defense, Lake Eliza's attorney, Winfield Houran, questioned Tom Fitzgerald, the operator of Lake Eliza, regarding instructions that Fitzgerald allegedly gave Lake Eliza's employees. During the course of the questioning, Lake Eliza's attorney elicited the fact that Lake Eliza carried no liability insurance to cover a judgment in the case. The Gardners' attorney, R. Cordell Funk, twice objected and moved for a mistrial. The trial court overruled the objections and allowed the evidence. The record shows the complete exchange as follows:
The oft-cited rule in Indiana has been stated as follows:
Miller v. Alvey (1965), 246 Ind. 560, 207 N.E.2d 633, 637. An exception to this general rule exists if the proof of liability insurance is revealed incidental to proof of competent evidence which is relevant to the issues involved in the trial. Pickett v. Kolb (1968), 250 Ind. 449, 237 N.E.2d 105. In this case the testimony regarding defendant's lack of insurance had no relevance to the issues at trial. The precise reasons Fitzgerald may have had for instructing his employees were not related to the issue of whether a sale had, in fact, been made.
Since the trial court allowed inadmissible evidence to be considered by the jury, we must determine whether the error so prejudiced the proceedings as to require reversal.
Under Indiana law, a deliberate attempt by counsel to inject insurance into a case constitutes reversible error. Lamb v. York (1969), 252 Ind. 252, 247 N.E.2d 197. The transcript shows that Lake Eliza's counsel initially did not intentionally elicit testimony as to Lake Eliza's lack of insurance. However, after the Gardners' counsel objected and moved for a mistrial, Lake Eliza's counsel reiterated the lack of insurance in a question specifically asking whether a potential judgment would not be paid by any type of insurance. The Gardners' counsel's immediate objection and motion for mistrial were again ignored. We are unable to imagine a more deliberate method of...
To continue reading
Request your trial-
Clouse v. Fielder
...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,......
-
Duke's GMC, Inc. v. Erskine
...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 Normally......
- Terrell v. State, 3-1178A295
-
Stone v. Stakes
...response to a question on re-direct examination, was not a deliberate attempt to interject insurance). Cf. Gardner v. Lake Eliza Resort, 180 Ind.App. 637, 390 N.E.2d 666, 669 (1979) (holding that even though defense counsel inadvertently obtained information from a defense witness regarding......