Gerking v. Johnson

• Decision Date: 13 October 1942
• Docket Number: 27726.
• Parties: GERKING v. JOHNSON.
• Court: Indiana Supreme Court

44 N.E.2d 90

220 Ind. 501

GERKING v. JOHNSON.

No. 27726.

Supreme Court of Indiana

October 13, 1942

Appeal from Circuit Court, Hamilton County; Ernest R. Stewart, speciaL judge.

Cloe & Campbell, of Noblesville, and Fenton, Steers, Beasley & Klee, of Indianapolis, for appellant.

Seth S. Ward, of Indianapolis, Christian &amp Waltz, and C. W. Day, all of Noblesville, and Richard Smith of Indianapolis, for appellee.

RICHMAN Judge.

Appellee when she was ten years old, was injured by collision with appellant's automobile at a street crossing in Indianapolis. She recovered a verdict for $3,000 on which was entered the judgment from which this appeal is taken. The only error assigned and not waived is the overruling of a motion for new trial in which the questions hereafter discussed were properly presented.

Specifications of the motion charging misconduct of a juror who conversed with appellant during a luncheon hour and misconduct of the jury in arriving at a quotient verdict can not be considered for lack of special bill of exceptions. It is true that supporting affidavits were filed with appellant's motion for new trial, but these affidavits may not be treated as evidence under the rule stated in Headlee v. State, 1930, 201 Ind. 545, 168 N.E. 692, 170 N.E. 433; and Soucie v. State, 1941, 218 Ind. 215, 225, 31 N.E.2d 1018, 1021.

There are no substantial differences between appellant's 16th instruction which was refused and his 13th which was given. The same thing is true of the 30th which was refused and the 20th which was given. There was no error, therefore, in refusing either of these two instructions.

It is asserted that the evidence is insufficient to sustain the verdict and that the damages assessed are excessive. The first question was presented, however, more or less incidentally in connection with appellant's more serious claim of prejudicial misconduct of counsel. The evidence is conflicting. That most favorable to appellee is sufficient to support the ultimate inferences of appellant's negligence and appellee's freedom from contributory negligence which, aside from the amount of damages, were the only issues before the jury.

On the question of damages the evidence discloses that appellee was injured August 10, 1935. She was knocked down and badly bruised. Her right ankle was fractured and required a cast that remained thereon six weeks. Thereafter she walked on crutches for about three weks. She missed the two first weeks of school in September, 1935, but subsequently her attendance was perfect until the date of the trial in March, 1940. Before the accident she had no headaches but they have since been constant. There was no medical testimony except an answer to a hypothetical question to the effect that, 'the blow received would be a producing cause of the headaches of which she complains,' and that this condition 'is permanent in nature.' During the year after the accident she did not participate in the physical education program in school, but since then has done the usual work in such classes. Aside from headaches there was no permanent disability and there was no disfigurement. While the evidence as to headaches was subjective and, as disclosed by cross examination of the physician, might have been due to other causes than the accident, we are not permitted to weigh the evidence but must accept it in the most favorable light to appellee. We are not able to conclude therefrom that a verdict for $3,000 was so large as to indicate that in its award the jury acted from improper motives such as prejudice, partiality or corruption. Public Utilities Co. v. Handorf, 1916, 185 Ind. 254, 112 N.E. 775; Citizens' Telephone Co. v. Prickett, 1919, 189 Ind. 141, 125 N.E. 193.

In his cross examination of one of appellant's witnesses, appellee's counsel developed the fact that the witness had talked with a Mr. Johnson who was employed by an insurance company. The witness was asked, 'By what insurance company?' and answered, 'State Auto.' There was no objection to the question but a motion to strike it out was sustained by the trial judge who added, 'The jury will disregard the statement of the witness about an insurance company.' This was sufficient.

The most serious question presented concerns misconduct of Seth S. Ward, an attorney for appellee. Appellant argues that deliberately, from the beginning to the end of the trial, he repeatedly went out of the record to bring before the jury matters which would not have been proper as evidence and which were so prejudicial in character that in spite of the fact that the court sustained objections in each instance and admonished the jury to disregard the statements they were so firmly fixed in the minds of the jurors that their verdict must thereby have been influenced. In view of the facts that the question of liability was closely contested and the verdict was substantial, appellant insists that the cumulative effect of the acts of misconduct requires reversal.

The only language in the opening statement to which specific objection was made was: 'We are going to give them credit for Fifteen Dollars in this case.' In the closing argument appellant objected to three statements:

'Beasley and Johnson know they are going to get the worst burning they ever got in Hamilton County.'

'I say it was an uneventful recovery in the ordinary time. She was in a cast six weeks and three weeks more on crutches. There was nine weeks the child was laid up and you know she still had pain from that broken ankle. They are trying to minimize--Why Beasley got his elbow hurt and you never heard anybody squawk so loud or know anybody to get so many thousand dollars out of it.'

And 'There oughtn't to have been a long-drawn-out trial. They ought to make a substantial offer and ask the approval of you gentlemen in this case.'

In each instance the trial judge promptly and plainly told the jury to disregard the language and at the conclusion of the evidence in his instruction No. 3 stated, '* * * that you are not permitted to consider any evidence which has been excluded by the Court, nor are you to consider any statements made by counsel as evidence; * * *.'

Each of the first two quotations was part of a harangue concerning matters wholly inadmissible in evidence. The parts to which objection was not made were, we think, more likely to damage appellant than the parts quoted. Each time after the court had admonished the jury the appellant unsuccessfully moved that the submission be set aside. The motion was general and must be deemed to have called in question only the...