Highshew v. Kushto

• Decision Date: 22 March 1956
• Docket Number: No. 18691,18691
• Citation: 126 Ind.App. 584,133 N.E.2d 76
• Parties: Gertrude C. HIGHSHEW, Appellant, v. James E. KUSHTO, Appellee.
• Court: Indiana Appellate Court

Page 76

133 N.E.2d 76

126 Ind.App. 584

Gertrude C. HIGHSHEW, Appellant, v. James E. KUSHTO, Appellee.

No. 18691.

Appellate Court of Indiana, In Banc.

March 22, 1956 Transfer to Supreme Court Denied May 29, 1956.

Stevens & Wampler, George Stevens, Plymouth, Hammerschmidt & Johnson, Milton A. Johnson, South Bend, for appellant.

Marshall F. Kiser, Plymouth, John W. Montgomery, South Bend, for appellee.

CRUMPACKER, Judge.

In our initial opinion, filed February 7, 1956, 131 N.E.2d 652, 655, we made the following comment:

'Upon the voir dire examination of one Alfred Drews touching his competency to act as a juror in this cause it was established that he had bought a policy of insurance on his wife's automobile from the Inter Insurance Exchange of the Chicago Motor Club. By reason of this he was challenged for cause by the appellee and excused by the court. The appellant complains of this not on the ground that the challenge for cause was erroneously sustained but because the incident, in effect, informed the whole jury that the appellant was insured by the Inter Insurance Exchange of the Chicago Motor Club which was bound to pay any judgment that was rendered against her.'

The appellant contends that this is a misstatement of the record in that she charged error in sustaining the challenge of the juror Drews independent of the effect of the incident on the jury as a whole and our opinion fails to decide that question. We were led to the remarks above quoted by the following statement in the appellant's brief:

'Appellee stated as grounds for challenge for cause that Juror Drews had bought a policy of insurance for his wife with the Inter-Insurance Exchange and offered to prove that his wife had such policy, and the court thereupon, excused him. We are attacking the challenge for cause because it tells the jury that appellant was insured. We do not question the right to make the interrogation. It is for the purpose of exercising preemptory challenges. Beyer v. Safron (1926), 84 Ind.App. 512, 151 N.E. 620. There is no question that telling the jury that such company was making the defense constitutes error. Inland Steel Co. v. Gillespie (1914), 181 Ind. 633, 104 N.E. 76. What difference is there between the situation in the case at bar? The court's excusing for such cause was in effect telling the entire panel that this company was making the defense.'

Upon further examination of the record we find that Specification 5(a) of the appellant's motion for a new trial is as follows: 'The c...