Indiana State Highway Commission v. Vanderbur

• Decision Date: 16 March 1982
• Docket Number: No. 1-280A33,1-280A33
• Parties: INDIANA STATE HIGHWAY COMMISSION, Defendant-Appellant, v. Judy VANDERBUR, Administratrix of the Estate of Edward Evans Vanderbur, Deceased, Plaintiff-Appellee, Carolyn J. Redmon, Administratrix of the Estate of James R. Redmon, Deceased, Cross-Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 418

432 N.E.2d 418

INDIANA STATE HIGHWAY COMMISSION, Defendant-Appellant, v. Judy VANDERBUR, Administratrix of the Estate of Edward Evans

Vanderbur, Deceased, Plaintiff-Appellee,

Carolyn J. Redmon, Administratrix of the Estate of James R.

Redmon, Deceased, Cross-Plaintiff-Appellee.

No. 1-280A33.

Court of Appeals of Indiana, First District.

March 16, 1982.

Linley E. Pearson, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., Indianapolis, for defendant-appellant.

Leon D. Cline, Cline, King & Beck, Columbus, Lineback & Lewis, P. C., Greenfield, for Vanderbur.

Vernon J. Petri, Petri & Fuhs, Indianapolis, George B. Davis, Davis & Davis, Greenfield, for Redmon.

NEAL, Judge.

Defendant-appellant Indiana State Highway Commission (State) appeals a judgment in a wrongful death action, arising from a truck wreck, in favor of plaintiff-appellee Judy Vanderbur, Administratrix of the Estate of Edward Evans Vanderbur, Deceased, and cross-plaintiff-appellee Carolyn J. Redmon, Administratrix of the Estate of James R. Redmon, Deceased, from which it appeals.

ISSUES

The State presents seven issues for review as follows:

I. Did the trial court abuse its discretion in granting appellees' joint motion for severance and realignment of parties?

II. Did the trial court err in excluding from the jury's consideration evidence of Vanderbur's claim against Redmon?

III. Did the trial court err in excluding evidence of Vanderbur's complaint against Redmon?

IV. Did the trial court err in excluding evidence of admissions made by Vanderbur and Redmon in their depositions?

V. Did the trial court err in excluding evidence of Vanderbur's answer to the State's interrogatories?

VI. Did the trial court err in refusing to give the States's tendered Instruction No. 10?

VII. Did the trial court err in overruling the State's motion for mistrial and objections to the supplemental "Allen" charge read about 2:00 a. m.?

STATEMENT OF THE FACTS REGARDING ISSUES I THROUGH VI

This cause was initiated by the filing of a complaint by Vanderbur against the State Redmon filed a cross action against the State for the wrongful death of her husband, James, alleging the same negligence as did Vanderbur. Upon joint motion of Vanderbur and Redmon, over objections by the State, the trial court granted a severance of actions and a realignment of parties, wherein Vanderbur and Redmon both became plaintiffs on their suits against the State, and the action of Vanderbur against Redmon was severed for trial at another time. The ground alleged in the motion was conflict of interest between the personal attorney of Redmon pursuing the cross-claim and the attorney for the insurance carrier defending the suit by Vanderbur, the former's interest being to maximize damages, the latter's interest being to minimize damages. No explanation appears to demonstrate the validity of this assertion.

and Redmon for the wrongful death of her husband, Edward. It was alleged as follows: that on November 24, 1975, Edward was a passenger in a semi-tractor trailer rig (semi) driven by James Redmon traveling north on Indiana State Highway 3 in Henry County, Indiana. Upon clearing the crown of the overpass over U.S. Highway 40, which runs from east to west, Redmon was confronted with a line of northbound stopped vehicles. These vehicles were waiting for the lead vehicle to turn left on an unmarked county road which forms a "T" intersection with Highway 3 a short distance north of the apex of the overpass. In attempting to stop, Redmon's semi jackknifed, and collided with a south-bound semi. This collision caused the death of both Edward Vanderbur and James Redmon. The complaint, proceeding upon the theory of concurrent negligence on the part of both James Redmon and the State, alleges that Redmon negligently operated his semi, and that the State negligently constructed and maintained a hazardous, dangerous, and hidden "T" intersection close to the crown of the overpass.

The trial court then granted Vanderbur and Redmon's motions in limine prohibiting the State from placing before the jury the existence of Vanderbur's suit against Redmon. This ruling excluded the complaint and certain answers in depositions, interrogatories, and cross examination; however, underlying facts were admitted which tended to show that the semi brakes were unsatisfactory, the semi jackknifed, and the semi crossed the center line.

DISCUSSION AND DECISION

Issue I. Realignment

Under Ind. Rules of Procedure, Trial Rule 52(B), a trial court has wide discretion to bifurcate trials in furtherance of convenience and to avoid prejudice. We will not disturb its ruling unless a clear abuse of discretion is demonstrated. Newton v. Yates, et al., (1976) 170 Ind.App. 486, 353 N.E.2d 485; see Dayton Walther Corp. v. Caldwell, (1979) Ind.App., 389 N.E.2d 723, rev'd on other grounds, Ind., 402 N.E.2d 1252.

In this case the State is obligated to try only the case which encompassed the identical claims of plaintiff, Vanderbur, and cross-plaintiff, Redmon. The claim of Vanderbur against Redmon is of no concern to the State, as the negligence of a concurrent tortfeasor is no defense. Swallow Coach Lines, Inc. v. Cosgrove, (1938) 214 Ind. 532, 15 N.E.2d 92. Apparently, the State's principal complaint regarding the severance of Vanderbur's claim against Redmon is not that it caused the State prejudice or inconvenience in defending its claim, but that the State was not permitted to demonstrate that another potential concurrent tortfeasor was available to share in culpability on Vanderbur's claim. This matter is discussed in subsequent issues. We find no error in the severance of the claim against Redmon.

Issues II and III. Exclusion of complaint and other evidence of Vanderbur's claim against Redmon

The trial court excluded the State's offer of the original complaint in which Vanderbur alleged in paragraph 7 that Redmon's attempt to stop jackknifed the semi, causing the collision, and in paragraph 8 The State is correct in its assertion that any statement made or attributed to a party which constitutes an admission against his or her interest and tends to establish or disprove a material fact in the case is competent evidence against that party. The admissibility of admissions rests on the fact of inconsistency with the present position of a party who made them. 31A C.J.S. Evidence § 272; 12 I.L.E. Evidence § 131. Pleadings, even if withdrawn, can form the basis of an admission. Templer v. Lee, (1914) 55 Ind.App. 433, 103 N.E. 1090; The Louisville, New Albany and Chicago Railway Company v. Hubbard, (1888) 116 Ind. 193, 18 N.E. 611. This rule includes an alternate theory stated in a complaint, The Baltimore and Ohio and Chicago Railway Company v. Evarts, (1887) 112 Ind. 533, 14 N.E. 369, even where the two repugnant theories were bifurcated for trial. Cox v. Ratcliffe, (1886) 105 Ind. 374, 5 N.E. 5. When the pleadings are not part of the case being tried, they are merely evidential admissions, which are not conclusive and may be open to contradiction or explanation. Boots et al. v. Canine, (1884) 94 Ind. 408; Cleveland, Cincinnati, Chicago and St. Louis Railway v. Gray, (1897) 148 Ind. 266, 46 N.E. 675. Regarding admissibility, the question is not the weight of the evidence but its relevancy and competency. When evidence is relevant, it should be admitted, however little it seemingly tends to prove. Boots, supra.

that Redmon and the State were guilty of concurrent negligence. The State in its answer admitted that Redmon's semi jackknifed and caused the collision, but denied paragraph 8 in its entirety. The State argues that Vanderbur is bound by the allegations in the complaint because they are admissions by a party of record which are inconsistent with her position at trial. The only inconsistency we perceive is that in the complaint Vanderbur contends that Redmon and the State were concurrently negligent, and at trial, after the bifurcation, she contended only that the State was negligent. At trial, the State's position apparently was that James Redmon's negligence was the sole proximate cause of the death of the two decedents, and that Vanderbur's assertion of negligence on Redmon's part was admissible as a link in the proof of that position. The State argues that although the concurrent negligence of other wrongdoers is not a defense if the defendant was also negligent, Swallow Coach Lines, Inc., supra, the State may still offer the admissions to prove that the negligence of James Redmon was the sole proximate cause of the death of Edward Vanderbur.

As a general rule admissions by one party to an action are not admissible as evidence against a co-party. 12 I.L.E. Evidence § 137; Buchanan et al. v. Morris, (1926) 198 Ind. 79, 151 N.E. 385; Garr, Scott, & Co. v. Shaffer et al., (1894) 139 Ind. 191, 38 N.E. 811. Further it is error not to so charge the jury. Roberts et al. v. Kendall, (1891) 3 Ind.App. 339, 29 N.E. 487. However, it has been held that it is not reversible error to admit into evidence the admission of a co-party where the trial court admonishes the jury to limit the application of the admission to the party making it, and gives a final instruction to that effect. Dunbar et al. v. Demaree, (1936) 102 Ind.App. 585, 2 N.E.2d 1003; Roberts, supra.

It is further the law in Indiana that where an adverse party denies an allegation in a pleading such allegation cannot thereafter be used as an admission. Lamb v. Thieme, (1977) Ind.App., 367 N.E.2d 602; Brown v. Grzeskowiak, (1951) 230 Ind. 110, 101 N.E.2d 639.

The complaint of Vanderbur was not an admission of Redmon or her decedent, and would have been prejudicial to Redmon's cause. The State did not seek to limit the offer to Vanderbur alone, and the unsupported allegations cannot bind Redmon. Under Dunbar, supra; Roberts, supra, their admission into evidence without admonitions and instructions limiting their application would have been reversible error....