Jackson v. Beard, 769A133

• Decision Date: 09 March 1970
• Docket Number: No. 769A133,No. 1,769A133,1
• Citation: 146 Ind.App. 382,255 N.E.2d 837
• Parties: Edward C. JACKSON, Appellant, v. Howard J. BEARD, Appellee
• Court: Indiana Appellate Court

Page 837

255 N.E.2d 837

146 Ind.App. 382

Edward C. JACKSON, Appellant, v. Howard J. BEARD, Appellee.

No. 769A133.

Appellate Court of Indiana, Division No. 1.

March 9, 1970.

William F. McNagny and Robert L. Thompson, Jr., Barrett, Barrett & McNagny, Fort Wayne, for appellant.

Thomas W. Yoder and Edward L. Murphy, Jr., Livingston, Dildine, Haynie & Yoder, Fort Wayne, for appellee.

LOWDERMILK, Chief Justice.

Appellee herein, plaintiff below, Howard J. Beard, commenced his action against appellant, defendant below, Edward C. Jackson, charging in his complaint that on August 21, 1964, appellee was the owner of a 1955 Plymouth four-door sedan, which he was operating on the streets of Fort Wayne, Indiana, and that he brought his said automobile to a stop on Washington Street, on the west side of the intersection of Clinton and Washington Streets, behind a line of waiting motor vehicles stopped for traffic to clear. Traffic cleared and proceeded through the intersection of Calhoun and Washington, and the appellant drove his 1962 Plymouth two-door sedan into the rear of appellee's automobile, precipitating a collision and driving appellee's motor vehicle forward and into and against the motor vehicle stopped ahead of appellee Said complaint alleged that the appellant was guilty of negligence which was the sole proximate cause of the appellee's injuries, as follows: Failing to maintain a proper lookout, failing to apply his brakes in sufficient time to avoid striking appellee's motor vehicle, failing to keep his motor vehicle under control, in that he drove at an excessive speed of 20 miles per hour under the circumstances, failing to operate his motor vehicle at an appropriate reduced speed while approaching the intersection of Washington and Calhoun Streets, following appellee's motor vehicle too closely, and that as a proximate result of appellant's negligence, appellee was injured, sustaining a whiplash injury to the neck and aggravation of a pre-existing arthritic condition. The complaint further alleged that appellee had medical expenses of $240.44 and that his injuries were permanent, and that he was unable to work consistently at his occupation of farming, as a result of which he lost approximately $3,000 in earnings during the years 1964 and 1965 and that he would be unable to work full time at his occupation in the future.

Appellee further alleged that his automobile was a total loss and the damage to it was $200, and he sought overall relief of $45,000.

Appellant filed his answer under Supreme Court Rule 1--3A, which amounts to a denial of all of appellee's allegations.

The case was tried to a jury, which returned its verdict for the appellee and against the appellant in the amount of $10,000, upon which judgment was timely entered by the court.

Appellant subsequently filed his motion for a new trial, which is in the words and figures as follows, to-wit:

'The defendant in the above entitled cause moves the court for a new trial herein on each of the following grounds:

'1. Damages assessed are excessive.

'2. Error in the assessment of the amount of recovery in this that the amount is too large.

'3. Error of law occurring at the trial as follows:

'(a) The court erred in sustaining the objection of the plaintiff to the question hereinafter set forth propounded by the defendant during the direct examination of Howard J. Beard, plaintiff herein, witness called on behalf of the plaintiff who was questioned by defendant's attorney:

'Mr. McNagny: 'Let me ask you this, are you, when you got to be 65, were you eligible for social security.'

'Mr. Yoder: 'We object, Your Honor, for the reason that any benefits coming to Mr. Beard from some third source or evidence as to his financial standing is not admissible and Mr. McNagny knows that. This is the matter we were through in the chambers this morning. This is not admissable evidence and I am objecting on that ground. The case is Brindle versus Harter.'

'Mr. McNagny: 'As the court very well knows as we also discussed in the chambers, Your Honor, we might say that the court said that if the evidence is relevant and has a bearing on why he cut back on his income, or why he cut back on his farming after his biggest year, it certainly should be shown to the Jury and that's the reason--'

'Mr. Yoder: 'If we're going to have an argument on this, I'd respectfully suggest that the Jury be excused and we examine the authorities.'

'The Court: 'Well, what I said this morning, Bill, was exactly right, except Mr. Beard has denied that this is why he cut back.'

'Mr. McNagny: 'I think that's for the Jury's consideration. I haven't found out yet whether it was, or whether it was a fact that--'

'The Court: 'Well, he's already denied that. He cut back in '65 for the reason that he was not able to do it, so I'm going to sustain the objection on the basis that it is not relevant.'

'Mr. McNagny: 'Then, as I understand the record now, the record shows that his highest income was in 1965. When he became 65, in 1966, he cut back and the court is not permitting me to ask him about social security, taking it at 65?'

'The Court: 'Yes, because in the previous question you asked him and he has denied this is why he cut back.'

'(b) The court erred in sustaining the objection of plaintiff to question hereinafter set forth propounded by the defendant during the cross-examination of Howard Beard, plaintiff herein, witness called on behalf of the plaintiff:

'Mr. McNagny: 'Let me ask you this question, Mr. Beard, do you get social security payments?'

'Mr. Yoder: 'Same objection, Your Honor, At this time I'm going to ask that Mr. McNagny be admonished against persuing this line of questioning. The court has ruled, we've been through this before and he knows it's highly improper.'

'Mr. McNagny: 'Well, Your Honor, I know nothing of the kind and neither does Mr. Yoder and I want to make my record proper.'

'Mr. Yoder: 'Your Honor, if we're going to have an argument on this, I suggest again that the Jury be excused and that we examine the authorities.'

'The Court: 'Well, at this time, I'm going to sustain the objection on the same grounds as the question before.'

'4. (c) The court erred in giving to the jury at the request of the plaintiff plaintiff's instruction numbered 6 and Court's instruction numbered 11, to the giving of each of which instructions the defendant duly objected within the proper time by making oral objections to the court reporter after the court had indicated the instruction it would give to the jury.'

'William F. McNagny, being duly sworn upon his oath, says that he is one of the attorneys for the plaintiff herein and was in court at all times during the trial of this case including the final argument. Affiant says that a major portion of the final argument of plaintiff's attorney was devoted to damages and that these damages were in large part computed by showing the plaintiff's income from farm operations for the five years prior to the accident, arriving at a median figure therefrom and applying this median figure to the five years subsequent to the accident. The argument was also made at some length that the plaintiff's income fell dramatically between the year 1965 and the year 1966 for the sole reason that the plaintiff's physical difficulties had so increased that he was unable to work to any substantial degree after the year 1965.

'The plaintiff in his conditional examination stated that in the year 1966, which was the year after the accident and the year after he had received his highest income on the farm, his income was cut back to approximately $1,500.00 solely because of physical disabilities. He admitted in the examination that he was eligible for social security payments at age 65 and applied for them in the year 1966. The evidence both of the doctor and the plaintiff himself, at certain points of his testimony at least, was that he had improved from his alleged injuries as time went by. The defendant was prevented from arguing that plaintiff voluntarily cut back his income in order to receive social security payments and had thereafter restricted his income for the same reason.

'The argument on decreased income as hereinbefore set out was used at length and to effect in the closing argument and would certainly appear to have had major effect upon the jury's verdict in view of the minimal special damages, the total lack of any hospitalization, and the non appearance of any objective symptoms of disability in the plaintiff's appearance.

/s/ William F. McNagny'

Appellant states that substantially the same question is raised by each of the three causes and has grouped and supported them by one argument, and we will treat them as consolidated.

It appears to us that the principal objection of appellant and the principal issue in this appeal is the matter of the court's not permitting certain evidence to go to the jury.

As will be noted from a review of the motion for new trial, this was the matter of appellee's reaching the age of 65 years and becoming eligible for social security. When asked about this appellee's counsel objected, claiming it was not admissible under the 'collateral source' rule and under the case of Brindle v. Harter. (Infra.)

The record shows that there was much discussion in the presence of the jury pertaining to the cut back on appellee's income and why it was cut back and the court sustained the objections to this question.

The following question was asked by the attorney for appellant:

'Mr. McNagny: 'Then, as I understand the record now, the record shows that his highest income was in 1965. When he became 65, in 1966, he cut back and the court is not permitting me to ask him about social security, taking it at 65?'

'The Court: 'Yes, because in the previous question you asked him and he has denied this is why he cut back."

Later Mr. McNagny asked the appellee this question:

'Mr. McNagny: Let me ask you this question, Mr. Beard,...