Kickels v. Fein

• Decision Date: 11 October 1937
• Docket Number: 15389.
• Parties: KICKELS v. FEIN.
• Court: Indiana Appellate Court

10 N.E.2d 297

104 Ind.App. 606

KICKELS v. FEIN.

No. 15389.

Appellate Court of Indiana, in Banc.

October 11, 1937

McMahan Strom & Hulbert, of Gary, for appellant.

Call & Call, of Gary, for appellee.

WOOD Judge.

This is an action against the appellant for the recovery of damages for personal injuries sustained by appellee in falling into an elevator shaft in the garage of appellant, as the result of the alleged negligence of appellant in permitting the platform of said elevator to be and remain above the first floor of the garage, and failing to properly guard the elevator shaft by placing the gate intended and used for that purpose in proper position to prevent persons from walking or falling into said shaft.

The cause was tried upon the first and third paragraphs of complaint. The allegations in each paragraph of complaint were substantially the same, except that in the first paragraph the appellee alleged: "That defendant by and through his servants and employees at or immediately prior to said time, wholly unknown to the plaintiff, had negligently and carelessly permitted said elevator platform to be and remain above said first floor and had fastened the said first floor elevator gates up above said floor in such manner that said elevator shaft was then open and wholly unguarded, which condition was unknown to and could not be seen by plaintiff."

In the third paragraph appellee alleged: "That defendant by and through his servants and employees, at or immediately prior to said time, wholly unknown to this plaintiff had negligently and carelessly permitted said elevator platform to be and remain above said first floor and had negligently and carelessly failed to so manipulate and operate the gates of said elevator shaft that said gates were above said first floor and thus said elevator shaft negligently and carelessly permitted to be opened and wholly unguarded at said first floor, which condition was unknown to and could not be seen by plaintiff."

These paragraphs of complaint were answered by a general denial.

On these issues the cause was submitted to the court and jury for trial, resulting in a verdict in favor of appellee, in accordance with which a judgment was rendered. Within due time the appellant filed a motion for a new trial which was overruled, and appellant appeals. The only errors assigned for reversal and not waived are, that the court erred in overruling appellant's motion for judgment on the jury's answers to interrogatories, and that the court erred in overruling appellant's motion for a new trial.

The causes properly alleged for a new trial, discussed in appellant's brief and not waived are, that the verdict of the jury is not sustained by sufficient evidence, that the verdict of the jury is contrary to law, that the damages assessed are excessive, error in the admission and exclusion of the testimony of certain witnesses, error in the admission in evidence of certain exhibits, error of the court in giving to the jury each of certain instructions of its own motion, that the defendant was prevented from having a fair and impartial trial because of accident and surprise which ordinary prudence could not have foreseen and guarded against.

Appellant's independent assignment of error, that the court erred in overruling his motion for judgment on the jury's answers to interrogatories, properly presents that question for our consideration. Cincinnati, etc., Co. v Cregor (1898) 150 Ind. 625, 50 N.E. 760.

The rules by which this court is guided in determining whether the trial court has committed error in overruling a motion for judgment on the answers of a jury to interrogatories submitted to it have been so often stated by our Supreme Court and this court that it is unnecessary to incorporate them in this opinion. We have examined such portions of the record as is permissible under those rules, and, from such examinations, supplemented by the presumptions indulged in favor of the general verdict in such instances, conclude that the court's action in overruling appellant's motion for judgment on the jury's answers to interrogatories non obstante veredicto was not erroneous.

The appellant insists that the verdict of the jury is not sustained by sufficient evidence and that it is contrary to law. These contentions are not sustained by the record.

The jury awarded appellee damages in the sum of $6,000. Appellant says this amount is excessive. We cannot agree with this contention. The evidence upon this phase of the case is not conflicting. A verdict will not be disturbed on appeal on the ground of excessive damages unless it is so excessive as to indicate that the jury acted from prejudice, passion, partiality, or corruption. Cleveland, etc., Co. v. Hadley (1907) 170 Ind. 204, 82 N.E. 1025, 84 N.E. 13, 16 L.R.A. (N.S.) 527, 16 Ann.Cas. 1; Clevenger v. Kern (1935) 100 Ind.App. 581, 197 N.E. 731, and authorities there cited. The record before us does not present a set of facts bringing it within the above rule.

During the trial of this cause, counsel for appellant, while cross-examining a witness called to testify for and on behalf of the appellee, handed the witness a written statement purported to have been signed by him, and the record shows that, at this stage of the cross-examination, questions were asked of the witness to which answers were given as follows:

"Question. It is easier for you to remember things adverse against Mr. Kickels now you are testifying in this lawsuit? Answer. I don't consider I am testifying against Mr. Kickels, Mr. Kickels is not the loser in this case.

"Question. Isn't it a fact that you are angry at Mr. Kickels? Answer. That hasn't a thing to do with Mr. Kickels. If Mr. Kickels does lose. Mr. Kickels is not losing by it."

No objection was made to these answers, nor was any motion made to strike them from the record at that time. Following this cross-examination by counsel for appellant, counsel for appellee on redirect examination of this same witness, referring to the written statement, concerning which the witness had been interrogated on cross-examination, asked him the following question: "Do you remember who asked you to sign that statement, marked plaintiff's exhibit Number One?" to which the witness answered, "As far as I remember, there was a man from the insurance company came down and asked me a few questions and asked me to sign this statement." There was no objection made to the question or answer, nor was there any motion made to strike the answer from the record at that time. At a later period in the trial of the cause and during the time when another witness was testifying, basing the motion upon the above questions and answers, the appellant moved the court to withdraw the submission of the cause from further consideration by the jury, because the appellee by the witness in question injected the subject of insurance into the case by both questions and answers designed for that purpose, and by reason of the statements of the witness on cross-examination. The appellant complains of the action of the trial court in overruling this motion. Whether or not this motion was timely made we do not decide, but, conceding that it was, still an examination of the record fails to uphold appellant's contention. From the questions and answers which we have heretofore set out, it appears that it was upon cross-examination of appellee's witness by appellant that the first statements of which he complains were made in answer to questions propounded to the witness by his counsel, and these answers went unchallenged at that time. It is worthy of note, that these questions and answers were not brought into the record by any act of the appellee or his counsel. The record shows that on cross-examination the witness was interrogated somewhat in detail regarding a written statement which he signed. On redirect examination counsel for appellee propounded the question to which answer was made as above set out of which appellant complains and which went unchallenged at the time. In view of the cross-examination to which the witness had been subjected by appellant concerning the preparation, contents, and signing of the statement, we think it was proper for appellee on redirect examination to propound the question to the witness and that the appellant is not in a position to complain because of the answer made thereto.

As said by the court in Faber v. Reiss Coal Co. (1905) 124 Wis. 554, 102 N.W. 1049, 1052. "The line of demarcation between prejudicial and nonprejudicial remarks of this character cannot be readily drawn. Each case depends largely upon the circumstances by which they are elicited, and their probable effect upon the jurors." The real test is, was there such lack of good faith upon the part of counsel under all the circumstances confronting the court and jury in this particular case as that it cannot reasonably be said that the rights of the appellant were not prejudiced thereby. There is nothing in the record to indicate that either the appellee or his counsel did or persisted in improperly doing any thing or committing any act for the purpose of bringing to the attention of the jury the fact that the appellant was insured, if such was the fact, or that his rights have been prejudiced in any way. O'Connor & Co. v. Gillaspy (1908) 170 Ind. 428, 83 N.E. 738; Clevenger v. Kern, supra, and authorities there cited; Gianini v. Cerini (1918) 100 Wash. 687, 171 P. 1007; Jones v. Sinsheimer (1923) 107 Or. 491, 214 P. 375; Savage v. Hayes Bros. Co. (1908) 142 Ill.App. 316. See, also, 56 A.L.R. p. 1418, note; 74 A.L. R. p. 849, note; 95 A.L.R. p. 388, note.

Appellant complains of the admission in evidence, over his objection, of certain X-ray photographs of injuries...