King v. Ransburg

• Decision Date: 04 March 1942
• Docket Number: 16731.
• Parties: KING et al. v. RANSBURG.
• Court: Indiana Appellate Court

39 N.E.2d 822

111 Ind.App. 523

KING et al. v. RANSBURG.

No. 16731.

Appellate Court of Indiana, in Banc.

March 4, 1942

[Copyrighted Material Omitted]

White Wright & Boleman and Geo. C. Forrey, III, all of Indianapolis, and Rogers & Smith, of Lebanon, for appellants.

Fenton Steers, Beasley & Klee, of Indianapolis, for Philip Carey Co.

Seth Ward and Richard Smith, both of Indianapolis, and Scifres & Hollingsworth, of Lebanon, for appellee.

FLANAGAN Judge.

This is an action for damages for personal injuries brought by Ralph Herbert Ransburg, appellee, against Mason King and the Philip Carey Company, appellants, the action growing out of an accident which occurred when the appellant, Mason King, was driving his automobile south on Central Avenue and approaching 32nd Street in Indianapolis, Indiana, and the appellee was walking from east to west across said Central Avenue at 32nd Street. The complaint alleges that appellant King negligently collided with appellee, and that at the time of the collision appellant King was an agent and servant of appellant, the Philip Carey Company, and on an errand of business for said corporation.

Trial by jury resulted in a verdict for appellee against appellants in the sum of $20,000 and judgment was entered on the verdict.

Errors relied upon for reversal are, (1) overruling appellants' motion to strike out parts of appellee's complaint; (2) overruling appellants' motion to make the complaint more specific; and (3) overruling appellants' separate motions for a new trial.

The grounds of the separate motions for a new trial not waived are, (1) misconduct of appellee's counsel; (2) insufficiency of the evidence; (3) excessiveness of the verdict; (4) refusal to give appellants' tendered instructions numbered 2, 6, 10 and 11; (5) giving of its own motion the court's instruction numbered 16; and (6) giving appellee's tendered instructions numbered 4, 7 and 16.

The complaint alleges that appellant King operated his automobile "in a negligent, reckless and unlawful manner as follows:

"1. In negligently and recklessly failing to keep a proper and sufficient look-out for this plaintiff.

2. In negligently failing to give this plaintiff any signal or warning of his approach.

3. In negligently, recklessly and unlawfully operating said automobile to the left of a trackless trolley owned and operated by Indianapolis Railways, Inc., while said trolley was stopped at said intersection.

4. In negligently and recklessly failing to stop said automobile when he saw that a collision with plaintiff was imminent.

5. In negligently, recklessly and unlawfully operating said automobile at said time and place at the high and dangerous rate of speed of thirty-five (35) to forty (40) miles per hour."

The motion to strike parts of the complaint sought to eliminate the words "unlawful" and "unlawfully" from the above quoted allegations and from other parts of the complaint where they were similarly used.

The complaint alleged among other items of damage that the plaintiff "was forced to lose -- weeks from his regular vocation." The motion to make more specific sought to have the blank filled in with the number of weeks alleged to have been lost.

Motions to strike out parts of pleadings, and motions to make more specific are usually addressed to the sound discretion of the trial court and that court's rulings on such motions will not be disturbed unless the trial court is shown to have abused its discretion and that the complaining party has been harmed. Meyer v. Garvin, Ind.App. 1941, 37 N.E.2d 291; Lindley v. Sink, Ind.Sup. 1940, 30 N.E.2d 456; Baltimore & Ohio S.W. R. Co. v. Beach, 1930, 99 Ind.App. 672, 168 N.E. 204; American Carloading Corp. v. Gary Trust & Savings Bank, 1940, 216 Ind. 649, 25 N. E.2d 777.

From an examination of the record we are unable to discover wherein appellants were harmed by the ruling on either the motion to strike or the motion to make more specific and therefore must conclude that the trial court did not in said rulings abuse its discretion.

Appellants charge that the following happenings during trial constituted misconduct on the part of appellee's counsel prejudicial to the rights of appellants:

1. During the examination of the jury on their voir dire appellee's counsel asked a prospective juror whether the questioned juror was connected with any insurance company and if he adjusted claims for insurance companies and whether or not he was connected with or employed by the General Insurance Company. He was further asked if he knew one Fred Smith who was a claim agent for the General Accident Insurance Company. Upon the juror replying that he was not sure, appellee's counsel stepped out of the court room and returned with Fred Smith and then said, "This is Mr. Smith. I have stated that Mr. Smith is claim agent for General Accident Insurance Company."

2. During the cross-examination of one Harry S. Gillis, witness called by appellants, appellee's counsel asked the witness the question, "Did you see him (referring to appellee) walling down the street with a joggle motion," and before the witness answered, appellee's counsel stepped in front of the jury and walked with a limping and shuffling gait. Further in the same cross-examination the witness was asked by plaintiff's counsel to step down and demonstrate the manner in which he had seen appellee walking.

In explanation of the charged acts of misconduct during the cross-examination of the witness Gillis, it should be related that the witness had testified that appellee was running across the street just prior to the accident; that appellee's counsel was contending that appellee was unable to run because he was crippled as a result of infantile paralysis when he was young, that one leg was shorter than the other and therefore from a distance he lent the appearance of running when he was in fact walking. The court instructed the jury to disregard counsel's demonstration of walking and did not permit the witness Gillis to make any demonstration.

It is to be remembered that attorneys are officers of the court wherein they are engaged in representing their clients and their conduct is at all times subject to the supervision of that court. The judge of that court sits in the presence of the happenings there. He observes what occurs and its effect upon the jurors. Courts of review do not have such advantage. Isolated scenes tend to take on an importance entirely out of proportion to their place in the whole drama when first seen by a stranger, recorded in the cold print of the review record away from the warm atmosphere of the trial arena. So we have the sound rule that the decision of the trial court on matters of alleged misconduct of counsel will not be disturbed unless it appears that the trial court has abused its discretion and the complaining party has been harmed thereby. Meeker, Guardian, v. Decker, 1937, 104 Ind.App. 594, 10 N.E.2d 416; Richmond Ins. Co., etc., v. Boetticher, 1938, 105 Ind.App. 558, 12 N.E.2d 1005; Jay v. Holman, 1939, 106 Ind.App. 413, 20 N.E. 2d 656; Pennsylvania Ice & Coal Co. v. Elischer, 1939, 106 Ind.App. 613, 21 N.E.2d 436.

In regard to the charges of misconduct during the cross-examination of the witness Gillis, the trial court witnessed the demonstration, instructed the jury to disregard it and was satisfied that any harm which had been done was thereby remedied. We cannot say that the court abused its discretion in refusing to go farther and withdraw submission of the cause from the jury or grant a new trial because of such alleged misconduct.

In the examination of the jury on its voir dire appellee was entitled to inquire of the prospective jurors as to their relationship with insurance companies. Inland Steel Co. v. Gillespie, 1914, 181 Ind. 633, 104 N.E. 76; Beyer v. Safron, 1926, 84 Ind.App. 512, 151 N.E. 620; Kraning v. Bloxson, 1937, 103 Ind.App. 660, 5 N.E.2d 649, 9 N.E.2d 107.

Ordinarily it would not seem proper to inquire as to acquaintance with a certain person, naming him as claim agent for a designated insurance company. However there are circumstances in the case at bar which must be given consideration. It is contended by appellee that Fred Smith, claim agent for General Accident Insurance Company, had brought some of appellants' witnesses to the place of trial and had been active in and out of the courtroom and at the counsel table in the direction of the litigation, including the examination of the jury on the voir dire. The record does not disclose any activity of the claim agent in the court room but it does show that he brought some of the witnesses to the place of trial and that he was close at hand during the voir dire examination.

While it is perfectly proper for a party to have one of its insurer's claim agents so assist counsel, nevertheless when one not of counsel and a stranger to the record actively participates in conduct of the litigation in such manner opposing counsel is justified in discovering from prospective jurors whether they are acquainted with him. The extent of the inquiry must of course be limited by the necessity of the situation so created, but if during a good faith inquiry it incidentally appears that such person is an insurance company's claim agent we do not see wherein the party that created the situation can complain.

In the instant case the juror being examined was himself in the insurance business and likely to know others similarly engaged. The name Fred Smith was not an uncommon one and the juror would not be able to make the identification from the name alone. Fred Smith was not in the court room at the time. We cannot say that identifying him as the claim agent of the General Accident Insurance Company...