Kirk v. Harris

• Citation: 173 Ind.App. 445,364 N.E.2d 145
• Decision Date: 29 June 1977
• Docket Number: No. 3-675A117,3-675A117
• Parties: William D. KIRK, Plaintiff-Appellant, v. Roy L. HARRIS, Defendant-Appellee.
• Court: Court of Appeals of Indiana

Page 145

364 N.E.2d 145

173 Ind.App. 445

William D. KIRK, Plaintiff-Appellant, v. Roy L. HARRIS, Defendant-Appellee.

No. 3-675A117.

Court of Appeals of Indiana, Third District.

June 29, 1977.

Kenneth D. Reed, Abrahamson, Reed & Tanasijevich, Hammond, for plaintiff-appellant.

John P. McQuillan, Spangler, Jennings, Spangler & Dougherty, Gary, for defendant-appellee.

STATON, Presiding Judge.

William D. Kirk (Kirk) appeals from the jury's assessment of damages. Kirk had been granted a default judgment against Roy L. Harris (Harris) by the trial court, and the damage issue was submitted by the court to the jury. The jury assessed damages in the amount of $2500, and, on appeal, Kirk presents to us four alleged errors:

(1) The court erred in submitting the damage issue to the jury.

(2) The verdict reflects an inadequate assessment of damages.

(3) The court erred in giving Defendant's Tendered Instruction Number 4.

(4) The court erred in overruling Kirk's objections to Harris' counsel's remarks during final argument.

We find no reversible error, and we affirm.

I. Jury's Assessment of Damages

Kirk's claim arose out of an accident which occurred on May 4, 1972, in which the car in which he was riding was rear-ended by a vehicle owned and operated by Harris. Harris failed to appear when summoned, and Kirk filed an Affidavit and Application for Default Judgment. The court entered judgment by default and ordered:

" . . . The Court holds in reserve the issue as to the amount of damages to be awarded for a hearing to be set at the convenience of the Court and upon request of plaintiffs."

Harris appeared by counsel and demanded a trial by jury on the issue of damages. Kirk objected to Harris' demand, and the objection was overruled by the court. The jury trial resulted in the jury assessing damages in the amount of $2500.

Kirk complains on appeal that the issue of damages should never have been submitted to a jury since a default judgment was entered, and it was stipulated by the parties that Harris was liable. Kirk asserts that the damages should have been assessed by the court. Harris rejoins by pointing out that in Kirk's original pleading Kirk had requested a jury trial; not only was no harm done by submitting the damage issue to the jury, since originally the entire cause would have been decided by a jury, but it would have been improper under the trial rules for the right to trial by jury to have been withdrawn without Harris' permission. ¹

Indiana Trial Rule 55(B) provides in pertinent part:

" . . . If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearing or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required." (Emphasis added).

A jury trial on the issue of damages is a factual hearing, and, as such, the right to a jury trial is as of right upon demand by "any party." Indiana Trial Rule 38. Indiana Trial Rule 39(A)(2) provides:

"If a party demands a jury trial on any issue upon which he is entitled to jury trial as of right in the case, the court shall grant it on that issue."

Indiana case law is in accord. Bash v. Van Osdol (1881), 75 Ind. 186; Briggs v. Sneghan (1873), 45 Ind. 14. The action of the trial court in submitting the issue of damages to the jury was proper.

II. Inadequacy of Verdict

Kirk alleges that the amount of damages assessed by the jury was inadequate. To determine if an award is inadequate, the same rules are applied as if the verdict were being challenged as excessive. Rondinelli v. Bowden (1973), 155 Ind.App. 582, 293 N.E.2d 812. Reversal upon appeal is not justified if the amount of damages awarded is within the scope of the evidence before the court. Old Town Development Company v. Langford (1976), Ind.App., 349 N.E.2d 744. For a court to reverse for inadequacy the award must show the jury was motivated by "prejudice, passion, partiality or corruption, or considered some improper element." Wynder v. Lonergan (1972), 153 Ind.App. 92, 101, 286 N.E.2d 413, 418; Chicago South Shore & South Bend Railroad v. Brown (1974), Ind.App., 320 N.E.2d 809.

"For a formula then, our common law sets only the general guidelines for compensating the victim, each in its own way to be considered by the trier of facts and weighed to determine what the total compensation will be. Because of this personal nature of each case and since the decision is unique to the particular set of facts our courts have said the trier of facts is to be given 'sound discretion,' and 'liberal discretion' where damages cannot be defined and calculated with mathematical certainty or by any exact standard. . . . " (Citations omitted). Kavanagh v. Butorac (1966), 140 Ind.App. 139, 145, 221 N.E.2d 824, 828.

Kirk is asking us to reweigh the evidence. This we will not do. The evidence relating to Kirk's impaired earning ability and lost wages was conflicting. We may look on appeal only to that evidence and the reasonable inferences therefrom which support the verdict. Vesey, Inc. v. Hillman China Co. (1972), 151 Ind.App. 388, 280 N.E.2d 88.

III. Disability Instruction

Harris tendered an instruction on the issue of permanent disability:

"Instruction No. 4

The plaintiffs have the burden of proof on any claim for permanent disability. You are instructed that before you would be justified in awarding any plaintiff damages for permanent disability, it must appear from a fair preponderance of the evidence that permanent disability is reasonably certain to follow from the injury complained of and proved by the evidence. The fact that an injury may possibly result in permanent disability is not sufficient to warrant the assessment of damages for a permanent disability." (Emphasis added).

Kirk objected upon the ground that the instruction was not a correct statement of the law, invaded the province of the jury, and was repetitious. The instruction was properly given.

The jury heard conflicting testimony on the issue of permanent disability. In Ohio and Mississippi Railway Company v. Cosby (1886), 107 Ind. 32, 35-36, 7 N.E. 373, 375, the Indiana Supreme Court approved a very similar instruction. The same doctrine was approved in Ft. Wayne Transit, Inc. v. Shomo (1957), 127 Ind.App. 542, 551-552, 143 N.E.2d 431, 436. Such an instruction is completely consonant with our view that the jury must be able to base its award of damages on evidence of probative value rather than being left to speculate and conjecture. Scott v. Nabours (1973), 156 Ind.App. 317, 296 N.E.2d 438. The evidence most favorable to Kirk indicated only that Kirk "might be" permanently disabled. Kirk himself testified he could do everything at the time of trial that he could do before the accident. And, Kirk continued his employment in which he installed 125 pound sheet rock ceilings by holding the ceiling on his head. In light of the evidence presented, the giving of the instruction was not error.

IV.

Final Argument

Both parties stipulated before trial that

" . . . Counsl (sic) will make no mention during the voir dire examination, during final argument, or at any time before the jury, regarding the presence of liability insurance or the lack of liability...