Lawson v. Cole

• Decision Date: 04 November 1953
• Docket Number: No. 18375,18375
• Parties: LAWSON v. COLE.
• Court: Indiana Appellate Court

Page 134

115 N.E.2d 134

124 Ind.App. 89

LAWSON v. COLE.

No. 18375.

Appellate Court of Indiana, in Banc.

Nov. 4, 1953.

J. Edwin Smith, Gary, for appellant.

Owen W. Crumpacker, Edmund A. Schroer, Crumpacker & Schroer, Hammond, Frederick C. Crumpacker, Jr., Valparaiso, for appellee.

BOWEN, Judge.

This is an appeal from a judgment in an action for personal injuries sustained in an automobile accident. Issues were formed in the court below on appellee's complaint in two paragraphs, the first alleging wilful and wanton negligence and the second alleging negligence, and the answer of appellant which denied appellee's claims of wilful and wanton negligence and negligence, and that the injuries were caused by appellant's misconduct. The issues were decided against the appellant and the jury returned a verdict for appellee in the sum of $12,500. The court entered judgment upon the verdict and this appeal followed.

Error asserted in this appeal, which is supported by propositions and authorities, is that the court erred in overruling appellant's motion for a new trial. The grounds of the motion for a new trial not waived are that the attorney for appellee was guilty of misconduct in the trial of the cause, that the verdict of the jury is not sustained by sufficient evidence and is contrary to law, and that the court erred in the giving and refusing to give of certain instructions. The assignments of error based on the alleged misconduct of counsel are:

'That on cross-examination of the plaintiff Luther Cole by Mr. Smith when the plaintiff was asked the question: 'When is the last time you talked to Mr. Lawson about the accident.' Mr. Fred Crumpacker, plaintiff's attorney, without cause interjected the question of insurance and negotiations between the parties towards a settlement as shown by the following remarks which were highly prejudicial to the defendant and prevented him from having a fair trial:

"Mr. Fred Crumpacker: I am going to object, if your Honor please to bring out these facts. I think there are rules of law that any negotiations between the parties prior to the law suit are not admissible and I don't believe it is proper to go into the details of the matters that were discussed.

"Mr. Smith: If the court please, entirely proper to show---- "Mr. Crumpacker: If you open that subject which is not within the pleadings, let's go into it all the way. Your insurance company----

"Mr. Smith: If the court please, I would like to make a motion in the absence of the jury.

"Mr. Crumpacker: I am willing to have the motion in the presence of the jury. There is an attempt here to show the preliminary negotiations between the parties relative to the filing of this suit, and if you are going into that, let's go into it all the way.

"Mr. Smith: I object to Mr. Crumpacker making a speech.

"Mr. Crumpacker: You want to put in part of it but you object to the rest. I have no objection to the jury being excused or staying in.

"The Court: You may make your motion.

"Mr. Smith: I move that the jury be discharged for the reason of the remarks of Mr. Crumpacker just made which are highly improper, irrelevant and certainly unprovoked and prejudicial.

"Mr. Crumpacker: I will have to object to that. An attempt by Mr. Smith to go into part of the settlement negotiations, allegations which are not in the issues of this cause and if he goes into part he should go into all of them. I object to that motion. Highly Improper."

The question as to whether error has been committed by reason of alleged misconduct of counsel is a matter which must be considered by us in the light of whether a trial judge has abused his discretion in the management of a trial with, due regard to the rights of the parties. Our courts have laid down the procedure which must be followed in order to reserve any question for review on appeal relating to misconduct of counsel. The steps in this procedure as set forth in Ramseyer, Ex'r, v. Dennis, 1918, 187 Ind. 420, 116 N.E. 417, 119 N.E. 716, and followed by the Supreme Court in Gamble v. Lewis, 1949, 227 Ind. 455, 85 N.E.2d 629, and by this court in Richmond Insurance Co. of New York v. Boetticher, 1938, 105 Ind.App. 558, 12 N.E.2d 1005, and Powell v. Ellis, 1952, 122 Ind.App. 700, 105 N.E.2d 348, are:

'(1) To promptly interpose and state their objection, if reasonably required, to the objectionable language or argument, and request the court to so instruct the jury as to counteract any harmful effect of such language or argument, and if granted, and such instructions were not sufficient to cure the error, follow such action by a motion to have the submission set aside; (2) to promptly object to the improper language or argument of counsel, and move to set aside the submission, stating reasons why the harm done could not be cured by any action the court might take in the matter.' [187 Ind. 420, 119 N.E. 720.]

This court has specifically laid down the rule in Richmond Insurance Co. of New York v. Boetticher, supra, that it is insufficient to present misconduct of counsel for review on appeal by merely moving to set aside submission. The moving party must also state reasons therefor and show the trial court that the harm cannot be cured by some action of the trial court. We consider the use of the words 'your insurance company' by counsel for appellee to have been improper. However, the record in the instant case does not show that the appellant asked the court to have the jury admonished, nor does the motion to withdraw submission set forth any reasons or any showing that the harm done could not be cured by any action that the court might take in the matter. The motion merely alleged that the remarks were highly improper, irrelevant, unprovoked and prejudicial. The reason for the rule that it is insufficient to merely move for withdrawal of submission without showing the trial court that the harm could not be cured by some action of the trial court, is based upon sound reason, in that each case of alleged misconduct presents a different problem based upon the peculiar facts and circumstances of that particular case, and since the question involved is whether the court has abused its discretion as to the particular circumstances involved, the trial court should be given an opportunity to correct any alleged harm if possible. In order for a court of appeal to determine whether such misconduct could not be cured in the course of the trial by an adminishment of the court to the jury, it is necessary for the facts and reasons thereof to be set forth in...