Pickett v. Kolb, 568S77

• Citation: 237 N.E.2d 105,250 Ind. 449
• Decision Date: 23 May 1968
• Docket Number: No. 568S77,568S77
• Parties: Lula M. PICKETT, Appellant, v. Marion KOLB, Glenn Ray Heldt, Appellees.
• Court: Supreme Court of Indiana

Page 105

237 N.E.2d 105

250 Ind. 449

Lula M. PICKETT, Appellant, v. Marion KOLB, Glenn Ray Heldt, Appellees.

No. 568S77.

Supreme Court of Indiana.

May 23, 1968.

John D. Clouse, Ross E. Myers, Benjamin E. Buente, Jr., Evansville, for appellant.

Isadore J. Fine, Joe S. Hatfield, Charles H. Sparrenberger, Engene P. Fine, Evansville, Edward E. Meyer, Evansville, of Counsel, for appellees.

ARTERBURN, Judge.

This cause comes to us upon petition to transfer from the Appellate Court under Rule 2--23, the Appellate Court opinion appearing in 231 N.E.2d 856.

The cause of action arises out of an accident resulting from the operation of an automobile striking a tractor on a highway. The trial was had by jury and a verdict returned for the defendants-appellees and judgment entered accordingly. Error assigned by the appellant-plaintiff is the overruling of the motion for a new trial. One of the specifications therein was that the court erred in sustaining an objection defendants made to a question propounded by the plaintiff-appellant during the cross-examination of a witness called on behalf of the defendants. The ruling the judge made excluded the answer of the witness. On direct examination the witness was asked whether or not he had made an inspection of the brakes of the automobile on behalf of the defendants. His answer was 'yes'. On cross-examination, appellant's counsel asked: did you do this inspection for the defendant; did you ever talk to her about it; did you ever point out to her you thought she should have the brakes repaired? In each instance the answer was 'no'.

Finally the appellant asked the question:

'Q. And who paid you to do this inspection?

'MR. HATFIELD: To which we object. Employment was made on behalf of the defendant; the inspection was made on behalf of the defendants.

'COURT: We will have a short recess. Jury will leave the Court room.

Following the recess, when court was reconvened, the court stated:

'COURT: The court is going to make this ruling. He is going to instruct counsel not to ask any questions in this cause which would elicit from the witness that there is insurance involved in this case.'

Following this statement, the attorney for appellant, Mr. Clouse, asked:

'The court sustains the objections?'

'The court will sustain the objection to the last question.'

Appellees contend that all the jury was entitled to know was that the employment of this witness was on 'behalf' of the defendant, and that it would have been improper for the witness to have given the name of any insurance company that paid him for his services.

It has long been the law in all jurisdictions of which we are aware that a witness may properly be cross-examined with respect to his interest in the litigation in question. He may be cross-examined with reference to his motives, his feelings, friendly or unfriendly towards the parties or other witnesses involved, his employment by either of the parties or some third party, and the contractual relationship with reference to his interest in the litigation and any financial considerations that might have influenced him. 30 I.L.E. Witnesses § 214.

The appellant cites Swanson v. Slagal, Administratrix (1937), 212 Ind. 394, 8 N.E.2d 993 in support of his position. The facts are very similar in this case and we think are in point. On cross-examination the witness was asked: 'Whom do your pay checks come from.' The court held this was proper cross-examination.

It is well settled that evidence of whether or not a defendant carries liability insurance is not admissible or relevant to the case in and of itself, and such evidence normally is prejudicial. Martin v. Lilly (1919), 188 Ind. 139, 121 N.E. 443.

In Miller v. Alvey (1965), 246 Ind. 560, 207 N.E.2d 633, we held that an instruction which intimated that the defendant carried no insurance was also improper, since it tended to arouse sympathy for the defendant because he personally would have to pay if a verdict was rendered against him. However, there are issues which arise and occasions when evidence is admissible, regardless of the fact that it may incidentally show the existence or nonexistence of insurance.

A very good example of this situation is the case of City of Terre Haute v. Deckard (1962), 243 Ind. 289, 295, 183 N.E.2d 815, 817. In that case the City of Terre Haute was sued for damages resulting from the operation of a motor vehicle operated by a police officer. A statute provided a limitation of liability of $10,000.00 if the city carried liability insurance. This Court said, upon an appeal in ...