Raisor v. Kelly

Decision Date30 May 1972
Docket NumberNo. 1,No. 971A180,971A180,1
Citation282 N.E.2d 871,152 Ind.App. 198
PartiesHerbert RAISOR, Harriett Raisor, Plaintiffs-Appellants, v. Herbert KELLY, Corrilla Kelly, Defendants-Appellees
CourtIndiana Appellate Court

Douglas R. Denmure, Hartell F. Denmure, Aurora, for plaintiff-appellants.

Charles W. Lehner, Lawrenceburg, Edward J. Utz, Cincinnati, for defendants-appellees.

LYBROOK, Judge.

Plaintiffs-appellants appeal from the decision of the trial court granting defendants-appellees' Motion to Correct Errors which ordered a new trial after plaintiffs had recovered damages in the sums of $1,000.00 and $39,000.00 respectively, by jury verdicts, from the defendant, Corrilla Kelly.

During final argument plaintiffs' counsel made reference to certain hospital bills which had been excluded from the evidence by the court. Defendants immediately moved for a mistrial which the trial judge indicated he felt compelled to grant but did not grant at that time. At the invitation of the court, counsel conferred with the Judge in private. Defendants contend that an agreement was reached between the parties and the court which provided that the case would go to the jury and that defendants could have a new trial if the verdicts returned were felt by the defendants to be unreasonable. Plaintiffs deny that they agreed to this. In an entry made granting the defendants' Motion to Correct Errors the court referred to the 'arrangement' and found that 'said agreement should be carried forth and a new trial granted herein'.

Final argument of counsel was not recorded and neither was the alleged agreement made a part of the record. There is some indication that the trial judge admonished the jury to disregard the remark of plaintiffs' counsel but the record is also silent on this point.

Appellants filed a Motion to Correct the Judgment Entry pursuant to TR. 60(A), Indiana Rules of Procedure, IC 1971, 34--5--1--1, by reciting the fact that the jury was admonished to disregard counsel's remark. This motion was not granted by the court. In oral argument before this court, however, counsel for all the parties, agreed that the trial judge did in fact give the jury the standard and usual admonition to disregard the remark.

Appellants obtained and filed separate affidavits from each member of the jury panel which recited that after counsel's reference to hospital bills not in evidence, the court admonished the jurors to disregard any reference to the same. Each affidavit further stated that the jurors never saw the bills nor had any knowledge as to their monetary amounts; that they followed the court's admonition and did not consider the hospital bills not in evidence in any way in arriving at the verdicts.

The defendants, in an affidavit accompanying their Motion to Correct Errors, stated that plaintiffs' counsel's remark to the jury was 'there are other hospital bills that you can consider in this case'. Plaintiff, however, in an affidavit opposing the Motion to Correct Errors, characterizes the remark as follows: 'There are other hospital bills not in evidence and there will continue to be other hospital bills as long as she lives.' Plaintiffs denied that their counsel made the remark as phrased by the defendants.

Plaintiffs filed two Consents to Reduce Verdicts wherein they offered to reduce the verdict for Herbert Raisor from $1,000.00 to $500.00 and the verdict in favor of Harriett Raisor from $39,000.00 to the sum of $29,500.00. Defendants did not accept nor respond to these offers.

During the trial while appellant, Herbert Raisor, was on the stand, he was handed four separate hospital bills from Dearborn County Hospital which were marked 'Plaintiff's Exhibits 8, 9, 10 and 11'. Exhibit 8 was identified as a bill in connection with Harriett Raisor's injuries and the total charge was $2,573.45. Defendants objected to Exhibit No. 9 for the reason that the bill was for acute diverticulitis and cerebral arteriosclerosis. Defendants likewise objected to Exhibit 10 for the reason that the bill was for acute diverticulitis. The court sustained the objections to Exhibits 9 and 10. Exhibit 11 was likewise objected to for the reason that it was for cerebral arteriosclerosis and the objection was sustained by the court.

These same exhibits were offered again at the conclusion of the direct examination of Dr. Frable, the treating physician. At the conclusion of Dr. Frable's testimony the transcript recites the following:

'BY THE COURT: THE COURT WILL ADMIT PLAINTIFF EXHIBITS NO. 8 AND NO. 11. AND WILL SUSTAIN PLAINTIFFS EXHIBITS NO. 9 and NO. 10.' (Sic)

Dr. Frable testified that Mrs. Raisor was his patient during the dates shown on all of the above numbered exhibits and that all of the various hospital confinements, as shown thereon, were related to Mrs. Raisor's injuries sustained on June 24, 1969. He also testified that the injury caused aggravation of the diverticulitis and cerebral arteriosclerosis and that Mrs. Raisor was still under his care.

From the above it would appear that the excluded Exhibits No. 9 and 10 related to the same conditions covered in Exhibits 8 and 11 and further that said Exhibits 9 and 10 were in the middle period of the hospitalization of plaintiff.

It should be noted that Mrs. Raisor received her injuries when an automobile rolled and passed over her body. In the opinion of her surgeon, Dr. Frable, the diverticulitis was aggravated by the trauma and she was operated upon and 12 feet of her intestines was removed.

Since Exhibits 9 and 10 covered the second period of hospitalization during which plaintiff's surgery occurred and since Exhibit 11, which was admitted, covered the third period of hospitalization which was for complications arising out of the second period, it would appear that all these exhibits have been tied together and had a reasonable relevancy to plaintiff's injuries.

The reported cases are legion where counsel has gone outside the record in argument, followed by the trial court sustaining objections to the remark and admonishing the jury to disregard the same. Typical of the decisions holding that this is sufficient to cure the objection, are: Gerking v. Johnson (1942), 220 Ind. 501, 44 N.E.2d 90 and Home Tel. Co. v. Weir (1913), 53 Ind.App. 466, 101 N.E. 1020.

We are of the opinion that counsel's remark in the case at bar was inadvertent and was cured by the court's admonition. Technically, counsel had no right to refer to bills not in evidence, yet this certainly does not appear to be a deliberate statement calculated to either inflame or mislead the jury.

It is doubtful, to say the least, if appellees laid the necessary groundwork for the withdrawal of submission. In the language of a leading case, Lawson v. Cole (1953), 124 Ind.App. 89, 115 N.E.2d 134:

'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.'

'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...

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6 cases
  • Merry v. State
    • United States
    • Indiana Appellate Court
    • 7 Octubre 1975
    ...defendant did not object to the admonishments. Therefore, Merry may not raise the issue for the first time on appeal. Raisor v. Kelly (1972), Ind.App., 282 N.E.2d 871. During each adjournment during trial, the court is required by statute to make sure '. . . (A)fter being impaneled, and at ......
  • Frankfort v. Owens
    • United States
    • Indiana Appellate Court
    • 22 Diciembre 1976
    ...steps necessary to preserve a point of error founded upon trial counsel's misconduct were stated in the case of Raisor v. Kelly (1972), 152 Ind.App. 198, 282 N.E.2d 871, 873 (transfer denied) as '. . . In the language of a leading case, Lawson v. Cole (1953), 124 Ind.App. 89, 115 N.E.2d 134......
  • Richmond Gas Corp. v. Reeves, 671A114
    • United States
    • Indiana Appellate Court
    • 31 Octubre 1973
    ...fail for the reason that the record reveals that Richmond Gas failed to lay the proper groundwork for its motion. In Raisor v. Kelly (1972), Ind.App., 282 N.E.2d 871, this court quoted as follows from the leading case Lawson v. Cole (1953), 124 Ind.App. 89, 115 N.E.2d 134: "Our courts have ......
  • Dayton Walther Corp. v. Caldwell, 480S103
    • United States
    • Indiana Supreme Court
    • 17 Abril 1980
    ...v. Crow, (1964) 245 Ind. 276, 198 N.E.2d 222; Richmond Gas Corp. v. Reeves, (1973) 158 Ind.App. 338, 302 N.E.2d 795; Raisor v. Kelly, (1972) 152 Ind.App. 198, 282 N.E.2d 871; City of Shelbyville v. Morton, (1965) 138 Ind.App. 460, 208 N.E.2d 705; David Johnson Company v. Basile, (1964) 136 ......
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