Richmond Gas Corp. v. Reeves, 671A114
| Decision Date | 31 October 1973 |
| Docket Number | No. 671A114,671A114 |
| Citation | 158 Ind.App. 338,302 N.E.2d 795 |
| Parties | RICHMOND GAS CORPORATION, Appellant (Defendant Below), v. Barbara M. REEVES and Robert L. Reinke, Co-Administrators of the Estate of Blaine Scott Reeves, Deceased, Appellees (Plaintiffs Below). HEATH SURVEY CONSULTANTS, INC., et al., Appellees (Defendants Below), v. ALCAN COMPANY, INC., et al., Appellees (Third Party Defendants Below). |
| Court | Indiana Appellate Court |
R. Stanley Lawton, Bruce A. Polizotto, Indianapolis, for appellant; Ice, Miller, Donadio & Ryan, Indianapolis, Himelick, Himelick & Smith, Connersville, of counsel.
Aribert L. Young, Howard J. DeTrude, Jr., C. Warren Holland, Indianapolis, for appellees; Kightlinger, Young, Gray & DeTrude, Indianapolis, of counsel.
This appeal arises after plaintiffs-appellees recovered a jury verdict of $250,000 against defendant-appellant Richmond Gas Corporation in an action for the wrongful death of decedent Blaine Scott Reeves, husband of plaintiff Barbara M. Reeves.
The action stemmed from a violent series of explosions which occurred in downtown Richmond, Indiana, on April 6, 1968, killing 41 persons.
Richmond Gas timely filed its Motion to Correct Errors, which was overruled, and raises the following contentions of error for review in this appeal:
1. Whether the trial court erred in excluding photographs of a gas explosion in Terre Haute, Indiana, which were offered by appellant to demonstrate the difference in appearance between a gas and a gunpowder explosion.
2. Whether the trial court erred in refusing to grant a mistrial following alleged improper remarks by plaintiff's counsel.
3. Whether the court erred in excluding evidence concerning the circumstances of employment of one of appellant's expert witnesses.
4. Whether the court erred in admitting testimony of a witness called by defendant Heath Survey Consultants, Inc., concerning a conversation between the witness and a deceased employee of appellant.
5. Whether the court erred in permitting defendant Marting Arms, Inc. to read into evidence a portion of a deposition which contained certain opinions based upon hearsay and information not in evidence.
6. Whether the court erred in refusing to withdraw from the jury the issue of negligence charging appellant with failure to protect its pipes from rusting in soil conductive to rusting.
7. Whether the court erred in instructing the jury that if they found the explosion to be a gas explosion, plaintiff was not required to prove the source of ignition, while refusing to instruct the jury that if they found it to be a gunpowder explosion, source of ignition did not have to be proved.
8. Whether the court erred in refusing to give appellant's tendered instruction concerning its standard of care.
9. Whether the court erred in refusing to instruct the jury that a damage award to plaintiffs would not be subject to Federal or State income tax.
10. Whether the jury was erroneously instructed on the measure of damages.
11. Whether the verdict of the jury was excessive.
At trial, conflicting evidence was presented as to the number, nature, and causes of the explosion or explosions. Richmond Gas argued that only one explosion occurred, that being at the Marting Arms Store where the decedent was killed, and that the force of that explosion destroyed Virginia's Beauty Shop and Vigran's. Reeves, on the other hand, presented evidence that more than one explosion occurred. However, testimony was conflicting as to where the first of the explosions took place--at the Marting Arms Store, next door at Virginia's Beauty Shop, or across the street at Vigran's.
The key issue at trial was whether the exposion in question was a gas explosion as Reeves argued, or a gunpowder explosion, as contended by Richmond Gas. Also in contention was the issue of whether there was both a gas and a gunpowder explosion. This raised questions of the sequence and relative magnitudes of the explosions.
Extensive testimony was presented in support of each party's theories. Experts called by Reeves testified that in their opinion the explosions were caused by leaking gas, while experts called by Richmond Gas testified that in their opinion the explosion was caused by gunpowder.
On the voluminous and conflicting evidence presented at trial, the jury found for the plaintiff Reeves and against the defendant Richmond Gas Corporation. The jury further returned a finding in favor of defendants, Heath Survey Consultants, Inc. and Marting Arms, Inc.
Richmond Gas first argues that the trial court erred in excluding photographs of damage to a building following a gas explosion in Terre Haute, Indiana.
The photographs, marked as defense exhibits B and C, were presented to Reeves' expert witness Rolla Harger during cross-examination by Richmond Gas. Reeves objectd on the grounds that their admission would raise questions of conditions and circumstances at a different time and place and would thereby lead to confusion. The objection was sustained, and the photographs were excluded.
Later in the trial, Richmond Gas handed exhibits B and C to expert witness Henry Morton as he testified concerning the phenomenon of 1 exhibit G--80, a picture of the Richmond explosion, Richmond Gas offered exhibit B and C into evidence. Reeves objected on the grounds that the exhibits had been previously ruled inadmissible. The objection was sustained, and the jury was instructed to disregard Morton's testimony concerning the exhibits.
Richmond Gas argues that exclusion of the photographs during cross-examination of Dr. Harger deprived them of the right to test the credibility of his testimony. They further maintain that the later exclusion of the exhibits hampered them in their explanation of the phenomenon of 'brisance'.
The admission and rejection of photographs rests largely within the discretion of the trial court, and its decision will not be overturned unless an abuse of discretion is shown. Central Indiana Rwy. Co. v. Anderson Banking Co. (1968), 143 Ind.App. 396, 240 N.E.2d 840; Evansville School Corp. v. Price (1965), 138 Ind.App. 268, 208 N.E.2d 689. In our opinion, Richmond Gas has failed to show an abuse of discretion in the trial court's refusal to admit exhibits B and C into evidence.
Photographs should be admitted only where they will assist and enlighten the jury. They are not proper where they may serve as a source of confusion or prejudice. Evansville School Corp. v. Price, supra. The admission of photographs of other explosions occurring under differing and unique conditions and circumstances might well confuse and mislead a jury.
In the case at bar the court exercised sound discretion in refusing to admit the exhibits. Had he ruled otherwise the door would have been opened to the admission of innumerable photographs of other explosions, each requiring proof of the attendant circumstances. The end result of such a voluminous presentation could well mislead the jury by distracting them from the task at hand.
It is also well settled that there is no abuse of discretion in refusing to admit demonstrative evidence where the jury is sufficiently informed by other evidence of that which is attempted to be portrayed. Margevich v. Chicago & N.W. Ry. Co. (1953), 1 Ill.App.2d 162, 116 N.E.2d 914. The phenomenon of 'brisance' was sufficiently explained by expert testimony, and the theory could have been applied to the numerous photographs of the Richmond explosion which were admitted into evidence.
Richmond Gas next contends that the trial court erred in refusing to grant a mistrial following certain improper remarks by plaintiff's counsel. The remarks grew out of a disagreement concerning the admissibility of defendant's exhibits B and C when Richmond Gas attempted to introduce the pictures for the second time during direct examination of expert witness Henry Morton. The remarks appear in context as follows:
'Q. And does that--those pictures (Exhibits B & C), when combined with the Defendant's Exhibit G--80, illustrate the difference in brissance (sic) in different explosions?
A. Yes, sir. They do.
Q. We now offer into evidence Defendant's Exhibits 'B' and 'C'.
HON. ARIBERT YOUNG, COUNSEL FOR PLAINTIFF:
Well now, wait a minute, I though (sic) they were in evidence. You pulled one on us here.
HON. R. STANLEY LAWTON: COUNSEL FOR RICHMOND GAS:
We didn't pull one at all.
HON. ARIBERT YOUNG, COUNSEL FOR PLAINTIFF:
Oh, no, for heaven's sake--I thought these were in evidence.
No, they are not. These are photographs . . ..
Now, if the Court please, I object to the . . ..
All right, I'm sorry. But I have had him do this before, this is not evidence in this case.
Well, Your Honor, let me make my objection. We object to these photographs, they put them in under subterfuge.
HON. R. STANLEY LAWTON, COUNSEL FOR RICHMOND GAS:
No, sir . . .
HON. ARIBERT YOUNG, COUNSEL FOR PLAINTIFF:
This is not--these are not photographs that relate to this explosion in any way . . . The Court ruled on this before and--for him to do this--I ask that Mr. Lawton be reprimanded--in front of the Jury--this Court had ruled that these were not admissible, and . . .
HON. R. STANLEY LAWTON, COUNSEL FOR RICHMOND GAS:
This is on a different basis entirely, and if we're going to have an argument, I'd like to have the Jury--I would like to...
To continue reading
Request your trial
-
Davidson v. Prince, 900461-CA
...645, 650 (6th Cir.1976); Canavin v. Pacific S.W. Airlines, 148 Cal.App.3d 512, 196 Cal.Rptr. 82, 100 (1983); Richmond Gas. Corp. v. Reeves, 158 Ind.App. 338, 302 N.E.2d 795 (1973); Kirk v. Ford Motor Co., 147 Mich.App. 337, 383 N.W.2d 193, 198 (1985); Scallon v. Hooper, 293 S.E.2d 843, 845,......
-
Varilek v. Mitchell Engineering Co.
...626, 662, 151 Cal.Rptr. 399, 419; Bould v. Touchette (Fla.1977), 349 So.2d 1181, 1185-86; Richmond Gas Corp. v. Reeves (1973), 158 Ind.App. 338, 369, 302 N.E.2d 795, 815-16; Ossenfort v. Associated Milk Producers, Inc. (Minn.1977), 254 N.W.2d 672, 684; Cords v. Anderson (1977), 80 Wis.2d 52......
-
American Nat. Bank & Trust Co. of Chicago v. Thompson
...cash value of future damages. (Cords v. Anderson (1977), 80 Wis.2d 525, 550-52, 259 N.W.2d 672, 683-84; Richmond Gas Corp. v. Reeves (1973), 158 Ind.App. 338, 369, 302 N.E.2d 795, 815-16; Ossenfort v. Associated Milk Producers, Inc. (1977, Minn.), 254 N.W.2d 672, 684; Bould v. Touchette (19......
-
Durham ex rel. Estate of Wade v. U-Haul International
...355, 359 (Ind.Ct.App.1986) (loss of care, love, and affection are compensable as pecuniary damages); Richmond Gas Corp. v. Reeves, 158 Ind.App. 338, 369-70, 302 N.E.2d 795, 815-16 (1973) (concluding in wrongful death case that jury may consider intangible losses such as love and As these ca......