Rohrkaste v. City of Terre Haute, 4-1183A369

Docket NºNo. 4-1183A369
Citation470 N.E.2d 738
Case DateNovember 14, 1984
CourtCourt of Appeals of Indiana

Page 738

470 N.E.2d 738
Kris V. ROHRKASTE, Plaintiff-Appellant,
CITY OF TERRE HAUTE, Defendant-Appellee.
No. 4-1183A369.
Court of Appeals of Indiana,
Third District.
Nov. 14, 1984.

Page 740

Malcolm H. Aukerman, Newport, Stephen L. Williams, Mann, Chaney, Johnson, Goodwin & Williams, Terre Haute, for plaintiff-appellant.

Raymond H. Modesitt, John Christopher Wall, Patrick, Wilkinson, Goeller & Modesitt, Terre Haute, for defendant-appellee.


Kris V. Rohrkaste brought suit against the City of Terre Haute to recover damages he allegedly suffered as the result of a collision between the automobile Rohrkaste was driving and an ambulance owned by the City. The collision occurred as Rohrkaste proceeded east on Fort Harrison Road in Terre Haute through a green light at the intersection of Fort Harrison Road and 13th Street. In the intersection the ambulance, heading south on 13th Street through a red light, struck Rohrkaste's automobile. The evidence most favorable to the verdict showed that the ambulance's siren and lights were on when the accident occurred. Rohrkaste alleged that the negligence of the ambulance driver was the proximate cause of the accident and his resulting personal injury and property damage.

This cause was tried by a jury beginning May 16, 1983. On May 18, 1983, the jury returned a verdict in favor of the City and the court entered judgment on that verdict. Rohrkaste now appeals, raising the following issues for our review:

1. Whether the court erred by granting the City's motion in limine which sought to prohibit Rohrkaste from inquiring into prospective jurors' interest in any insurance company.

2. Whether the court erred by giving certain instructions and refusing others, as follows:

A. Refusing a "missing witness" instruction tendered by Rohrkaste;

B. Refusing an instruction tendered by Rohrkaste stating that a driver does not have an absolute duty to hear the siren or see the flashing lights of an ambulance;

C. Refusing an instruction tendered by Rohrkaste stating that an ambulance driver has no absolute right to proceed through a red light;

D. Refusing to explain to the jury the relevant statutes relating to emergency vehicles;

E. Modifying an instruction tendered by Rohrkaste as to the City's burden to prove the ambulance was responding to an emergency when the accident occurred;

F. Refusing an instruction tendered by Rohrkaste covering contributory negligence and proximate cause;

G. Giving an instruction tendered by the City defining the ambulance as an "authorized emergency vehicle" under the law of Indiana.

I. Motion in limine

Before trial, the court granted the City's motion in limine which sought to prohibit Rohrkaste from questioning jurors during voir dire as to their interest in an insurance company. Rohrkaste contends the court committed reversible error by granting the motion over Rohrkaste's written objection. He suggests such questioning, had it been allowed, "would have disclosed the bias, interest or prejudice of jurors created by any interest in or relationship to

Page 741

any insurance company, and, in particular, the company which insured the City." Brief at 44.

We agree with Rohrkaste that he was entitled to a jury composed of impartial and unbiased persons. Brinkman v. Hovermale (1938), 106 Ind.App. 70, 13 N.E.2d 885. To seek that end, Rohrkaste had the right to make a reasonable inquiry into any financial interest a juror might have had in the outcome of the trial which might have skewed the juror's otherwise impartial approach to the evidence. M. O'Conner & Co. v. Gillaspy (1908), 170 Ind. 428, 83 N.E. 738; Goff v. Kokomo Brass Works (1909), 43 Ind.App. 642, 88 N.E. 312; Rust v. Watson (1966), 141 Ind.App. 59, 215 N.E.2d 42.

However, Rohrkaste's burden of establishing reversible error goes beyond eliciting our agreement with broad statements of the law. A mere showing that the court improperly limited the scope of the voir dire examination does not establish entitlement to reversal without a further showing that Rohrkaste entered a proper objection or made an offer to prove. Cf. Rieth-Riley Construction Company, Inc. v. McCarrell (1975), 163 Ind.App. 613, 325 N.E.2d 844 (opposing party's conduct of voir dire examination was cause for reversal but complaining party failed to make proper, contemporaneous objection). Rohrkaste asks us to view his written response to the City's motion in limine as sufficient objection to preserve his contention of error. Case law clearly requires that we hold otherwise.

While the trial court's authority to grant motions in limine emanates from its inherent power to exclude evidence, Burrus v. Silhavy (1973), 155 Ind.App. 558, 293 N.E.2d 794, 799, its usefulness need not be restricted to evidentiary matters. See Moore v. State (1982), Ind., 440 N.E.2d 1092, 1093 and Ohio Valley Gas, Inc. v. Blackburn (1983), Ind.App., 445 N.E.2d 1378, 1381 (in both cases, the trial court granted a motion in limine prohibiting reference to certain matters during voir dire ). A court may grant such a motion any time there is a need to protect the jury from possibly objectionable questions and statements the prejudicial effect of which might not be curable by the court's admonishment of the jury. Burrus v. Silhavy, supra 293 N.E.2d at 796-797.

The grant of a motion in limine is nothing more than a preliminary order requiring counsel to alert the court during trial to any proposed reference to a matter covered by the granted motion so that the court can make its final ruling on the propriety of the line of questioning. In Lagenour v. State (1978), 268 Ind. 441, 376 N.E.2d 475, the Supreme Court explained that the purpose of the motion in limine is:

"... to prevent the proponent of potentially prejudicial matter from displaying it to the jury, making statements about it before the jury, or presenting the matter to a jury in any manner until the trial court has ruled upon its admissibility in the context of the trial itself. Baldwin v. Inter City Contractors Service, Inc. (1973), 156 Ind.App. 497, 297 N.E.2d 831."

376 N.E.2d at 481.

As a preliminary ruling, the grant of a motion in limine is not itself reviewable on appeal. Likewise, error cannot be predicated on an objection to the grant of the motion. To preserve error, a party, out of the hearing of the jury, must propose to ask a certain question at trial and have the court prohibit it. Failure to offer the excluded material constitutes waiver of the issue. Webb v. State (1983), Ind., 453 N.E.2d 180; Smith v. State (1981), Ind., 426 N.E.2d 364; McCraney v. State (1981), Ind., 425 N.E.2d 151, and cases cited therein.

The rationale for requiring an offer of proof to preserve error is particularly evident here. We do not presume that a trial court erred. English Coal Company, Inc. v. Durcholz (1981), Ind.App., 422 N.E.2d 302. The appellant has the burden of showing an erroneous and prejudicial

Page 742

ruling of the trial court. TeWalt v. TeWalt (1981), Ind.App., 421 N.E.2d 415. Without a showing of actual harm, we have no basis for reversing a trial court's judgment. Id.

Here Rohrkaste asks us to reverse because the trial court prohibited him from asking prospective jurors about their interest in an insurance company. We agree with Rohrkaste to the extent he argues the trial court unequivocally had stated it would not allow such questioning during voir dire. The court sustained the City's motion in limine directly before the voir dire examination began. We doubt the trial judge would have changed his mind and allowed Rohrkaste to pursue a line of questioning he had prohibited minutes earlier.

Yet, no matter how fruitless an attempt to ask the previously prohibited questions might have seemed, without such an attempt we are left with no means to measure the harm potentially suffered by Rohrkaste. While by memorandum Rohrkaste opposed the City's motion, it was never apparent he had any particular desire or need to ask the questions the City sought to exclude by its motion. If during the questioning of the venire plaintiff's counsel felt the need to inquire into the area prohibited by the order in limine, he should have moved for permission and, if denied, should have made an offer. For example, counsel could have inquired whether there had been any changes in the answers given to the questionnaires, and pursued the results of that inquiry, moving for relief if necessary.

On appeal, Rohrkaste concentrates on his right to inquire into the potential bias of the prospective jurors, citing, inter alia, M. O'Conner & Co. v. Gillaspy (1907), 170 Ind. 428, 83 N.E. 738. In Gillaspy, the Supreme Court held that the trial court did not err by allowing the plaintiff:

"... to ask each juror upon his voir dire whether he or any member of his family was in any way interested as stock holder, officer or agent of the Aetna Insurance Company, or of any insurance company engaged in the business of insuring against accidents."

83 N.E. at 740. In Goff v. Kokomo Brass Works (1909), 43 Ind.App. 642, 88 N.E. 312, also cited by Rohrkaste, the judgment of the trial court was reversed for not permitting the plaintiff to make such an inquiry.

The trial court substantially complied with the spirit of Gillaspy and Goff here. One of the questions on the jury questionnaire asked each prospective juror:

"Are you or any member of your immediate family employed by or have any interest in or own any stock of any insurance company?"

All but one of the people selected to serve on the jury answered "no" to the question. Although, as Rohrkaste points out, "[T]he questionnaire itself is not given under oath or under the pains of perjury," all the jurors affirmed that their answers were true.

In any event, the fact that Rohrkaste had access to these answers leaves us to wonder whether he was not satisfied by them or whether he simply wished to imply to the jury that the city was insured. An...

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