State v. Ingram

• Decision Date: 30 October 1981
• Docket Number: No. 1081S311,1081S311
• Citation: 427 N.E.2d 444
• Parties: STATE of Indiana, Appellant (Defendant Below), Greenwood Shopping Center, Inc. and Greenwood Realty Corporation, (Defendants Below), Garden City Foods, Inc., (Third-Party Defendant Below), v. Willie INGRAM and John Henry Kirk, Appellees (Plaintiffs Below).
• Court: Indiana Supreme Court

Page 444

427 N.E.2d 444

STATE of Indiana, Appellant (Defendant Below),

Greenwood Shopping Center, Inc. and Greenwood Realty

Corporation, (Defendants Below), Garden City Foods, Inc., (Third-Party Defendant Below), v. Willie INGRAM and John Henry Kirk, Appellees (Plaintiffs Below).

No. 1081S311.

Supreme Court of Indiana.

Oct. 30, 1981.

Linley E. Pearson, Atty. Gen., Robert S. Spear, Asst. Atty. Gen., Walter F. Lockhart, G. Richard Potter, Deputy Attys. Gen., Indianapolis, for appellant.

John J. Lorber, May, Oberfell, Helling, Lorber, Campiti & Konopa, South Bend, for appellees.

GIVAN, Chief Justice.

The appellee, Ingram, obtained a jury verdict of $10,000 against the State of Indiana. The appellee, Kirk, obtained a $3,000 judgment against the State of Indiana. Those judgments were appealed by the State. The Court of Appeals reversed the trial court and remanded the case for a new trial on the basis the admission of the entire loan receipt agreement was error. 399 N.E.2d 808. For reasons hereinafter set out, we vacate the opinion of the Court of Appeals and affirm the trial court.

The record discloses the following facts. Plaintiffs Ingram and Kirk were injured when the automobile Ingram was driving went into a ditch as they were leaving the Greenwood Shopping Center at South Bend. Water accumulated from heavy rainfall that day had obscured the edge of the roadway so that one could not tell where the road ended and where the ditch began. Testimony indicated this condition developed often in this area of the shopping center's parking lot. There was evidence that a clogged drainage pipe leading from the ditch to the other side of the road was a contributing factor in the flooding. Prior to trial, the parties stipulated the State of Indiana was responsible for maintaining adequate drainage through the ditch. The State had been notified of the problem but had apparently taken no action to alleviate the problem.

Appellees sued the State, Greenwood Realty Corporation, Greenwood Shopping Center, Inc., and Garden City Foods, Inc. in a personal injury action. The day before trial plaintiffs entered into a loan receipt agreement with all defendants other than the State. By terms of the agreement, the action was dismissed as to all but the State. Ingram and Kirk were to receive $3,500 from the dismissed defendants, and if a verdict of more than $6,000 was returned against the State of Indiana, there was to be repayment which was limited to $1,500 in any event.

The State responded with an amended answer adding that since plaintiffs had received full compensation for their injuries there should be no recovery. During the course of the trial, the State called Ingram and Kirk to the witness stand and asked them to explain their understanding of the terms of the agreement. In rebuttal, appellees placed the entire agreement in evidence. Some of the language of the agreement was couched in conclusory terms with regard to the negligence and liability of the State.

The State now claims the trial court erred in permitting the details of the loan receipt agreement to be admitted as evidence. The State claims the jury might well be misled into believing the conclusions stated in the agreement were the established facts in the case. The State contends the trial court should have admitted the agreement only after excising the harmful conclusory, self-serving, and prejudicial statements and misstatements of the law contained in the agreement.

The use of loan receipt agreements is permitted. Health and Hospital Corporation of Marion County v. Gaither, (1979) Ind., 397 N.E.2d 589; American Transport Co. v. Central Indiana Ry. Co., (1970) 255 Ind. 319, 264 N.E.2d 64. At the same time it has been held the details of the agreement are admissible only when the agreeing co-defendant remains a party to the lawsuit and the details of the agreement are unknown to the nonagreeing co-defendant. Health and Hospital Corp., supra.

In the case at bar, the agreeing co-defendants were no longer parties to the suit. Thus, the agreement was inadmissible as evidence against the State. Health and Hospital Corp., supra.

However, in the case at bar, the State by its amended answer sought to establish the plaintiffs had been fully compensated and, therefore, had no action against the State. Having chosen this defense, the State was obliged to try to prove the agreement was a full satisfaction of plaintiffs' claims and thus, a general release of all tortfeasors. To this end the State put appellees Ingram and Kirk on the witness stand and questioned them as to their understanding of the terms and affect of the agreement. The State opened the door as to the content of the agreement. This placed the appellees in the position of offering the entire agreement as rebuttal to the State's position. It is well settled that otherwise inadmissible evidence may, in the discretion of the trial court, be admitted to explain or rebut prejudicial evidence which has been introduced by the opposing party. Jackson v. Beard, (1970) 146 Ind.App. 382, 255 N.E.2d 837; Bandy v. Myers, (1967) 141 Ind.App. 220, 227 N.E.2d 183; Lyon v. Aetna Life Ins. Co., (1942) 112 Ind.App. 573, 44 N.E.2d 186. We hold the trial court did not err in permitting appellees to introduce the entire agreement in rebuttal to the State's presentation of a portion thereof.

If we assume, for the sake of argument, that it was improper for the trial court to admit those parts of the agreement containing conclusory and prejudicial statements concerning the State's negligence and its liability for the accident, there was ample independent evidence presented concerning the State's negligence. It was stipulated in pre-trial proceedings that the State owned the ditch and was responsible for maintaining adequate drainage through it. In answer to interrogatories, the State admitted it knew of the tendency of the ditch to accumulate water and conceal the presence of the ditch. The President of Greenwood Realty Corporation had made several complaints to the State about the flooding problems. Erroneously admitted evidence that is merely cumulative in nature and thus contributed nothing to the jury's verdict is not reversible error. Public Service Co. of Indiana v. Levenstein Realty Co., (1964) 246 Ind. 520, 207 N.E.2d 202; Haskett v. Haskett, (1975) 164 Ind.App. 105, 327 N.E.2d 612. We hold that, even if the trial court erred in not excising the alleged harmful parts of the agreement, such error was not reversible.

Since we are vacating the opinion of the Court of Appeals, we now consider those points raised by the appellant which were not covered by the opinion of the Court of Appeals. The State next claims the trial court erred in its refusal to give State's tendered instruction number 5, which reads:

"One who is injured is bound to exercise reasonable care and diligence to avoid loss or to minimize resulting damage. It is encumbant (sic) upon a person who is injured to use such means as are reasonable under the circumstances to avoid or to minimize the damage. If you find from a consideration of all the evidence that the using and fastening of seat belts would have avoided or minimized the resulting damage, then the person wronged cannot recover for any item of damage which could have been avoided, or minimized."

It is the State's contention that an instruction on the injured party's failure to minimize his injuries by buckling a seat belt is justified because there was evidence that showed wearing the seat belts would have reduced plaintiffs' injuries. The State claims the instruction was proper, as coming under the general doctrine, "Defendant may show in mitigation or reduction of damages any facts surrounding the injury complained of which tend to reduce the amount required for just compensation to the plaintiff." Citing 9 I.L.E., Damages, § 83, p. 248.

In Kavanagh v. Butorac, (1966) 140 Ind.App. 139, 221 N.E.2d 824, the defendant advanced the theory that the "avoidable consequences" doctrine applied to a seat belt defense. The court discussed the applicability of the avoidable consequences doctrine to the seat belt defense and stated:

"Although the theory of avoidable consequences has merit, and failure to use the belts may come into action after the proximate cause, we have no authorities which we believe permit us to invoke that doctrine under the evidence here to avoid or lessen the damage. We recognize the possibility of the doctrine applying in some future date and in some matter where the circumstances are clearer than in the instant case in showing that some part of the injury would not have occurred except for the fact that plaintiff failed to avoid the consequence of the tort by not fastening his seat belt." Id. at 149, 221 N.E.2d at 830.

The State contends this case is being decided on the "future date" referred to by the Court of Appeals in Kavanagh, supra. The State claims the seat belt defense should be recognized to lessen a plaintiff's recovery due to his failure to mitigate damages by wearing a seat belt.

Professor Dobbs in Remedies, ch. 3, § 3.7, at 187 (1973) states: "The rule that denies the plaintiff a recovery for harm he might have reasonably avoided is usually referred to as the avoidable consequences rule .... (T)he avoidable consequences defense looks to his post-tort conduct." Professor Prosser on Torts, ch. 11, § 65, at 423 (4th ed. 1971) observes: "The rule of avoidable consequences comes into play after a legal wrong has occurred, but while some damages may still be averted, and bars recovery for such damages." In the Restatement (Second) of Torts § 918 (1971) we find: "Avoidable consequences. (1) Except as stated in Subsection (2), one injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort or expenditure after commission of the tort." In 22 Am.Jur.2d Damages § 31, at 52-53, we find:...