Debra Gardner and Gregory Gardner
We reverse, due to error in the admission of the evidence that defendant Lake Eliza carried no applicable liability insurance.
The Gardners brought their action for negligence per se based upon the theory that Lake Eliza had violated the Indiana statute
When presenting the defense, Lake Eliza's attorney, Winfield Houran, questioned Tom Fitzgerald, the operator of Lake Eliza, regarding instructions that Fitzgerald allegedly gave Lake Eliza's employees. During the course of the questioning, Lake Eliza's attorney elicited the fact that Lake Eliza carried no liability insurance to cover a judgment in the case. The Gardners' attorney, R. Cordell Funk, twice objected and moved for a mistrial. The trial court overruled the objections and allowed the evidence. The record shows the complete exchange as follows:
The oft-cited rule in Indiana has been stated as follows:
Miller v. Alvey (1965), 246 Ind. 560, 207 N.E.2d 633, 637. An exception to this general rule exists if the proof of liability insurance is revealed incidental to proof of competent evidence which is relevant to the issues involved in the trial. Pickett v. Kolb (1968), 250 Ind. 449, 237 N.E.2d 105. In this case the testimony regarding defendant's lack of insurance had no relevance to the issues at trial. The precise reasons Fitzgerald may have had for instructing his employees were not related to the issue of whether a sale had, in fact, been made.
Since the trial court allowed inadmissible evidence to be considered by the jury, we must determine whether the error so prejudiced the proceedings as to require reversal.
Under Indiana law, a deliberate attempt by counsel to inject insurance into a case constitutes reversible error. Lamb v. York (1969), 252 Ind. 252, 247 N.E.2d 197. The transcript shows that Lake Eliza's counsel initially did not intentionally elicit testimony as to Lake Eliza's lack of insurance.
Normally, when evidence of insurance (or the lack of it) is interjected into a trial, the trial court may withdraw the case from the jury or admonish the jury. Herman v. Ferrell (1971), 150 Ind.App. 384, 276 N.E.2d 858. In the alternative, a party may tender an instruction admonishing the jury. Id. However, in the present case, the Gardners have shown a deliberate attempt by Lake Eliza to influence the jury. In addition, their counsel twice objected and moved for a mistrial, which motions were denied. Kirk v. Harris (1977), Ind. App., 364 N.E.2d 145. The trial court should have granted the motion for a mistrial.
We reverse the trial court's judgment and remand for a new trial.
GARRARD, P.J., and HOFFMAN, J., concur.
In Indiana, the question of whether Gregory Gardner can recover from Lake Eliza under such facts has not been decided [Indiana's appellate courts have published only two opinions dealing with recovery in so-called "dramshop" cases. The cases are: Brattain v. Herron (1974), 159 Ind.App. 663, 309 N.E.2d 150; and Elder v. Fisher (1966), 247 Ind. 598, 217 N.E.2d 847]. However, many other state courts have held that one who actively procures or encourages the intoxication of another cannot recover against the supplier of the liquor for injuries resulting from that intoxication. See Annot., 26 A.L.R.3d 1112 (1969). Some courts have even barred recovery by someone such as Debra Gardner, who apparently joined in drinking intoxicating liquors with Steve Barrett and was later injured in the car accident. Id.
These questions will become relevant at retrial.