Hellmueller Baking Co. v. Risen

• Decision Date: 28 May 1943
• Citation: 174 S.W.2d 134,295 Ky. 273
• Parties: HELLMUELLER BAKING CO. v. RISEN.
• Court: Kentucky Court of Appeals

174 S.W.2d 134

295 Ky. 273

HELLMUELLER BAKING CO. v. RISEN.

Court of Appeals of Kentucky

May 28, 1943

Rehearing Denied October 22, 1943.

Appeal from Jefferson Circuit Court, Jefferson County, Common Pleas Branch, Fourth Division; Eugene Hubbard, Judge.

Action by Lenzy Risen against Hellmueller Baking Company for injuries suffered by plaintiff in an automobile collision. Verdict and judgment for plaintiff, and defendant appeals.

Judgment affirmed.

Woodward Dawson & Hobson, of Louisville, for appellant.

Ogden Galphin, Tarrant & Street, of Louisville, for appellee.

THOMAS Justice.

On December 24, 1940, the appellee and plaintiff below, Lenzy Risen, was riding south in a United States Army truck on 32nd Street in the city of Louisville, while engaged with others in the distribution of mail. A short distance behind that truck was one approaching from the same direction owned by appellant and defendant below, Hellmueller Baking Company and which was engaged at the time in distributing defendant's product to its customers. The mail distributing truck left the place where it was stopped on the west side of 32nd Street, intending to turn left some 150 feet ahead into an alley entering that street from the east. As it made the turn defendant's truck was approaching from behind at the rate of 30 or 35 miles per hour, according to plaintiff's proof; whilst defendant's proof shows that its speed at that time did not exceed 15 miles per hour. After the mail truck had turned--or while it was turning--to enter the alley, defendant's truck collided with it on its left side immediately opposite the seat in which plaintiff was sitting. The force was such as to jar and shake those occupying that seat to such an extent that plaintiff claims it strained his muscles around his neck and shoulder and compressed his 5th vertebra against the 6th and next lower one, and to some extent dislocated his 5th one, whereby he was caused to suffer great pain and anguish and to incur expense and to be otherwise severely damaged.

He filed this action in the Jefferson circuit court against appellee and defendant below, charging that his injuries were the result of its negligence in the operation of its delivery truck, and placed his damages at $5,200. The answer was a denial, coupled with a plea of contributory negligence, which was denied by reply, thus forming the issues. A trial was had before a jury which returned a verdict in favor of plaintiff for the sum of $2,500. Defendant's motion for a new trial was overruled, and from the judgment pronounced on the verdict it prosecutes this appeal. While one of the grounds contained in the motion for a new trial is that "The verdict is flagrantly against the weight of the evidence," yet no contention is made in briefs filed in this court that the verdict finding defendant guilty of negligence, and (by implication) that plaintiff was not guilty of contributory negligence, from which it will be assumed that this ground is abandoned insofar as it relates to the sufficiency of the evidence to sustain the verdict on each of those issues. It, therefore, becomes unnecessary to rehearse the evidence relating to them, but which we find to be sufficient to sustain and support counsels' abandonment of them. The only grounds argued in this court as prejudicial errors authorizing a reversal of the judgment are (1) that the court erred in rejecting offered testimony by defendant; (2) error in instruction No. 5 given to the jury, and (3) that the verdict is excessive--each of which will be determined in the order named.

1. The rejected testimony complained of was that offered by defendant, by which it proposed to prove that plaintiff under some arrangement with the Federal Government--of which he at the time was an employee--paid him during his disablement resulting from his complained of injuries weekly payments amounting in the aggregate to $496. The court rejected that testimony, and it is that ruling alone of which counsel complains in support of ground (1) urged for a reversal. Counsel readily admit that the testimony complained of was not admissible for the purpose of reducing the amount of recovery against defendant, since that question has been so determined by this court in numerous cases, with none to the contrary. See Book v. City of Henderson, 176 Ky. 785, 197 S.W. 449; Berry v. Irwin, 224 Ky. 565, 6 S.W.2d 705; Hardy v. Muensch, 195 Ky. 398, 242 S.W. 586, and the late case of Rogers v. Price, 290 Ky. 153, 160 S.W.2d 371.

However counsel argue and contend that the offered testimony was competent for the purpose of establishing malingering on the part of plaintiff for the purpose of drawing the governmental compensation, and that it tended to prove that fact, which conclusion, under the testimony in the record, was only a surmised or a suspicioned one, since the proof showed that the Broughton collar, made and prescribed by plaintiff's physician, was worn by him for a much longer time than was necessary in order to continue the Federal compensation that he was receiving. But the evidence clearly shows that the wearing of it was more or less uncomfortable and he did not wear it for any longer period than that expressly prescribed by his physicians. In such circumstances it is pure speculation that its wearing was for any malingering purpose or design on the part of plaintiff, since he insisted on removing it earlier than his physician would allow. The cases of McGill v. Commonwealth, 216 Ky. 430, 287 S.W.2d 949,...