Atkins v. Bartlett
| Decision Date | 30 March 1926 |
| Docket Number | (No. 5547.) |
| Court | West Virginia Supreme Court |
| Parties | George M. Atkins v. Claude B. Bartlett |
Appeal and Error. After Admonition That Matter of Insurance Should Not be Brought Into Case, Plaintiff's Volunteering Information While Testifying in His Own Behalf That Defendant and Said He Carried Indemnity Insurance, Although Stricken Out by Court, Was Reversible Error.
Where, during the trial of a personal injury case, after an admonition of the court to the effect that matters of insurance should not be brought into the case, the plaintiff, while testifying in his own behalf, volunteers information to the effect that defendant said he carried indemnity insurance, although the same be stricken out by the court, such statement by the plaintiff constitutes reversible error.
(Appeal and Error, 4 C. j. § 2972.)
Error to Circuit Court, Marion County.
Action by George M. Atkins against Claude B. Bartlett for personal injuries. Judgment for the plaintiff, and defendant brings error.
Judgment reversed; verdict set aside; new trial granted. Shaw & Shaw, for plaintiff in error.
William S. Haymond and Frank C. Haymond, for defendant in error.
A judgment was entered by the circuit court of Marion County on a verdict for the plaintiff, in a personal injury case, and the defendant brings error.
The accident complained of occurred on Main Street, in the City of Mannington, a few feet west of the Market Street intersection. Main runs practically east and west, and is intersected at right angles from the south by Market, which extends but a few feet north of said intersection. Plaintiff, on a motorcycle, approached the intersection from the south, made a left turn, intending to continue west on Main Street. Defendant, in a Reo car, approached said intersection from the west, intending to continue on out Main Street. There is a material conflict between the plaintiff and defendant's contentions respecting the responsibility for the collision. Plaintiff states that he was approaching the intersection at about six or seven miles an hour; that he made a wide turn, keeping to the right of the center of the intersection; that he saw defendant's car approaching before he (plaintiff) reached the intersection; that the car was being driven by defendant on the wrong (defendant's left) side of the street; that plaintiff saw that he still had enough room to pass by keeping to his lawful side of the street, but that defendant's car unexpectedly swerved further to the left (plaintiff's right) and struck plaintiff, breaking both bones in his left leg below the knee, and throwing him over into a yard. Defendant claims that he was driving ten or twelve miles an hour; that he was using the middle of the street to pass a Ford which was parked on the right side of the street a short distance west of the intersection; that he saw the plaintiff make the turn; that plaintiff cut to plaintiff's left of the center of the intersection and was headed directly at defendant's car; that defendant endeavored to dodge the plaintiff (who was at that time in the middle of the street by turning his car toward the left curb, and that plaintiff likewise shifted and ran into his car. Plaintiff also stated that the defendant assisted another party in getting him (plaintiff) into a ear, and that he (plaintiff) said, "For God's sake, Claude, what was you1 trying to do?" and that defendant answered, "I don't know, George.
It was my fault." Defendant denies this statement, but states that he said, "I was trying to miss you, George." Both the plaintiff and defendant were supported by the evidence of other witnesses concerning the collision.
The main grounds of error go to (a) the sufficiency of the declaration; (b) bringing before the jury by the plaintiff of the fact that the defendant carried indemnity insurance; and (c) concerning the instructions. These grounds will be considered in their order.
The action here is in trespass. This action lies to recover damages for immediate wrongs, accompanied with force, to the person by menace, assault, battery, wounding, mayhem, or imprisonment. Trespass on the case lay at common law to recover damages for torts not committed with force, where the matter affected was not tangible, or the injury was not immediate, but consequential, or where the interest in the property was only a reversion. 1 Saund, PI. & Ev. 411. By virtue of our statute (Code, Chap. 103, § 8), this action may now be brought in all cases where trespass only could be maintained at common law; so that with us it is immaterial whether the damages be immediate or consequential, the action nevertheless lies (Barnham v. B. & 0. B. Co., 5 W. Va. 10), though the converse is not true. In the instant case, however, the declaration charges a wrongful act resulting in immediate injury, hence it is proper to declare in trespass. 3 Rob. Pr. 421.
It is claimed that the plaintiff purposely brought evidence into the record showing that the defendant carried accident insurance. During the course of the trial Mr. Phillips, one of plaintiff's witnesses, in answering several questions pro pounded by both plaintiff and defendant's attorneys, incidently referred to "Travelers' Insurance Company" and to "Mr. Clayton, an insurance agent." On re-direct examination of this same witness, defendant's counsel entered objection to several questions concerning "Mr. Clayton", which objections were overruled. Mr. Phillips was then asked, "For what company?" (inquiring as to the company for which Mr. Clayton was agent), and answered, "Travelers' is one of them." This last question was objected to, and at this junc- ture the court admonished counsel as follows: And, on further objection, the court ruled that the last-quoted question and answer be stricken from the record. In view of the fact that the evidence objected to did not disclose whether it was the plaintiff or defendant that carried accident insurance, or either of them, it was unprejudieial to either side, and therefore harmless. But the matter of insurance did not end here. The plaintiff was later called to the stand. While testifying regarding an...
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