Brody v. Cooper

• Decision Date: 26 March 1924
• Docket Number: No. 5789.,5789.
• Citation: 124 A. 2
• Parties: BRODY v. COOPER.
• Court: Rhode Island Supreme Court

124 A. 2

BRODY

v. COOPER.

No. 5789.

Supreme Court of Rhode Island.

March 26, 1924.

Reargument Denied April 4, 1924.

Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

Action by Solomon J. Brody against C. Frederick Cooper. Verdict for plaintiff granting insufficient relief, and he moved for new trial which was denied, and he excepts. Exceptions sustained, and case remitted for new trial.

Flynn & Mahoney, of Providence, for plaintiff.

Greenough, Easton & Cross, of Providence, for defendant.

STEARNS, J. The action, trespass on the case, is brought to recover damages arising from a collision between an automobile owned and operated by the defendant and an automobile owned and operated by the plaintiff. On the afternoon of June 23, 1921, defendant, while driving his touring car, on reaching the top of an upward grade, turned out to his left in order to pass an automobile which was stopped at the top of the hill. As he passed this automobile he saw, not far distant, the automobile of plaintiff coming up the other side of the hill toward him, on the right hand and proper side of the highway. It had been raining and the surface of the highway was slippery. While defendant was attempting to return to his right side of the highway, his car began to skid, became unmanageable, and crashed into the rear of plaintiff's automobile, and, continuing on, collided with another automobile in the rear of plaintiff's automobile. The negligence of defendant is established. The substantial issue is in regard to the amount of the damages. The jury returned a verdict for the plaintiff for $425 and in answer to special findings submitted to them found the amount of damage to plaintiff's automobile was $425 and that plaintiff had not suffered any personal injury. The trial justice denied the plaintiff's motion for a new trial. The ease is here on plaintiff's bill of exceptions.

The objections to the verdict are that the damages are inadequate and unjust and that it fails to do substantial justice between the parties.

From the evidence it appears that plaintiff's automobile was struck with considerable violence and as a consequence plaintiff's head was cut and he was made nervous. The severity and duration of his injuries are questions of fact in dispute. He required and received the services of a physician for a limited period. The doctor's bill was $50 and $10 additional was paid for medicine. He was a traveling salesman working on a commission, and lost some time before he was fitted to resume his occupation. He was entitled to recover reasonable compensation for these elements of damage. That the plaintiff sought to magnify his personal injuries, and to secure a larger amount of damages than he was justly entitled to, appears to be the fact, and this furnishes a probable explanation of the action of the jury in refusing to give him any compensation for personal injury. However culpable he may be in this respect, he cannot lawfully be denied the right to recover for the damage actually suffered. The award for damage to the automobile is fair. He was also entitled to receive some damages for personal injuries. The jury gave him nothing, and the verdict in this respect was contrary to the evidence and erroneous. The denial of a new trial by the trial justice was erroneous, and the exception thereto is sustained.

Prior to the trial, on defendant's motion, the deposition of a witness, a Mr Steadman, in regard to the damage to the automobile was taken. In the direct examination by the defendant's counsel, the witness testified that his business was that of an appraiser of automobile losses. Thereupon by stipulation of counsel it was agreed that the witness was qualified to give testimony as an expert, relative to damages to automobiles, and the cost of repair thereof.

At the trial defendant closed his case, but did not use the deposition he had procured, for the reason that the estimate of damage made by this witness was larger than that made by plaintiff's witnesses. The plaintiff then claimed the right and was allowed to use the deposition and have the same read to the jury. General Laws 1923, c. 342, § 29, provides that, if the party who took the deposition neglects to produce or to use the deposition, the adverse party may use it. The defendant, in rebuttal, called the plaintiff as his witness and, in response to a question asked by counsel for the defendant, plaintiff testified that he had heard that Steadman was an insurance adjuster. The following question was then asked: "He represented your insurance company in making this examination, didn't he?" The objection of plaintiff was overruled, an execption was taken, and the witness answered that he did. The witness was then asked by defendant's counsel: "Q. And you know that as a result of Mr. Steadman's examination that your insurance company paid you $496 don't you?" The objection to this question was sustained. "Q. I will ask another question for the record. Isn't it a fact that your insurance company to the extent to which they paid you in subrogation rights is to that extent the real party to this suit?" The objection to this question was sustained.

Evidence of plaintiff's insurance was inadmissible, and probably was prejudicial to plaintiff's case. The exception thereto is sustained. Defendant was not surprised by the testimony, but claims that plaintiff by using the deposition thereby made the deponent his witness, and that defendant...