Cumberland Telephone & Telegraph Co. v. Overfield
| Decision Date | 13 December 1907 |
| Citation | 127 Ky. 548,106 S.W. 242 |
| Parties | CUMBERLAND TELEPHONE & TELEGRAPH CO. v. OVERFIELD. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Henderson County.
"To be officially reported."
Personal injury action by Mrs. Frank Overfield against the Cumberland Telephone & Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Yeaman & Yeaman and W. L. Granberry, for appellant.
N Powell Taylor, for appellee.
Appellant Cumberland Telephone & Telegraph Company, owned and operated a telephone line along the Dixon and Henderson road, in Henderson county, Ky. The wire at the place of the accident which will be hereinafter described was attached to the limb of a tree on one side of the road, and to a fence post on the other, and hung so low as not to permit a buggy with a top to pass under it. This condition of the wire was known to appellant for some time prior to the accident to appellee. On December 7, 1905, appellee was driving a gentle horse along the road, when her buggy came in contact with the wire. The horse became frightened, and, after rearing and plunging several times, finally ran away. The wire cut through the bed of the buggy below the seat, and hurled the top of the buggy and appellee to the ground, inflicting upon her certain injuries which will be hereafter discussed.
On April 1, 1906, appellee instituted this action to recover of appellant damages for her injuries. The first trial took place in September, 1906, and resulted in a hung jury. The second trial, which occurred in February, 1907, resulted in a verdict for appellee in the sum of $7,500. A new trial was refused, and the Cumberland Telephone & Telegraph Company is here on appeal with the following assignment of errors: (1) The court erred in permitting the deposition of appellee plaintiff below, to be read to the jury after several witnesses had testified for her in chief. (2) Instruction No. 1 assumes that appellant, defendant below, "negligently permitted" its wire to hang over the road and obstruct public travel thereon. (3) The instruction to find for appellee "for any permanent reduction in her power to earn money" was error, as there was no averment nor proof justifying it. (4) The error in instructing the jury to find "also a reasonable compensation for the time she has lost from her business, if any, by reason thereof," was not cured by erasing those words from the instruction after the conclusion of the arguments on both sides and just before the jury retired. (5) A verdict for $7,500 for personal injury, caused by being thrown from a buggy, with no proof of its permanency, and no evidence nor instruction authorizing punitive damages, is flagrantly excessive.
These alleged errors will be considered in their order.
1. It appears that the deposition of appellee taken on September 1, 1906, was read in evidence over the objection of appellant, after some eight or nine witnesses had previously testified for her in chief. Appellant contends that subsection 3 of section 606 of the Civil Code of Practice prohibits such practice. That provision is as follows: "No person shall testify for himself in chief in an ordinary action after introducing other testimony for himself in chief; nor in an equitable action, after taking other testimony for himself in chief." The manifest object of this provision was to prevent a party to a suit from sitting by and hearing his own witnesses, and then taking the stand in his own behalf and supplying the deficiencies in their testimony. This section of the Code should be interpreted in the light of the purpose for which it was enacted. To testify is to make a solemn declaration on oath or affirmation, for the purpose of establishing or making proof of some fact (Nash v. Hoxie, 59 Wis. 388, 18 N.W. 408), and it signifies the giving of testimony whether orally or in writing (Case v. James, 90 Wis. 320, 63 N.W. 237). In this sense it is used in the above section of the Code, for it provides that a party shall not testify for himself in chief in an equitable action, where testimony is usually taken by deposition, after taking other testimony for himself in chief. We are therefore of the opinion that, so far as this provision of the Code is concerned, a party who testifies by deposition testifies when he is sworn and deposes, and not when the deposition is read. All that is necessary then is for a party to give his deposition before his other witnesses testify in chief, either orally or by deposition. As appellee's deposition was the only one used by her, and as it was taken long before her other witnesses testified for her in chief, it was entirely proper, under the circumstances, to permit it to be read to the jury.
2. Appellant contends that instruction No. 1 assumes that appellant "negligently permitted" its wire to hang over the road and obstruct public travel. That instruction is as follows: "The court instructs you to find for the defendant, unless you shall believe from the evidence that while plaintiff was driving along the public road at the time and place mentioned, and while she was exercising ordinary care for her own safety, if she was so, she, the plaintiff, came in contact with a line of wire belonging to or under the control of the defendant, and which defendant or its agent in charge of said line had negligently permitted, if it had done so, to hang over and near the roadbed, and obstruct the travel thereon at said time, and if you shall also believe from the evidence that the defendant or its agent in charge thereof knew, or by the exercise of ordinary care could have known, of its said condition in time to have repaired or removed the same and prevented the alleged injury, if any, but failed to do so, if it did so fail, and if under these circumstances and by reason thereof the plaintiff was thrown to the ground and injured by such contact with the said wire, then, in that event, you will find for plaintiff, and award her such amount in damages as will fairly and reasonably compensate her on account of her mental and physical suffering endured by her, if any, by reason thereof, also a reasonable compensation for the time she has lost from her business, if any, by reason thereof, together with a reasonable compensation for any permanent reduction in her power to earn money, if any, by reason thereof, not exceeding upon the whole the sum of $15,000, the amount claimed in the petition." Counsel for appellant, after stating that the language is, "If the jury shall believe from the evidence that * * * the plaintiff came in contact with a line of wire * * * which defendant had negligently permitted--if it had done so--to hang over the roadbed and obstruct travel," etc., argue that the only question submitted to the jury was whether the plaintiff came in contact with the wire, and that the question of negligence upon the part of the defendant was assumed, or at least the average juror would so construe the instruction, notwithstanding the parenthetical words, "if it had done so." It will be observed, however, that counsel are mistaken both as to the language used and as to its effect. The proposition in regard to negligence is coupled with the preceding propositions by the copulative conjunction "and," and in such manner as to make it necessary for the jury, in order to find for appellee, to believe, not only the preceding propositions, but this particular proposition itself. The meaning of the language is just the same as if the court had said: "And that the defendant or its agent in charge of said line had negligently permitted said wire, if it had done so, to hang over and near the roadbed," etc. Besides, the language used contained the qualifying clause, "if it had done so," and the effect of this was to exclude from the minds of the jury the idea that negligence was assumed.
3. Counsel for appellant insist that because there was no averment in the petition of any permanent reduction in appellee's power to earn money, and no proof that she was a money earner, it was error to allow compensation on that account. The petition, after alleging that "plaintiff was thrown with great force from said buggy, and hurled with much violence against the said roadway, rendering her unconscious, severely injuring her head and neck, wrenching and spraining her spine and the tendons and ligaments thereof, bruising, spraining and laming her right leg and right arm, cutting and bruising painfully her face, and causing her great internal injury, and physical and nervous shock," further alleges that "she is permanently disabled and crippled, and her health permanently impaired as a result of her said injuries." It is insisted by counsel for appellant that the above allegations are not sufficient to authorize a recovery for permanent reduction in power to earn money, but that the petition itself should have specifically alleged a permanent reduction in power to earn...
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