Daniel v. Patrick

• Decision Date: 18 March 1960
• Citation: 333 S.W.2d 504
• Parties: Roy DANIEL et al., Appellants, v. Doke PATRICK, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 504

333 S.W.2d 504

Roy DANIEL et al., Appellants, v. Doke PATRICK, Appellee.

Court of Appeals of Kentucky.

March 18, 1960.

W. A. Johnson, J. K. Wells, Paintsville, for appellants.

G. C. Perry, III., W. B. Hazelrigg, Paintsville, for appellee.

PALMORE, Judge.

This is a personal injury action involving a pedestrian, a motorcycle and an automobile. The pedestrian, Patrick, recovered $15,000 in damages separately allocated by the jury in the amounts of $5,000 each against Tom Roy Daniel (driver of the motorcycle), Preston (driver of the car), and Roy Daniel (owner of the car), and the further sum of $600 for hospital expenses awarded against the three defendants jointly and severally. Liability of Roy Daniel, the father of Tom Roy Daniel, was based on the family purpose doctrine. We are affirming the judgment against Tom Roy Daniel and Preston but reversing as to Roy Daniel for the reason that the evidence of family purpose was insufficient to support a verdict against him.

In August of 1956 Tom Roy Daniel, a member of the U. S. Navy, was on furlough and visiting his father, Roy Daniel, at or near Tutor Key in Johnson County. On the afternoon of August 13 he had his father's automobile and met up with Preston, a friend, who owned a motorcycle. Both boys were minors. Tom Roy wanted to ride the motorcycle, so he turned the car over to Preston and they started from Paintsville toward Tutor Key, Tom Roy driving the motorcycle and Preston some 30 to 50 feet directly behind him in the car. On the way Tom Roy lost control of the motorcycle and ran onto the shoulder to his right, striking Patrick, who was walking along the road some 7 or 8 feet off the blacktop and in the same direction as the boys were traveling. The shoulder of the road was wide on the right side of the road at this point but, according to Patrick, was too narrow on the left side for safe walking. There is no suggestion of negligence on the part of Patrick, and the evidence of Tom Roy Daniel's negligence is conclusive.

The problems in this case arise from Patrick's testimony that immediately after he was knocked flat by the motorcycle the automobile ran over his left arm and shoulder. In addition to the question thus introduced as to the responsibility, if any, of the owner of the car, the appellants, who deny that Patrick was struck by the car at all, contend that it would have been physically impossible for him to see the car after being knocked down by the motorcycle. Evidently the motorcycle diverged so far off the blacktop as to pass to the right of Patrick, so that when struck he was thrown toward the highway, falling on his belly and the left side of his face and lying at an angle to the road, head toward the direction in which he had been traveling and feet angling outward away from the road. In this position his head and arm still were not on the paved surface. He contends that the motorcycle ran over his legs and the car immediately ran over his left arm and shoulder, and that he was them both.

Conceding for the sake of argument that Patrick's face was turned in the opposite direction the instant before he allegedly was struck by the car, he was still able to move his head. Moreover, he recalls a few moments of consciousness after the double impact, and, however unlikely, it is certainly within the realm of possibility that he saw the car as it passed over him or immediately thereafter. Coney Island Co. v. Brown, 1942, 290 Ky. 750, 162 S.W.2d 785, cited by appellants, was a case in which the plaintiff's theory of an accident was proved physically impossible. In Lambert v. Miller's Adm'r, 1939, 277 Ky. 64, 125 S.W.2d 1019, the testimony of two witnesses was at variance with facts admitted by the party for whom they were endeavoring to testify, and was so contradictory as to be obviously untrue. Those cases, we think, are clearly distinguishable from this one. Since the physical circumstances do not manifest his story to be impossible, Patrick's categorical statement that he saw and felt the car strike him was sufficient to present a jury question.

During the questioning of their own medical witness toward the end of the trial the appellants discovered in his hospital's file a letter from the United Mine Workers of America, to whom a medical bill had been submitted, acknowledging receipt of an accident report signed by Patrick in which he is said to have reported that he had been struck 'by either a motorcycle or an automobile' and did not know 'who was responsible for the accident.' The trial court very properly overruled appellant's offer to introduce this letter as evidence, whereupon appellants moved, on the ground of surprise, that the swearing of the jury be set aside and the case continued in order to avail them an opportunity to procure the accident report itself. The motion was overruled.

As the appellants concede, the trial court is possessed of wide discretion in respect to declaring a mistrial on account of surprise. 53 Am.Jur. 679 (Trial, Sec. 967). At least three of appellants' witnesses testified that they had heard Patrick say at the hospital that he did not know what hit him. Therefore, the accident report would have been cumulative. Moreover, the alleged statement that he did not know who was responsible for the accident would not necessarily mean that he did not know whether either or both of the vehicles had struck him. In Louisville & N. R. Co. v. Bell, 1909, 134 Ky. 139, 119 S.W. 782, a suit to recover for damages sustained in several fires, the plaintiff testified as to specific dates which he had not stated in his petition and had been unable to furnish when called upon to do so in response to a motion, and it was held that the defendant was entitled to a continuance. After obtaining the information it was the plaintiff's duty to make a timely disclosure, and his failure to do so put the defendant at a disadvantage. There is, however, no such situation in the instant case. On the contrary, if there was any fault in the failure to get the information before the trial, it was on the appellants themselves, whose witness had access to the hospital file. Far from its being an abuse of discretion for the court to overrule the motion, we are inclined to think it would have been an abuse to do otherwise.

The third instruction given the jury followed the form set forth in Sec. 144, Stanley's Instructions to Juries, and authorized recovery against Roy Daniel, the owner, if the car was being operated by Preston 'in the presence of and under the control of Tom Roy Daniel, with the consent or approbation of the defendant, Roy Daniel.' The fourth instruction, making no mention of Roy Daniel, specified the damages recoverable against either Preston or Tom Roy Daniel, or against both of them, and further directed a separate assessment thereof as between them in the event the jury should base its...