Duval v. Diamondstone, 55-73
| Decision Date | 05 February 1974 |
| Docket Number | No. 55-73,55-73 |
| Citation | 132 Vt. 176,315 A.2d 498 |
| Parties | Louis DUVAL v. Peter I. DIAMONDSTONE. |
| Court | Vermont Supreme Court |
Sullivan & McCaffrey, Rutland, for plaintiff.
Theriault & Joslin, Montpelier, for defendant.
Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.
The issues being the same, the above entitled case, as well as No. 56-73, Catherine Duval v. Peter I. Diamondstone, were combined for hearing. The actions arose out of an accident in the City of Rutland on October 21, 1970, in which the automobile driven by the defendant, Diamondstone, collided with the rear end of a vehicle owned and driven by the plaintiff, Louis Duval, damaging the car of the plaintiff, and resulting in injuries to the wife of the plaintiff, Catherine Duval, as well as to several minor children of the couple. Liability was admitted and the case was tried on the question of damages only in the Rutland County Court. Jury verdicts were returned in the amount of $10,000 for Louis Duval and $12,000 for Catherine Duval, as well as verdicts for the injured minor children. No appeal was taken from the verdicts rendered for the minor children of the parties, but appeals were duly taken from the verdicts rendered for both Louis and Catherine Duval.
Upon appeal, the defendant has briefed four grounds of claimed error before this Court.
The first such claimed error is to the admission of evidence by the trial court. The first such evidence objected to was the testimony of Police Officer Hall. Officer Hall, who investigated the accident, described the physical aspects of the accident scene, damage to the vehicles as well as to the condition of Catherine Duval, whom he described as being hysterical, in a state of shock, and apparently suffering great pain.
Also objected to was the testimony of a Mrs. DuBray, whose house was damaged as a result of the accident, and who testified to the force of the collision and the physical and emotional condition of Mrs. Duval immediately following the accident. Objection was also made to the testimony of a Mr. Hack, who was driving his truck along the same road at the time of the accident and testified as to the force of the collision.
The injuries the plaintiff claimed to have suffered as a result of the accident were severe pain in the back and neck, as well as an aggravation of an existing nervous condition, and her inability to resume her every-day duties about her house since the time of the collision. She was confined for a week in Rutland Hospital as a result of the injuries to her back and neck and contusions of her leg. She received further treatments from Dr. Layden, her attending physician after leaving the hospital and was fitted to a surgical corset. Dr. Layden testified that her injuries were not of a permanent nature and that she did suffer from a previous nervous condition. Both her husband and daughter testified as to her inability to perform the household functions that she had previously exercised and that she had become much more nervous and emotional since the happening of the accident.
An examination of the testimony objected to does not disclose that it was of a prejudicial nature such as to inflame the passions of a jury. Much of such evidence related to the injuries received by the plaintiff, Catherine Duval, as well as to her mental and nervous condition directly after the collision. The force of the collision was relevant to the issue being tried as to the injuries received by the plaintiff Catherine, and the force and violence of the impact upon the automobile in which Catherine Duval was a passenger was a probative factor relating to the nature and extent of the injuries received by her. Gourdin v. Waller, 30 Colo.App. 498, 495 P.2d 1142, 1143 (1972). We find that the trial court did not abuse its discretion in the admission of the evidence to which the defendant has objected, such evidence being relevant to the issue of damages being tried.
The second claim of error briefed by the defendant is that the lower court erred in denying a motion made for a mistrial because, as the defendant claims, the evidence of a Mr. Shortsleeve brought the matter of insurance in the case.
The plaintiffs called Mr. Shortsleeve as an expert witness to testify as to the damages to the car owned by the plaintiff Louis Duval. Upon cross-examination, counsel for the defendant, an experienced trial lawyer, inquired of Mr. Shortsleeve if he knew a Mr. Sanborne. Upon the affirmative response by the witness, defendant's attorney then asked 'What does he do?'. The response to this question was While defendant's claim seems to be that at the time of the answer the witness pointed his finger at defendant's attorney, the record does not establish such physical act on the part of the witness. The term 'pointing the finger' was used by the attorney for the defendant at a bench conference with the trial judge after the motion was made for mistrial.
We note that the witness did not mention the word 'insurance' in his answer to the question propounded to him. Furthermore it was an answer that might well have been expected by counsel for the defendant in view of his question, and in view of his trial experience.
The rule of this Court generally, is that the matter of insurance coverage confuses the issues and creates undue prejudice. Wilbur v. Tourangeau, 116...
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Orleans Village v. Union Mut. Fire Ins. Co.
...a central issue; in fact, the very mention of the subject can be so prejudicial as to bring about a mistrial. See Duval v. Diamondstone, 132 Vt. 176, 179, 315 A.2d 498 (1974). When 29 V.S.A. § 1403 is involved, the issue of coverage is crucial, and the first trial court could not have found......