Fleming v. Hartrick, (No. 6004)

• Decision Date: 07 February 1928
• Docket Number: (No. 6004)
• Citation: 105 W.Va. 135
• Court: West Virginia Supreme Court
• Parties: Walter W. Fleming, Exr. of Sarah E. Fleming, Deceased v. George A. Hartrick

105 W.Va. 135

Walter W. Fleming, Exr. of Sarah E. Fleming, Deceased

v.George A. Hartrick

(No. 6004)

Supreme Court of Appeals of West Virginia.

Submitted January 17, 1928.

Decided February 7, 1928.

Trial Jury Should Not be Apprised of Fact That Defendant Automobile Owner is Protected by Indemnity Insurance; Plaintiff's Action in Apprising Jury That Defendant Automobile Owner Has Indemnity Insurance Ordinarily is Reversible Error, Notwithstanding Instruction Not to Consider.

The jury should not in any manner be apprised of the fact that the defendant owner in an action for the negligent operation of an automobile is protected by indemnity insurance, and such action on the part of the plaintiff or his counsel will ordinarily constitute reversible error, notwithstanding the court may instruct the jury not to consider the same in arriving at a verdict.

(Liability Insurance, 36 C. J. § 128.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, Marion County.

Action by Walter W. Fleming, deceased, against George A. Hartrick. Judgment for plaintiff, and defendant brings error.

Reversed and remanded. Shaw & Shaw, for plaintiff in error.

M. M. Neely and Henry S. Lively, for defendant in error. Litz, Judge:

This is an action of trespass on the case by Walter W. Fleming, executor of his wife, Sarah E. Fleming, deceased, against George A. Hartrick for the death of the decedent resulting from the alleged negligent operation by the defendant of a Dodge coupe automobile.

The accident occurred March 25, 1924, between the hours of 7 and 8 P. M. along a public highway near the city of Fairmont.

A judgment of $3,500.00 for the plaintiff was reversed on a former writ because the evidence, in the opinion of the court, was not sufficient to support the charge of negligence. Walter W. Fleming, Executor v. George A. Hartrick, 101 W. Va. 714. This writ is prosecuted by the defendant to a judgment of $5,750.00 rendered in favor of the plaintiff on the second trial. The points of error mainly relied upon are, first, the improper cross-examination of a witness for defendant, which it is charged was intended for the purpose of disclosing to the jury the fact that the defendant was protected by indemnity insurance, and second, that the evidence was insufficient to support the verdict.

While walking on the track of an interurban traction line (paralleling the public road) a short distance from a car stop where she had alighted from an interurban car, Mrs.. Fleming was struck and killed by the automobile of the defendant. The defendant and Morris Silverman, riding as a guest with Hartwick, both of whom testified at each trial, were the only eye witnesses to the tragedy. Their evidence is to the effect that the defendant was shoved or crowded from the road onto the street car track by another automobile coming from the opposite direction while the defendant was traveling at the rate of 18 to 25 miles an hour. At the second trial John F. Jacobs, introduced for the first time as a witness in the case, testified on behalf of the plaintiff, in substance, that he observed the defendant about 2, 100 feet from the point of accident going at the rate of 45 miles an hour; that he followed in his car immediately, overtaking defendant at the point of accident after it...