Gayheart v. Smith

• Court: Court of Appeals of Kentucky
• Writing for the Court: RICHARDSON, J.
• Citation: 240 Ky. 596,42 S.W.2d 877
• Parties: GAYHEART et al. v. SMITH.
• Decision Date: 20 October 1931

42 S.W.2d 877

240 Ky. 596

GAYHEART et al. v. SMITH.

Court of Appeals of Kentucky

October 20, 1931

Appeal from Circuit Court, Perry County.

Action by Kinney Smith against Silas B. Gayheart and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Wootton Helm & Wootton, of Hazard, for appellants.

C. A Noble and T. E. Moore, both of Hazard, for appellee.

RICHARDSON J.

The appellee, Kinney Smith, on the 30th day of March, 1930, was the owner of a one and one-half ton Chevrolet truck, 1929 model. He, Kelsay Stacy, and Andrew Smith were traveling in it in the nighttime in or near the city of Hazard, in Perry county. While in front of the residence of G. D. Bratcher, a collision occurred between it and a taxi, claimed to have been owned by Joe Gayheart and licensed in the name of Silas B. Gayheart. At the time of the collision, Silas Gayheart Joe Gayheart, and Gilbert Hyslop were riding in the front seat, with Lucy Combs and Thelma Schearer in the rear seat of the taxi. The chassis of the truck was broken, both brakes bent toward the center; motor and cab bursted, two casings burst, the running gear displaced, totally disabling it. The muscles of appellee's right kneecap were pulled loose, resulting in a stiff knee; his head was cut, leaving a scar. On account of his injury, he lost thirty days' time and expended for doctor's bill about $45 or $50. It is charged in the petition that he was traveling slowly in the truck on the right side of the road; that Joe Gayheart, acting as agent of Silar Gayheart, was operating the taxi on the highway at the same time, and that he recklessly and negligently operated it on the wrong side of the road, thereby colliding with and damaging his truck and injuring his person. The appellants traversed the petition, and in the second paragraph of their answer charged the appellee with negligence in the operation of his truck, and that by reason thereof the taxi was damaged in the amount of $150.

On a trial by a jury, a verdict was returned for the appellee for the sum of $700 for damages to the truck; for $30, the amount paid for license; for doctor's bill $35; for loss of time, $150; for mental and physical suffering, $1,085, total, $2,000. Judgment was accordingly entered, from which appellants appeal.

The causes assigned in appellants' motions and grounds for a new trial, and for which they sought a new trial are: (1) The admission of incompetent evidence; (2) refusing to admit competent evidence; (3) refusal to give certain offered instructions; (4) giving of instruction No. 1; (5) the verdict is not sustained by the law or evidence, and is excessive.

In brief of counsel of appellants we find this statement: "The three main questions presented on this appeal are: First: Is the verdict rendered by the jury supported by the law and evidence? Second: Is the finding of the jury excessive and the result of passion and prejudice? Third: Did the court err in permitting incompetent evidence to go to the jury, and in permitting appellee to prove that appellant, Silas B. Gayheart carried indemnity insurance on his taxi?"

It will be observed that the appellants in their brief have abandoned several of the causes set up in their motion and grounds for a new trial; for this reason we shall give our attention only to those urged in the brief.

The testimony of the appellee and those traveling with him, and others who came upon the scene immediately following the collision, sustains the allegations of his pleading, and that of the appellants and those traveling with them at the time establish the truth of appellants' allegations. There is an irreconcilable conflict between the testimony of the witnesses of the parties as to the cause and the way the collision of the vehicles occurred. It was a question for the jury under appropriate instructions to determine the verity of the conflicting testimony as to this issue. Southern Ry. Co. v. Alford's Adm'r, 150 Ky. 808, 150 S.W. 985; Aetna Life Ins. Co. v. Rustin, 151 Ky. 103, 151 S.W. 366; Anderson County Board of Control v. Southern Ry. Co., 152 Ky. 278, 153 S.W. 421; Brumfield v. Consolidated Coach Corp., 240 Ky. 1, 40 S.W.2d 356. The evidence being conflicting on it, it was proper to submit it to the jury. Golden v. L. & N. R. Co., 228 Ky. 134, 14 S.W.2d 379. This court will not reverse a judgment because a jury happened to believe one set of witnesses rather than the other. Chaney v. Commonwealth, 149 Ky. 464, 149 S.W. 923; Brumfield v. Consolidated Coach Corp., supra.

There is no contrariety of, or contradiction in, the evidence touching the damages to appellee's truck, or the extent and nature of the injury of his person, or the amounts he expended for doctor's bill, or as to the time he lost. By his attending physician it is shown that his knee was injured and the cap fractured; the soft or pithy part of the bone was pulled loose, making a division of the bone of the knee cap into two parts; that the knee was not well at the time of the trial, and that it will never be normal; that the injury to the knee was permanent, preventing him from bringing his leg forward and impairing its motion.

The damage to appellee's truck and the injury to his person not being disputed, it was for the jury to determine on the uncontradicted testimony as to the condition, and the difference between the fair, reasonable value of the truck immediately before and immediately after the collision; the nature, the extent, or the permanency of the injury to appellant's person, and the mental and physical suffering resulting therefrom, and the amount which should be awarded to him therefor. Bowling Green Gas Light Co. v. Dean's Ex'x, 142 Ky. 678, 134 S.W. 1115. The jury's finding as to these items and the amount of his recovery therefor cannot be disturbed by this court; there being no showing that its findings were the result of passion or prejudice. City of Oakdale v. Sanders' Ex'x, 155 Ky. 352, 159 S.W. 812; Louisville & N. R. Co. v. Mink, 179 Ky. 625, 201 S.W. 16. Even where the facts are disputed and there is a wide difference in the testimony as to the damages, it is for the jury to weigh the evidence and to determine what sum should be awarded. Beaver Dam Coal Co. v. Daniel, 227 Ky. 423, 13 S.W.2d 254. The testimony in respect to the injury to his knee, resulting from the collision, positively and satisfactorily shows it was a permanent one. The rule is that, when a verdict for a personal injury which is not permanent is so large that it could not be sustained unless the injury was permanent, this court may reverse on account ef excessive damages. Louisville & N. R. Co. v. Lewis, 211 Ky. 830, 278 S.W. 143; Chesapeake & O. R. Co. v. McCullough, 236 Ky. 647, 33 S.W.2d 655. It is likewise a rule of this court that, when the injury is permanent, the verdict of the jury will not be set aside as excessive, unless the amount of damages awarded is so great as to strike the mind at first blush as having been superinduced by passion or prejudice. Nussbaum v. Caskey, 235 Ky. 640, 32 S.W.2d 18; City of Providence v. Young, 227 Ky. 690, 13 S.W.2d 1022; W. T. Grant Co. v. Taylor, 223 Ky. 812, 4 S.W.2d 741; Chambers v. Hawkins, 233 Ky. 211, 25 S.W.2d 363. We are unable to say in this case that the damages allowed were excessive within the meaning of the rules by which we are governed. Nussbaum v. Caskey, supra.

The third reason urged for reversal is the alleged error of the court in the permitting of appellee's counsel to ask Silas B. Gayheart if he carried indemnity insurance on his taxi. This presents a more interesting and serious question.

It will be observed that in neither their motion and grounds for a new trial nor in their brief do they present, or rely upon, misconduct of the appellee or of his counsel. It is earnestly and most urgently insisted that the question, "Isn't it a fact that you have taken out liability insurance on this car in your name?" and which Silas B. Gayheart was required to answer, and which he answered in the affirmative, was incompetent evidence, and its admission was prejudicial to their substantial rights. The objection thereto is not based on the ground that the asking of it was misconduct of the appellee or his counsel. It is only insisted and urged that it was incompetent evidence, and upon this theory it is argued in support of the right to a reversal of the judgment.

We shall consider and dispose of this phase of the case according to its...