Harris v. P. Koenig Coal Co.

• Decision Date: 19 July 1923
• Docket Number: No. 11.,11.
• Parties: HARRIS v. P. KOENIG COAL CO.
• Court: Michigan Supreme Court

223 Mich. 683

194 N.W. 511

HARRIS

v.P. KOENIG COAL CO.

No. 11.

Supreme Court of Michigan.

July 19, 1923.

Error to Circuit Court, Wayne County; Ormond F. Hunt, Judge.

Action by Lillian P. Harris against the P. Koenig Coal Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before WIEST, C. J., and McDONALD, CLARK, BIRD, SHARPE, and MOORE, JJ. Vandeveer & Foster, of Detroit, for appellant.

Homer H. Quay, of Cheboygan, and Benjamin & Betzoldt, of Detroit, for appellee.

WIEST, C. J.

While riding in an automobile, driven by her brother, going south on Second avenue in the city of Detroit, plaintiff claims the automobile was struck and overturned by a truck belonging to defendant, being driven east on Putnam avenue at the intersection of Second and Putnam avenues, and she received injuries. She claims the driver of the truck was guilty of negligence in speeding up when he saw the car approaching the intersection and noticed that his truck would likely reach the intersection at the same time, instead of giving the automobile the right of way, as provided by ordinance of the city of Detroit for vehicles being driven over a north and south street. Other negligence is charged but need not be mentioned.

Defendant claims there was no collision and that the automobile overturned by reason of the speed at which it was being driven when it was suddenly turned to go east on Putnam avenue.

As sometimes happens, there was testimony in support of the claims of both parties. The issue of fact so raised was submitted to the jury and the result was a verdict for plaintiff.

At the trial plaintiff encountered some difficulty in showing the ownership of the truck by defendant and its operation at the time of the accident by its employee, and was compelled to seek such evidence in the office of defendant, and to that end called defendant's office manager, and found a report of the accident had been made by the driver, but the original thereof had been mailed to Homer-Warren & Co. Upon objection being made to the use of the copy of the report of the driver, retained in the office of defendant, plaintiff called Mr. Grow, who was connected with Homer-Warren & Co., and he testified he could not find the report wanted, and being asked, ‘What do you do with them?’ answered, ‘They are sent to the claim department of the Ocean Insurance Company.’ Upon objection the trial judge stated: ‘I will strike out the latter part of the answer. He sends them out of the office.’ Upon further evidence tending to show the original report was beyond the reach of plaintiff, the court admitted such part of the copy in defendant's hands as gave the name of the driver and identified the truck and fixed the time of the accident reported.

It is strenuously insisted that this got before the jury the fact of accident insurance carried by defendant and constituted reversible error. Defendant, of course, was well within its rights in insisting on strict proof that the accident was occasioned by its truck while being operated by one of its employees; but when the evidence thereof lay in its office, and its objection drove plaintiff to go there for such proof, and further objection sent plaintiff on a search for the original of the report because the same had been sent out from defendant's office, defendant stood a fair chance of being ‘hoisted by its own petard.’ The objection seems to have occasioned some back-fire.

The objection to the use of the copy of the report, to merely show the identity of the driver and truck, such copy being retained by defendant in its office, went beyond defendant's right of objection, for the copy found in its hands was admissible, and defendants should not have insisted upon plaintiff's running down the original. The run for the report, as defendant must have known it would, headed at once toward the insurance company because it had been sent there by defendant, and it was impossible to keep mention of its whereabouts out of the case. The report, or the copy of the same retained by defendant, was competent evidence for the purpose it was wanted, and the trial judge was careful to keep the evidence within such purpose, and, under the circumstances here disclosed, we cannot hold there was reversible error. But, it is claimed, the subject of insurance was brought up by plaintiff's attorney in the following part of his argument to the jury:

‘As a further evidence of the fairness of this defendant, of the fairness of their defense, yesterday morning when I saw Mr. Holycross out in the hall when I was trying to prove agency, I asked him to come into the courtroom and was bringing him into the courtroom to swear him, and Mr. Bash, attorney and adjuster, grabbed...