Hedger v. Davis

• Decision Date: 09 December 1930
• Citation: 236 Ky. 432
• Parties: Hedger v. Davis.
• Court: United States State Supreme Court — District of Kentucky

236 Ky. 432

Hedger v. Davis.

Court of Appeals of Kentucky. Common Pleas Branch, Fourth Division.

Decided December 9, 1930.

1. Trial. — Permitting testimony that defendant in damage action has indemnity insurance is error.

2. Trial. — Counsel's interrogating prospective jurors or witnesses, when not acting bona fide, to disclose that defendant in damage action has insurance, is misconduct.

3. Witnesses. — Bias of witness may be developed on cross-examination to disclose kinship, business connection, employment, and any other circumstance tending to show possible favoritism.

4. Trial. — Evidence held admissible, although disclosing that defendant in damage action carried insurance, where questions went to bias of witness, and showed no misconduct by counsel.

It appeared that counsel did not state in presence of jury that defendant carried indemnity insurance, and that there was no suggestion to that effect in any question asked.

5. Damages. — $450 held not excessive for damage to automobile; evidence received without objection, showing estimated repairs would cost $435, and that accident caused depreciation of $500.

6. Damages. — $300 held not excessive for injuries in automobile accident, resulting in sprained back, severe shock, and nervousness.

Appeal from Jefferson Circuit Court

ROBERT L. PAGE for appellant.

STANLEY MAYER for appellee.

OPINION OF THE COURT BY JUDGE CLAY

Affirming.

This is an appeal from a judgment in favor of appellee for $750, of which $450 was for damages to his automobile, and $300 for personal injuries.

There is no complaint of the instructions, and it is conceded that there was sufficient evidence of negligence to take the case to the jury. The only grounds urged for reversal are: (1) The court erred in overruling appellant's motion to set aside the swearing of the jury because of evidence that the doctor made his report to the insurance company; (2) the verdict is excessive.

The record discloses that, after Dr. A.D. Willmoth, chief of staff of St. Anthony's Hospital, had qualified and testified that he examined appellee and found no cuts or bruises on him, and that the X-ray which he made did not reveal anything except a normal spine, the following occurred:

"10. How did you happen to go down to see him? A. At the request of Mr. Page of the Insurance Company.

"11. When did you go down to see him? A. April 11, 1929.

"12. When you went down there what happened? A. At first —

"13. What did you tell him when you went down there? A. I told him I was there to examine him for the insurance company. At first, he was not very kindly disposed to let me talk to him or see him. After acquainting him with the fact that I knew several of the foremen who worked at the United States Foil Company, he then let me examine him and talk to him. And later on, he came up to my office at my request to have an X-ray made of his spine.

"14. Then when you got him into your office, what kind of examination did you put him through? A. X-ray — X-rayed his spine.

"15. What else? Did you examine him in any way besides the X-ray at your office? A. Not that I have any record of here — no, sir.

"16. Did you look for any bruises? A. I did the first time I saw him — yes, sir; and naturally had him stripped to take an X-ray and I saw him again.

"17. Did he complain of any nervousness? A. He said he was nervous and his back hurt.

"18. Doctor, will an X-ray show any injury to the back? A. It will to the spine, and will to the soft structures if there is any homorrhage in the soft structures. Otherwise, it would not show any injury to the soft structures.

"19. X-ray is not very satisfactory in determining injury to the back, is it doctor? A. Absolutely so, of the bony structures — not of the soft structures.

"20. He may have considerable pain to the back that would not be shown by an X-ray? A. That is very true.

"21. An automobile accident, in which both cars were severely damaged, is that likely to cause nervousness in one of the drivers? A. That is a very hard question to answer. It might in some people; most people, it probably would not.

"22. Depending upon the temperament of the individual? A. Yes, sir. Purely a nervous manifestation, it might be attributed to that, and might be due to something else.

"23. Did Mr. Davis tell you about the nervous condition that this had brought about? A. No, sir; he did not. He said he was off from work two and a half days. My record shows nothing of any nervous condition.

"24. You then reported to Mr. Page? A. How is that?

"25. You reported your findings? A. I filed a copy with the insurance company — yes, sir; and Mr. Page.

"26. By Mr. Page: He told you he was off two and a half days? A. Yes, sir."

Thereupon counsel for appellant moved to discharge the jury because of the statement of the witness that he went to see plaintiff at the request of the insurance company, and the motion was overruled. Though we are committed to the rule that it is error to permit testimony to the effect that a defendant in an action for damages is protected by indemnity...