Huls v. Dalzell

• Decision Date: 15 December 1933
• Citation: 66 S.W.2d 28,252 Ky. 13
• Parties: HULS v. DALZELL.
• Court: Kentucky Court of Appeals

66 S.W.2d 28

252 Ky. 13

HULS v. DALZELL.

Court of Appeals of Kentucky

December 15, 1933

Appeal from Circuit Court, Bourbon County.

Suit by Sallie Dalzell against David Huls. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Gene Lair, of Paris, for appellant.

Raymond Connell and Ralph Connell, both of Paris, for appellee.

DIETZMAN Justice.

This is a suit brought for personal injuries received by the appellee in a collision between a truck owned by the appellant and driven by his agent and an automobile owned by the appellee's husband and in which she was riding at the time of the accident. On the trial, the appellee recovered a verdict for $1,000, and, from the judgment entered on that verdict, this appeal is prosecuted.

Three grounds are relied upon for reversal. First, when one of the witnesses for the appellee was upon the witness stand appellee's counsel, in eliciting from him his testimony regarding the accident, asked him to describe the truck which collided with the automobile in which the appellee was riding. The witness in response to that question said:

"Well it had grass seed scattered over the truck. After he (the chauffeur of the truck) hit this machine; after he got loose from it, he backed back and asked what the damage was; said he had insurance."

The appellant at once moved the court to set aside the swearing of the jury and to continue the case. The court overruled the motion but admonished the jury as follows:

"Gentlemen of the jury; The statement of the witness with reference to the driver of the truck making some reference to having insurance is incompetent and an improper statement and should not be considered by the jury as having any bearing upon this case whatever and should not affect your decision in the case in any manner whatever. You may not consider this statement for any purpose whatsoever." It is conceded that the reference to the insurance by the witness was not brought about by any misconduct on the part of the appellee or her counsel, but was purely a gratuitous statement made by the witness and in response to no question calculated to bring it out. We are of opinion that under these circumstances and in view of the court's admonition, the court did not err in overruling appellant's motion to discharge the jury and continue the case. As said under somewhat similar circumstances in the case of Chambers v. Hawkins, 233 Ky. 211, 25 S.W.2d 363, 364:

"In the absence of something to indicate that there was a deliberate purpose to get before the jury that there was an insurance company involved in the case, such statements cannot be considered prejudicial."

We are of opinion that the first ground relied upon is without merit.

The second ground relied upon for reversal is the error in refusing an instruction asked for by appellant. At the time of the accident, the automobile in which appellee was riding was in charge of her husband, who was the owner of the car. Although the overwhelming weight of the evidence is to the effect that this automobile was standing still beside the curb and the truck of the appellant in making a left-hand turn into the street where this automobile was parked, ran too close to the automobile and collided with it, yet it is true that the chauffeur in charge of the truck did testify that in making this left-hand turn, he swung wide enough to miss the automobile and it was due to the driver of the automobile letting his car roll into the back end...