Keeshin Motor Express Co. v. Sowers

• Decision Date: 11 May 1943
• Docket Number: 27855.
• Citation: 48 N.E.2d 459,221 Ind. 440
• Parties: KEESHIN MOTOR EXPRESS CO., Inc., v. SOWERS.
• Court: Indiana Supreme Court

48 N.E.2d 459

221 Ind. 440

KEESHIN MOTOR EXPRESS CO., Inc., v. SOWERS.

No. 27855.

Supreme Court of Indiana

May 11, 1943

Appeal from DeKalb Circuit Court; Wm. P. Endicott, Judge.

Eggeman Reed & Cleland and James P. Murphy, all of Fort Wayne for appellant.

Arthur W. Parry and Merl A. Barns, both of Fort Wayne, for appellee.

SWAIM Judge.

This action arose out of a collision between a truck operated by the appellant and another truck being driven by Arthur D Sowers, appellee's decedent. In the collision the drivers of both trucks were killed. The collision was observed by Lawrence Cole, the driver of a third truck. Cole testified that he was driving his truck east on U. S. highway 6 near Nappanee, Indiana, about 3:30 o'clock a. m., at the beginning of an 'S' curve, where the State Highway Commission had designated that portion of the highway as a 'no passing zone' by painting a yellow line along the right side of the center line thereof; that he was driving his truck about 32 miles an hour at this point when the truck belonging to the appellant crossed the yellow line onto the left-hand side of the road and passed him; that at that time the witness saw the lights of the truck being driven by the appellee's decedent approaching from the east; that as the two trucks which collided approached each other said decedent first tried to drive his truck off of the concrete slab to his right but could not do so because of a barricade along the north side of the highway at that point, about two feet from the edge of the pavement; that there was not then room between the left side of the appellant's truck and the barricade along the north side of the road for the decedent's truck to pass on the north side of the appellant's truck; that both decedent and appellant's driver then swung their trucks back toward the center of the road and they collided approximately in the middle of the road, but while both were still on the north side of the center line; that when the collision occurred the witness had stopped his truck and was watching.

The only error assigned by the appellant is the overruling of its motion for a new trial.

The first proposition advanced by appellant is that the verdict was not sustained by sufficient evidence in that it was not shown that the negligence of the driver of the appellant's truck was the proximate cause. The testimony of Cole was sufficient to sustain the verdict and there was other evidence corroborating part of his testimony.

The next proposition advanced by the appellant is that the trial court should have granted the motion of the appellant to withdraw the cause from the jury on account of the misconduct of counsel for the appellee in making a certain remark during the course of the trial concerning the question of insurance. Counsel for the appellant, in cross-examining a surveyor who had made a plat of the highway at the scene of the accident, asked the witness who had requested him to go to the scene of the accident and make the measurements for the plat. He answered that it was for Lincoln Dixon who represented an insurance company, the name of which the witness did not know. He then testified that he did not make the plat for the appellant's attorneys. He was then asked if he had seen the plats from the time he delivered them over to Dixon until he saw them in the court room. At this point in the cross-examination counsel for the appellee objected to the line of questioning being pursued and the subject matter which counsel for appellant was seeking to bring up contending that it was unfair and prejudicial to his cause of action and then stated, 'I am representing Mrs. Sowers and whether these were made for Mr Cleland's insurance company or who, wouldn't have anything to do with this case.' At this point counsel for the appellant moved that 'this cause be removed from the jury and the jury be discharged, because of the misconduct of counsel in injecting the element of insurance in this case.' Counsel for appellant had caused the witness to answer that he did the work for a representative of an insurance company. The evidence fails to disclose what kind of an insurance company it was or whether, if it was an automobile insurance company, it was the one carrying the insurance on the appellant's truck or on the truck being driven by the decedent. The statement made by counsel for appellee did not state that the insurance company in question was carrying the risk on the appellant's truck. Counsel for appellant made no motion to have the court instruct the jury that they should disregard the statement. The court did not err in refusing to set aside the submission and to discharge the jury because of this statement. Gerking v. Johnson, Ind.Sup.1942, 44 N.E.2d 90; Ramseyer, Ex'r, v. Dennis, 1918, 187 Ind. 420, 116...