Kelty v. Best Cabs, Inc.

• Decision Date: 06 March 1971
• Docket Number: No. 45894,45894
• Citation: 481 P.2d 980,206 Kan. 654
• Parties: Velma F. KELTY and John M. Kelty, Appellees, v. BEST CABS, INC., William E. Newby and Milton Hetzel, Appellants.
• Court: Kansas Supreme Court

Page 980

481 P.2d 980

206 Kan. 654

Velma F. KELTY and John M. Kelty, Appellees, v. BEST CABS, INC., William E. Newby and Milton Hetzel, Appellants.

No. 45894.

Supreme Court of Kansas.

March 6, 1971.

Syllabus by the Court

1. As a general rule the deliberate injection of the subject of the defendants' liability insurance coverage into the trial of an action to recover damages constitutes prejudicial and reversible error.

2. Where mention of insurance gets into the testimony unintentionally or inadvertently, its admission ordinarily may he cured by a peremptory order of the trial court striking the evidence and instructing the jury to disregard it.

3. Where the word or term 'insurance' has come into the trial of a case inadvertently and counsel for the defendant requests the trial court not to admonish the jury concerning it, prejudicial error may not ordinarily be predicated on the court's failure to strike the testimony and admonish the jury to ignore it.

4. It is generally true that one who is a passenger in a motor vehicle is under a duty to exercise reasonable care for his own safety and is guilty of negligence in failing to warn the driver of imminent danger where he is, or in the exercise of reasonable diligence should be, aware of the danger.

5. It is the rule of this jurisdiction that instructions submitted to the jury should be limited to those issues which find support in the evidence.

6. A motorist, or a passenger in a motor vehicle, may rely on the assumption that other motorists will observe the rules of the road and the laws and regulations which govern traffic, and neither is guilty of negligence in relying on that assumption unless and until he has knowledge to the contrary.

7. A litigant who asserts mitigation of damages in defense of a lawsuit rests under the burden both of pleading and establishing the same.

8. The question of whether two or more persons are engaged in a joint adventure or enterprise at any given time is generally for the jury to decide and it is only when reasonable minds may not differ on the issue that the question can be resolved as a matter of law.

9. Generally the test of joint enterprise between the driver of a motor vehicle and his passenger is whether they were jointly operating and controlling the movements of the vehicle in a common purpose or had equal right to do so.

10. The record is examined in an action to recover damages for injuries sustained in an automobile collision and for reasons set forth in the opinion it is held the trial court did not err (1) in refusing to declare a mistrial and (2) in refusing to instruct the jury as requested by the defendants.

William A. Wells, Wichita, argued the cause, and Ralph B. Foster, Wichita, was with him on the brief, for appellants.

Artie E. Vaughn, of Vaughn, Updegraff & Allison, Wichita, argued the cause and was on the brief, for appellees.

FONTRON, Justice:

The plaintiff, Velma F. Kelty, seeks to recover damages for personal injuries sustained in a collision between a truck in which she was riding as a passenger and a taxicab operated by the defendant, William E. Newby, in the service of the defendant, Best Cabs, Inc. Originally, John M. Kelty joined his wife as a party plaintiff herein, but at some undisclosed and unspecified time he was dismissed as a party and the lawsuit has been continued by Velma F. Kelty alone.

The accident happened in this manner: The truck, with Mr. Kelty at the wheel, was proceeding east on 21st Street in the city of Wichita, when its rear right fender was grazed by the left front fender of the taxicab as Newby, headed north, pulled into the street from a filling station driveway. As a result of the impact, Mrs. Kelty suffered injuries to her back, for which the jury awarded her the sum of $2100. The defendants have appealed from the judgment entered on the verdict.

Several trial errors are charged. It is first contended that the trial court should have declared a mistrial because the subject of insurance was mentioned. The incident occurred in this wise: In response to questioning by defense counsel on cross-examination, the plaintiff's doctor gave this answer:

'A. Well, as I say, I just give what I think of it. Now, for instance, I thought in rotating her spine that she was limited in this way. This is what I think of it now. If the Court or some other insurance company or somebody wants an opinion which I felt they did in this case, then I would refer her on for these measurements that they desire.'

No objection was interposed to this answer at the time it was given but at the conclusion of the doctor's testimony the defendants' counsel, in chambers, moved for a mistrial. In overruling this motion the trial judge observed he would have stricken the answer had a motion therefor been made at the time, but to do so now might only accentuate the reference to insurance. The defendants' counsel thereupon stated he was not asking that the answer be stricken; that striking it would not cure his complaint. Whereupon the court inquired if counsel wanted the jury admonished to disregard the evidence and to this inquiry counsel responded 'no.'

Obviously the good doctor did not employ the opprobrious term with calculated intent to inject prejudice into the case. We deem the reference to have been inadvertent, casual, and in the context in which it was used, innocuous. The trial court's refusal to declare a mistrial or to grant a new trial amounts to a finding by it that the reference to insurance came into the record unintentionally. (Caylor v. Atchison, T. & S. F. Rly. Co., 189 Kan. 210, 368 P.2d 281.)

Despite our long adherence to the rule that the deliberate injection of insurance coverage into the trial of a damage action presents a basis for a new trial (Van Pelt v. Richards Paint & Paper Co., 132 Kan. 581, 296 P. 737; Gard, Kansas Code of Civil Procedure, § 60-454), this court has also held that where such monstrous testimony slips into the record inadvertently, its admission may be cured by a peremptory order of the trial court striking the same and instructing the jury to disregard it. (Holloway v. Telfer, 136 Kan. 80, 12 P.2d 826; Coffman v. Shearer, 140 Kan. 176, 34 P.2d 97.)

While the offenseive evidence was not stricken in the present case, and no instructions were given to the jury to disregard it, this omission was obviously induced by defense counsel's failure to file a motion for such relief and by his statement to the court that he did not wish to have the jury admonished. A similar situation was presented in Caylor v. Atchison, T. & S. F. Rly. Co., supra, where trial counsel, after testimony concerning insurance had gotten into the case, requested that no further reference thereto be made by the court, as such would only tend to emphasize the subject of insurance in the minds of the jury. We held that under those circumstances, and giving consideration to the evidence of record and the size of the verdict, no prejudicial error could be said to have occurred.

In Thompson v. Barnette, 170 Kan. 384, 227 P.2d 120, defense counsel refused to consent to the court's proposal to strike certain references to insurance occurring during the trial and to instruct the jury to disregard them, the reason for counsel's refusal being that the damage had already been done and that further reference would merely magnify and emphasize the fact of insurance coverage. In upholding a judgment in plaintiff's favor this court said:

'* * * (A)s we read this record, it is not made to appear that any prejudice resulted from what manifestly appears to have been an inadvertent reference on the part of plaintiff while on the witness stand. Indeed, the trial court in denying the motion for a mistrial and to discharge the jury commented that he was well satisfied there had been no intentional misconduct by counsel and that the mention of insurance was purely inadvertent. We feel compelled to agree * * *.' (p. 389, 227 P.2d p. 124.)

See, also, Parnell v. Security Elevator Co., 174 Kan. 643, 258 P.2d 288.

The odious expression was uttered but once in the instant case-by plaintiff's own doctor in response to cross-examination by the defendants' counsel. Evidence of the cab driver's negligence was impressive, as we view it, and the $2100 verdict quite...