Martin v. Ackman

• Decision Date: 16 November 1937
• Citation: 110 S.W.2d 437,270 Ky. 640
• Parties: MARTIN v. ACKMAN.
• Court: Kentucky Court of Appeals

110 S.W.2d 437

270 Ky. 640

MARTIN v. ACKMAN.

Court of Appeals of Kentucky

November 16, 1937

Appeal from Circuit Court, Bourbon County.

Action by Loretta Ackman against E. H. Martin and others, wherein there was a verdict for plaintiff against defendants Fleenor and Martin jointly. From a judgment on the verdict, defendant Martin appeals.

Affirmed.

George R. Smith, of Lexington, George Batterton, of Paris, Raymond Mucci, of Lexington, Stanley B. Mayer, of Louisville, and A H. Barker, of Cynthiana, for appellant.

Dickson Bradley & Blanton, of Paris, for appellee.

CREAL Commissioner.

On or about October 5, 1935, a motorbus owned by D. A. Fleenor and being driven by R. L. Duncan and a motortruck owned by E. H Martin and being driven by Dewey Reed came in collision near Greenwood, Ky. on U.S. Highway 27 and Mrs. Loretta Ackman, a passenger on the bus, sustained injuries as a result of the collision.

She instituted this action against D. A. Fleenor, doing business as the Fleenor Bus Lines, and E. H. Martin, and R. L. Duncan and Dewey Reed, the drivers of the bus and truck, alleging that her injuries were brought about by the concurrent negligence and carelessness of the defendants in the operation of the bus and truck.

Fleenor and Duncan by joint and separate answers traversed the allegations of the petition and alleged that the collision and the resulting injuries to plaintiff, if any, were caused and brought about solely by the negligence of their codefendants in the operation of the truck. Martin and Reed by their joint answers also traversed the allegations of the petition and alleged that the collision and any injuries sustained by plaintiff were due solely to the negligence of their codefendants in the operation of the bus. Neither of the answers was made a cross-petition, nor was any relief asked as against the other defendants. The jury returned a verdict for plaintiff against the defendants Fleenor and Martin jointly in the sum of $4,000, and Martin alone is appealing against Mrs. Ackman, Fleenor not being made a party to the appeal.

When the case was called for trial, defendants Fleenor and Duncan entered a motion for continuance on account of the absence of important witnesses and supported by the affidavit of Fleenor. No question is made concerning the form or sufficiency of the affidavit. The affidavit gives the name of the absent witnesses and stated in substance that they would testify if present that they witnessed the collision between the truck and bus; that when they first saw the truck about 100 yards away it was on the left side of the road and the bus was as far over to its right as it was possible for the driver to get; that the front of the bus and truck passed, but that the trailer of the truck skidded or in some manner cut to the left side and struck the left side of the bus behind the driver's seat. The court overruled the motion for continuance, but permitted the affidavit to be read as the evidence of the absent witnesses to which defendants Martin and Reed objected. This ruling of the court is the basis of the first ground argued for reversal.

It is argued in effect that ex parte affidavits are not admissible as to controverted facts material to an issue or issues and that even under section 315 of the Civil Code of Practice the affidavit as to what may be proven by absent witnesses may not be read as the deposition of such witnesses without the consent of the adverse party; and it is asserted that as between appellant and Fleenor and Duncan, appellant was an adverse party.

The exact question has never been presented to this or any other court according to a statement of counsel, nor so far as our research discloses but there are a number of cases bearing close analogy. In Cumberland Telephone & Telegraph Company v. Ware's Adm'x, 115 Ky. 581, 74 S.W. 289, 292, 24 Ky. Law Rep. 2519, the action was against three alleged joint tort-feasors. In making up the jury, one of the defendants filed an affidavit stating that its defense was not in conformity with and was unfriendly to that of its two codefendants and it asked the privilege of striking three names from the panel of the jury but was denied such privilege. The court, in construing section 2258 of the Statutes which provided, "Each party litigant in civil actions shall have the right of peremptory challenge to three jurors, and the right to challenge as now allowed by law," and after also quoting section 2267 of the Statutes, referred to Sodousky v. McGee, 4 J. J. Marsh. 267, wherein it was held that if there be a plurality of plaintiffs they are only one party litigant and can challenge no more than three jurors, continuing said:

"The same is true of defendants. The words 'party litigant' appeared in the statute then under consideration as in the present statute. In construing them, the court said: 'The parties litigant mean the antagonistic sides of the controversy. If there be a plurality of plaintiffs, they are all only one party litigant. So a plurality of defendants constitute one, and but one, party to the suit."'

It is a universal rule that a joint tort-feasor against whom judgment has been rendered will not be heard to complain on appeal especially in the absence of cross-appeal, that judgment was not obtained against a codefendant to the suit or that the suit was dismissed as to a codefendant. Smith v. Graves, 59 Ind.App. 55, 108 N.E. 168; Voelker v. Hill-O'Meara Construction Company, 153 Mo.App. 1, 131 S.W. 907; Talcott Land Company v. Hershiser, 184 Cal. 748, 195 P. 653; Armstrong v. Citizens' & Southern Bank, 145 Ga. 861, 90 S.E. 44; Lansing Liquidation Corporation v. Heinze, 184 A.D. 129, 171 N.Y.S. 738; Roberts v. Abney (Tex....