Miller v. Walsh's Administratrix

• Decision Date: 30 October 1931
• Citation: 240 Ky. 822
• Parties: Miller et al. v. Walsh's Administratrix.
• Court: United States State Supreme Court — District of Kentucky

240 Ky. 822

Miller et al. v. Walsh's Administratrix.

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

Decided October 30, 1931.

1. Appeal and Error. — Excluding driver's testimony respecting his actions before reaching zone of automobile accident, if as constituting transaction with deceased, even if improper, held not prejudicial to defendants, since it was immaterial (Civil Code of Practice, sec. 606, subsec. 2).

2. Witnesses. — Speed and movement of truck, sounding horn, and pedestrian's movements, at time of fatal accident, constituted "transaction with deceased," justifying exclusion of defendant driver's testimony relating thereto (Civil Code of Practice, sec. 606, subsec. 2).

3. Witnesses. — Truck driver, sued jointly with owner for death of pedestrian, held incompetent to testify for owner respecting facts constituting transaction with deceased (Civil Code of Practice, sec. 606, subsec. 2).

Driver is incompetent to testify for the owner under such circumstances because he was personally interested in the result of the litigation, since, unless he was negligent, no recovery could be had either against driver or owner, and in the very nature of things he could not testify for the owner without testifying for himself.

Appeal from Jefferson Circuit Court.

CHARLES W. MORRIS for appellants.

HARDY & HARDY for appellee.

OPINION OF THE COURT BY JUDGE CLAY.

Affirming.

A truck owned by Fred H. Miller, and driven by Christ Gentner, struck and killed Michael J. Walsh. In this action by Walsh's administratrix to recover damages for his death the jury returned a verdict in her favor for $2,500. Miller and Gentner appeal.

Only a brief statement of the facts will be necessary. According to the witnesses for appellee, the accident took place about 90 feet east of the intersection of Oak and Seventh streets in Louisville. Walsh started to cross from the north to the south side of Oak street. After walking 2 or 3 feet, he stopped. The truck, which was going west at a speed of 25 to 35 miles an hour, swerved toward the curbing just before it reached Walsh, and struck him. After passing over his body, the truck ran some 60 or 70 feet before it was brought to a stop. According to Joe M. Kenney, who worked for Miller and was on the truck at the time, the truck was traveling about 15 miles an hour. Mr. Walsh was crossing from the south to the north side of Oak street, and stepped out immediately behind an automobile traveling east. He and Gentner did not see him until he stepped out, and he was then about 5 feet from the truck. Gentner sounded the horn and swerved the truck toward the north curb of the street. Walsh seemed to stop, and then ran into the side of the truck.

The only ground urged for reversal was the exclusion of the evidence of Gentner. This evidence was excluded on the ground that it related to a transaction with the deceased, and Gentner, who was sued jointly with Miller was not a competent witness either for himself or Miller.

It may be that what Gentner saw and did before he reached what might be called the zone of the accident was too far remote in time and space to constitute a transaction with the deceased, and should not have been excluded on that ground, but, as the case turns on what took place immediately before, and at the time of, the accident, the offered evidence to the extent indicated was so immaterial that its exclusion, even if it did not relate to a transaction with deceased, was in no wise prejudicial to appellants. When we come to the conditions and circumstances existing immediately before, and at the time of, the accident, a different situation is presented. The speed and movement of the truck, the sounding of the horn, and all that Gentner observed and did, as well as the movements of the deceased, were so closely related to, and inseparably connected with, the accident as to bring them within the knowledge or observation of the deceased, make them a necessary part of the accident, and thus constitute a transaction with the deceased. As the offered evidence concerned a transaction with the deceased, there can be no doubt that, under the Code, Gentner, who was a party defendant, was not a competent witness on his own behalf. Civil Code of Practice, sec. 606, subsec. 2; Sherrill v. Wilhelm, 182 N.C. 673, 110 S.E 95; Souther v. Belleau, 203 Ky. 508, 262 S.W. 619, 36 A.L.R. 956; Louisville & N.R. Co. v. Rowland's Adm'r, 215 Ky. 663, 286 S.W. 929.

But it is argued that Gentner was competent to testify for his employer, Miller. Certain cases relied on by appellants are not controlling. All that was held in Schonbachler's Adm'r v. Mischell, 121 Ky. 498, 89 S.W. 525, 28 Ky. Law Rep. 462, was that the wife of one of several codefendants sued jointly for assault and battery could not testify for her husband, but could testify for the other defendants. In Bromley's Adm'r v. Washington Life Ins. Co., ...