Miller v. Watts

• Decision Date: 17 January 1969
• Citation: 436 S.W.2d 515
• Parties: Robert L. MILLER, Appellant, v. Douglas Reed WATTS, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 515

436 S.W.2d 515

Robert L. MILLER, Appellant, v. Douglas Reed WATTS, Appellee.

Court of Appeals of Kentucky.

Jan. 17, 1969.

Robert L. Milby, Hamm, Taylor & Milby, London, Rose & Short, Beattyville, for appellant.

James S. Hogg, Jackson, S. Russell Smith, Louisville, for appellee.

DAVIS, Commissioner.

Judgment was entered upon a verdict for $10,025 in favor of Douglas Reed Watts, an infant, in his suit against Robert L. Miller for injuries allegedly sustained in a no-contact motor vehicle occurrence. Miller appeals, asserting that (1) the court erred in denying a change of venue; (2) the complaint should have been dismissed for failure of plaintiff to file a bond for costs; (3) complaint should have been dismissed for failure to answer interrogatories; (4) there was no evidence that the alleged negligence of Miller proximately caused any injury to Douglas; and (5) there was no competent evidence of a substantial injury to support the verdict.

On August 4, 1963, Douglas, then age three, was riding on the front seat of a car driven by his father, to whom we shall refer as Watts. As Watts was proceeding at about 30--35 m.p.h. along a 'blind' curve, he observed Miller's car approaching from the opposite direction and negotiating a left turn across Watts' traffic lane. Watts applied his brakes forcibly and was able to avoid a collision with the Miller car. It is the theory of Douglas that he was thrown against the dashboard of his father's car incident to the sudden stop, thereby sustaining a head injury from which there developed an epileptic condition.

Watts said that he was thrown against the steering wheel by reason of the sudden stop, but he did not specifically state that he observed what happened to Douglas at the time. Watts alighted from his car, incensed at what he considered Miller's careless driving, and started to walk toward the Miller car. When he reached the rear of his own car, he thought about Douglas and went back to see about him. He found the boy lying on the floor of the car with his head toward the right side of the car and his feet 'turned up against the seat.' Watts said that Douglas was unconscious and bleeding from a cut on his forehead. The boy was pale, his eyes were closed, and he was limp as Watts picked him up. Watts carried Douglas to the front yard of the home into which Miller had planned to turn. In a short time the child appeared to be all right, so Watts took him home.

On August 12, 1963, Douglas was taken to see Dr. Arnold Taulbee in connection with a swelling of his arm. Watts, who took the boy to Dr. Taulbee, made no mention of any injury to Douglas' head, but spoke of the injury to the arm as having occurred in an automobile accident. Dr. Taulbee found no broken bone in Douglas' arm.

Shortly after Douglas' visit to Dr. Taulbee, his parents observed that he began to 'pass out' or 'fall out.' When these seizures persisted, Mrs. Watts took him to Dr. Robert Cornett in Jackson for treatment. Dr. Cornett could not detect any abnormality in Douglas from objective symptoms or clinical examination. He did, however, make and testify to a diagnosis based upon the history of the child's condition as related to him by the mother. Dr. Cornett did not have available to him the means for a complete diagnosis at that time, so he suggested that Douglas should be taken to Dr. Harvey Chenault in Lexington. It was not until July 1964 (after suit had been filed in May 1964) that Douglas was taken to Dr. Chenault for treatment.

We deal with the assignments of error in the order in which appellant has presented them. The first relates to appellant's claim that he should have been granted a change of venue based on affidavits that 'no defendant in the last five years has been successful in winning a case before a jury in Breathitt County,' and that plaintiff's attorney, James S. Hogg, 'has advertised in the newspapers of Breathitt County the fact that he practices largely, if not exclusively, against insurance companies, and said information is widespread throughout the County.' KRS 452.010(2), as it existed when the application for venue change was made, provided:

'A party to any civil action triable by a jury in a circuit court may have a change of venue when it appears that, because of the undue influence of his adversary or the odium that attends the party applying or his cause of action or defense, he cannot have a fair trial in the county.'

Certainly there was no allegation or proof that three-year-old Douglas, appellant's 'adversary,' possessed such 'undue influence' in Breathitt County as would preclude appellant's fair trial. The claim that Douglas' attorney had publicized his devotion to practice against insurance companies had to do with some political advertisements published by the attorney in his unsuccessful race for county attorney some three or four years before the trial. An affidavit of Douglas' attorney made reference to a specific case in which the attorney had 'lost' to a defendant.

We find no merit in appellant's assertion that a change of venue should have been granted. The motion for the change was not made until August 1965, although the suit had been filed in May 1964. The appellant had filed his answer and counterclaim, taken depositions, and made various motions without raising the venue question. The claimed bases for the change of venue were as well known to appellant when the suit was filed against him as they were some fifteen months later. In Pierce v. Crisp, 267 Ky. 420, 102 S.W.2d 386, it was held that unwarranted delay in making the motion amounts to a waiver of the right to seek a change of venue. As expressed in that opinion, the application for change of venue should be made 'with reasonable dispatch.' Id. 102 S.W.2d 387. The same decision points out that the matter of granting change of venue lies within the sound judicial discretion of the trial court. The exercise of that discretion will not be disturbed on appeal unless the facts clearly indicate an abuse of it. We note that we regard as extremely serious the claim that a defendant cannot obtain a fair trial in personal injury cases, and if such a ground for change of venue is timely presented and adequately demonstrated as credible, we will not hesitate to require change of venue.

Appellant moved the trial court to require Watts, suing as next friend of his son, to file a bond for costs as prescribed by KRS 453.235. There was no allegation that the next friend was insolvent. The plaintiff prevailed, so if it was error to deny the motion for bond, it was harmless error. Dr. Pepper Bottling Co. of Kentucky v. Hazelip, 284 Ky. 333, 144 S.W.2d 798.

The plaintiff below was remiss in failing to make timely answers to interrogatories. An appropriate motion was made in behalf of appellant that the complaint be dismissed for such failure, as prescribed by CR 37.05. The motion to dismiss was accompanied by an alternative motion for a reassignment of trial date in the event further time was allowed appellee in answering the interrogatories. The trial court directed that the interrogatories be answered (which they promptly were after such order) and granted appellant's motion for continuance in order to enable him to prepare for trial in light of the information contained in the answers to the interrogatories. In this state of case, it seems to us that no prejudicial error occurred of which appellant may complain. This is particularly so in view of the fact that the statute of limitation, insofar as applicable to the infant plaintiff's personal injuries, would not have prevented a refiling anyway.

It is next argued that there was no evidence proving that the alleged negligence of appellant proximately caused injury to Douglas. The thrust of this argument is that no direct evidence was presented to show that Douglas was thrown against the dash of the car. Appellant suggests that the child probably fell out of the seat in an effort to follow after his father. It seems to us that the argument is facetious. Appellant cites Larkin v. Baker, 308 Ky. 364, 214 S.W.2d 379; Hughes Adm'x v. Shouse, Ky., 245 S.W.2d 940; Wright v. Hickman, 308 Ky. 634, 215 S.W.2d 553; Gross v. Barrett, Ky., 350 S.W.2d 457; and Klingenfus v. Dunaway, Ky., 402 S.W.2d 844, in which the general proposition is reiterated that a verdict may not be based upon speculation and that if a plaintiff's injury may as reasonably be attributed to a cause for which the defendant is not responsible as to one for which he is, the plaintiff has failed to present a submissible issue. We agree with the principles enunciated in the just-cited authorities but find them inapplicable here. It seems to us that it is not merely possible, but reasonably probable, in the experience of mankind, that the sudden stopping of Watts' car threw Douglas off the seat and precipitated him against the dash or other portion of the car so as to cut his head and render him unconscious in the circumstances at bar. It is possible that the child could have fallen from the seat while seeking to follow his father, but it is very improbable that a three-year-old child would alight from the car seat with such force as to knock himself unconscious and cut a hole in his head. The plaintiff need not establish a case beyond a reasonable doubt. 'The proximate cause is a cause which would probably, according to the experience of mankind, lead to the event which happened, and remote cause is a cause which would not, according to such experience, lead to such an event.' Stevens' Adm'r v. Watt, 266 Ky. 608, 99 S.W.2d 753, 755. As noted in Schuster v. Steedley, Ky., 406 S.W.2d 387, regarding the type of speculation which is not permitted in jury trials, it was said: 'The kind of speculation that is not allowable occurs when the probabilities of an event's having happened in one or two or more ways are equal and there is no evidence as to which way it happened.' Id. 406...