Netter v. Caldwell

• Decision Date: 12 January 1917
• Citation: 190 S.W. 721,173 Ky. 200
• Parties: NETTER v. CALDWELL.
• Court: Kentucky Court of Appeals

190 S.W. 721

173 Ky. 200

NETTER v. CALDWELL.

Court of Appeals of Kentucky.

January 12, 1917

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by Alvin Netter, by, etc., against Junius Caldwell. From a judgment for defendant, plaintiff appeals. Judgment affirmed.

O'Doherty & Yonts and Chas. P. Johnson, all of Louisville, for appellant.

Bennett H. Young and Marion W. Ripy, both of Louisville, for appellee.

SETTLE C.J.

In this action, which was instituted by the infant appellant, Alvin Netter, by his father and next friend, against the appellee Junius Caldwell, a recovery of damages was sought by the infant for injuries alleged to have been sustained by him through the appellee's negligent operation of an automobile. The accident occurred in June, 1913, on Third street, south of York street, in the city of Louisville. It appears from the bill of evidence that as appellee accompanied by J. T. Gathwright, was riding in his automobile north on Third street, the infant appellant, who was assisting his father in delivering vegetables to his customers, came suddenly from the pavement on the east side of Third street on his way to the west side thereof, carrying some boxes of strawberries to be delivered to a customer. In entering the street from the east side he passed between two wagons that were standing at the curbing on that side of the street, and was looking north at the time. As he moved rapidly out from between the wagons into the street, he collided with or was struck by appellee's automobile which was proceeding northward. According to the testimony of appellee and Gathwright, it does not appear that the boy was seen by them before he came in contact with the machine. There was little, if any, contrariety of evidence as to the speed of the automobile at the time of the accident, substantially the whole of it being to the effect that its rate of speed did not exceed five miles an hour; and the fact that it did not proceed more than four or five feet after the collision with the boy demonstrates that it was moving slowly. There was some contrariety of evidence as to what part of the machine came in contact with the appellant, the evidence introduced in his behalf conducing to prove that he was struck by the front of the machine, while that of appellee and his witnesses, Gathwright and Sachs, as strongly conduced to prove that he ran into the machine, striking it between the front and back seats. According to the testimony, the collision resulted in no serious or permanent injury to the appellant. His left arm and left side were considerably bruised, but no bones were broken. The trial resulted in a verdict for the appellee; and from the judgment entered thereon this appeal is prosecuted.

Two grounds are urged by appellant's counsel for a reversal of the judgment: (1) That the trial court erred in refusing to enter, on appellant's motion, an order requiring appellee to give his deposition, "and thereby answer certain questions asked by appellant's counsel"; (2) that the court further erred in refusing to permit appellant's counsel to examine the jurors upon their voir dire as to whether they were stockholders, servants, agents, employés, or interested in the Casualty Insurance Company of America, in which it is claimed appellee held a policy, indemnifying him against any loss that might arise on account of injuries that might be caused others in operating his automobile.

Appellant is not entitled to the reversal asked on the first ground urged by him. While under subsection 8, § 606, Civil Code, he clearly had the right to take the deposition of appellee as if under cross-examination, it is not made to appear from the bill of exceptions that he was deprived of that right by any ruling of the trial court. It does, however, appear from the record that in obedience to a notice that his deposition was desired and a subp na served upon him, appellee went to the office of appellant's counsel for the purpose of giving his deposition as demanded by the latter. After a few preliminary questions, which had no bearing upon the cause of the accident in which appellant was injured, appellee was asked certain questions by appellant's counsel, intended to elicit information as to whether he had, at the time of the accident, an indemnity policy in the Casualty Company of America, protecting him against loss in case of injury resulting to others from the use by him of his automobile, and whether the counsel making defense for appellee in this case were not the regularly retained counsel of the Casualty Company of America, and employed by it to make such defense. The foregoing questions and each of them were objected to by counsel present representing appellee, and upon the advice of the latter he declined to answer them. The questions objected to and not answered are Nos. 5, 6, 7, 8, 9, 10, 11, and 12, contained in the deposition of appellee, which appears in the record. The notary's certificate to the deposition shows that upon appellee's refusal to answer these questions, the deposition was discontinued by agreement of the parties, and, further, that:

"The proceedings were referred to the court for a ruling upon said objections to be presented to the court."

The record fails to show that the deposition was ever presented by appellant to the trial court, or that the court was asked to rule upon the competency of the questions referred to, the objections thereto, or the refusal of appellee to answer them; nor does it appear from the record that appellant ever requested of the court the entering of an order requiring appellee to answer the questions, or any of them, or to complete the deposition. And in the absence of such a showing, appellant cannot complain that the questions were not answered, or that the deposition was not completed.

Moreover appellant could not have been prejudiced by the refusal of appellee to answer the questions or complete the deposition, as the latter testified on the trial, and appellant did not ask a continuance of the case because of his...