Patton v. Lake

• Decision Date: 30 November 1956
• Citation: 294 S.W.2d 917
• Parties: Ellis G. PATTON, Appellant, v. Joe Dale LAKE, Appellee.
• Court: Supreme Court of Kentucky

Page 917

294 S.W.2d 917

Ellis G. PATTON, Appellant, v. Joe Dale LAKE, Appellee.

Court of Appeals of Kentucky.

Nov. 30, 1956.

Lake Holland & Cook, Hartford, for appellant.

Otto C. Martin, Hartford, for appellee.

CAMMACK, Judge.

The appellant, Ellis G. Patton, recovered $100 for the loss of a part of his right index finger. He is appealing because of the alleged smallness of the sum awarded him and because of alleged errors occurring at the trial.

Patton was a road contractor. He and a partner obtained a contract with the State to grade, drain and surface a road in Ohio County. He had a contract with the Fort Hartford Stone Company, which obligated it to furnish, deliver and spread crushed rock under Patton's supervision. The appellee, Joe Dale Lake, was a truck owner. Under a contract with the Fort Hartford Stone Company he hauled and spread rock for the Company.

In May, 1954, Cecil Schroader, an employee of Lake's, loaded his truck with rock at the Stone Company and drove to Patton's construction location. Patton's regular dump man was absent, and he was performing the dump man's job of setting the tailgate properly to insure a correct rock spread; and also of instructing the truck driver where and how fast to spread the stone. The tail-gate on Schroader's truck had been damaged, and though repairs had been made, occasionally stuck. When the bed on Schroader's truck was partially raised, he requested Patton to go around and 'unstick' it. While Patton was pulling on the chain connecting the gate to the wall of the truck, Schroader pulled up, causing the rock to move back in the bed and forcing the gate open. Patton's right index finger was caught between the chain and the gate and was either partly or completely torn off. Patton immediately went to the hospital, where his finger was amputated at a point between the first and second joints.

Prior to the trial, the following stipulation was signed by counsel for both parties:

'It is stipulated that the plaintiff has received the sum of $675.00 paid by the Aetna Casualty Co., as a result of the injury to his finger, and that any recover here may be credited in the said sum of $675.00 against the item of recovery coverying by said policy and paid by the said Aetna Casualty Co.'

At the trial, Lake's attorney questioned him concerning his conversation with Patton on the day following the accident:

'Q. What else did he tell you? A. Well, he told me he would turn it in to his insurance company and see if they wouldn't pay it.

'Q. Did he have compensation----

'Court: Wait a minute.'

Patton's attorney objected; his motion to exclude the question and answer was sustained; he further moved the trial judge to admonish the jury and to explain the stipulation to them. This motion was sustained by the trial judge, but a motion to discharge the jury was overruled. Then the following colloquy occurred:

Patton's attorney: 'It is true, and I am asking you to admonish the jury that plaintiff had an insurance policy which paid him $675.00, $75.00 of it was for medical bills.

'Court: And $600.00 was for loss of time. Gentlemen he is not asking in this suit anything on that, the fact that he had this insurance is no concern of yours.

Lake's attorney: 'He is asking for medical bills?

'Court: He admits that he has been paid, you will only have submitted to you the damage, outside of insurance, you forget about the reference to insurance, because it does not concern you or this case.'

During the course...