Snider v. Truex
| Decision Date | 01 December 1943 |
| Docket Number | 27899. |
| Citation | 51 N.E.2d 477,222 Ind. 18 |
| Parties | SNIDER v. TRUEX et al. |
| Court | Indiana Supreme Court |
Appeal from Superior Court, Lake County; William E. Wider Judge.
John Wilford Niemiec, of South Bend, for appellant.
Proctor & Proctor and D. M. Hoover, all of Elkhart, and Parker Crabell, Crumpacher, May, Carlisle & Beamer, of South Bend, for appellees.
The appellee sued appellant and appellee Bankers Life Company of Des Moines, Iowa. The suit grew out of a collision between a 'mail truck' driven by appellee Truex and an automobile driven by appellant. At the time of the accident appellant was employed by appellee Bankers Life Company of Des Moines, Iowa. The matter was submitted to a jury who found in favor of Bankers Life Company of Des Moines, Iowa and in favor of appellee as against appellant.
There are but two questions raised by the brief of appellant:
1. That appellee's attorney was guilty of misconduct prejudicial to appellant.
2. That the appellee was guilty of contributory negligence as a matter of law.
During the trial counsel for appellee called appellant to the witness stand and questioned him with reference to his connections with the Bankers Life Company of Des Moines Iowa. The questions asked pertained to the ownership of the car, by whom payment was made for gasoline, oil and repairs, and whether or not appellant used the car in soliciting insurance and collecting premiums. While the defendants had by answer admitted that the appellant was employed by the Bankers Life Company of Des Moines, Iowa, it was specifically denied that he was acting in the furtherance of the business of the Bankers Life Company of Des Moines, Iowa, at the time of the collision. In the course of this examination of appellant this question was asked: Objection was made and sustained.
The appellant then moved to withdraw the case and discharge the jury for the reason that the asking of the question constituted prejudice which could not be removed by instruction.
From the record we feel that appellee's attorney was attempting to show the relationship of the defendants in order to make a case against the Bankers Life Company of Des Moines, Iowa. If the codefendant carried the insurance on the car, paid for the gasoline and oil that it burned or paid for its repairs, certainly each would have been some evidence that appellant was acting in the furtherance of his master's business at the time of the collision. The authorities cited and relied on by appellant, to-wit: Martin v. Lilly, 1919, 188 Ind. 139, 121 N.E. 443, and Helton v. Mann, 1942, 111 Ind.App. 487, 40 N.E.2d 395, are not controlling. In each of the above-cited cases, the record plainly disclosed the misconduct and that it was prejudicial to the complaining party, while in the instant case the inquiry concerned the relationship of the parties. Under appropriate circumstances, this inquiry may be permissible, and in this instance we can see no error. McDonald v. Swanson, 1937, 103 Ind.App. 171, 1 N.E.2d 684.
The remaining question necessitates an examination of the evidence of appellee on cross-examination. The appellant puts stress on the evidence adduced from appellee on cross-examination, wherein the appellee stated that he saw appellant's car coming toward the intersection but that appellant was looking to his right and not ahead toward the intersection and as far as appellee knew the appellant never did look ahead to the intersection. The cross-examination also disclosed that appellee blew his horn once, and kept on with his business of driving, but that he sort of glanced at appellant's car and...
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