Standard Sanitary Mfg. Co. v. Brian's Adm'r
| Decision Date | 08 May 1928 |
| Citation | 6 S.W.2d 491,224 Ky. 419 |
| Parties | STANDARD SANITARY MFG. CO. et al. v. BRIAN'S ADM'R. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.
Action by Henry R. Brian's administrator against the Standard Sanitary Manufacturing Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.
Humphrey Crawford & Middleton, of Louisville, for appellants.
Burke & Lawton and W. Clarke Otte, all of Louisville, for appellee.
The appellee obtained a judgment for $12,000 against appellants which was credited by $7,500, leaving a net balance of $4,500. The reason for the credit was that appellee had recovered $7,500 from one of the joint tort-feasors in a separate settlement.
Henry R. Brian, a boy 16 years of age, was crushed to death by a truck owned by the Acme-Evans Company on September 11, 1926. At the time of the accident which resulted in his death, he was riding his bicycle south on Eighth street in the city of Louisville. A two-ton truck belonging to the Acme-Evans Company heavily loaded with flour was proceeding north on Eighth street. The accident occurred near the intersection of Eighth and York streets. Young Brian was just north of York street, on the west side of Eighth street, when the truck struck him. A truck belonging to the appellant Standard Sanitary Manufacturing Company was proceeding west on York street, and immediately preceding the accident it turned north on Eighth street at the intersection of Eighth and York. The truck of the Standard Sanitary Manufacturing Company did not come in contact with young Brian, and its part in the accident was to cause the Acme-Evans truck to swerve to avoid a collision, and in so doing the Acme-Evans truck was forced into a collision with the bicycle.
The appellee instituted suit against the Acme-Evans Company, charging it with negligence in the operation of its truck, which negligence resulted in the death of Henry R. Brian. That action was settled by compromise, and $7,500 was paid to appellee, which was accepted in full of all claims which appellee had against the Acme-Evans Company on account of the death of Henry R. Brian and the resulting loss of earning power to his estate. In the contract of settlement, it was set out that the $7,500 was not to cover the entire loss to the estate of Henry R. Brian. When the present suit was filed against the appellants, they relied on the settlement made with the Acme-Evans Company as satisfaction of the entire loss to the estate of Henry R. Brian, but this plea was not sustained.
After setting out with admirable clarity the facts governing in this litigation, counsel for appellants say in their brief that the sole point which they are raising on this appeal is that counsel for appellee was guilty of prejudicial misconduct on the trial of the action, and they rely on that error alone for reversal.
We shall give no consideration to any other point which may have been raised against the judgment of the lower court in this action. There may be other errors in the record, but, if so, all of them have been waived, except the alleged error of prejudicial misconduct on the part of counsel representing appellee.
The alleged misconduct complained of relates to statements made before the jury during the progress of the trial either in his closing argument to the jury or in his opening statement. Affidavits have been filed containing the alleged statements, and a counter affidavit was filed denying or explaining the alleged statements. We are concerned only with that which we find in the bill of exceptions. It is to be regretted that statements made by the attorney in his argument were not taken down by the official stenographer, to the extent, at least, of the statements objected to. The trial court ought not to have been required to depend upon the memory of persons as to what the attorney said in his argument before the jury.
We shall take up the statements complained about as they appear in the bill of exceptions in the order of their appearance. In his opening statement the attorney told the jury that there had been a suit brought against the Acme-Evans Company. He proceeded no further with his statement in relation to that matter. An objection was interposed, which was sustained by the court, and the jury admonished by the court not to consider the statement. We will not treat that objection as serious. The mere reference to the fact that another suit had been instituted without any intimation as to the result thereof certainly was not prejudicial, and particularly must that be so when the court admonished the jury not to consider the statement.
In his closing argument, counsel for appellee stated several times that the jury would regret it if they did not award to appellee damages in full, for deprivation of the earning power of Henry R. Brian, to his estate. It is to be presumed that any jury would regret making a mistake in the assessment of damages. If the jury found that appellants were responsible to appellee for the damages caused to the estate of Henry R. Brian, we fail to see how it could have been prejudicial for the attorney to tell the jury that they would regret it if they did not do what the court had told them to do in the instructions given. We do not concur with counsel for appellants in their statement that this argument was improper, much less prejudicial.
The attorney also said to the jury that the reason why they would regret it later if they did not award the full amount of damages was something that he was not at liberty to explain to them, but, if they did not award full damages, he would explain the reason after the trial. This may have mystified the jury, but it cannot be said that it meant any more than that the attorney was insisting that the jury follow the instructions of the court. The argument was unusual, but it was a misstatement of no fact, and we fail to see in what manner it could have prejudiced the rights of the appellants.
The attorney said to the jury several times that, unless they should return a verdict for as much as $12,000, they should return a verdict for appellants. There is nothing prejudicial in that statement.
We find in the bill of exceptions the statement that nothing set out above was objected to except the reference to the Acme-Evans Company suit in the opening statement. If there were no objections to the statements made, we cannot consider them.
We find these paragraphs in the bill of exceptions:
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