Taggart v. Keebler

• Decision Date: 09 March 1926
• Docket Number: No. 12101.,12101.
• Parties: TAGGART v. KEEBLER.
• Court: Indiana Appellate Court

151 N.E. 33

TAGGART

v.KEEBLER.

No. 12101.^*

Appellate Court of Indiana, in Banc.

March 9, 1926.

Appeal from Superior Court, Elkhart County.

Action by George Keebler against Quimby M. Taggart. Judgment for plaintiff, and defendant appeals. Affirmed.

A. L. Gilliom, of Indianapolis, Harman & Jay, of Elkhart, and Fenton, Steers, Herbst & Klee, of Indianapolis, for appellant.

Parker, Crabill, Crumpacker & May, of South Bend, for appellee.

McMAHAN, J.

Appellee was injured while riding a bicycle on one of the streets in South Bend by an automobile operated by appellant, and brought this action, alleging that his injuries were caused by reason of appellant's negligence. The first paragraph of answer was a general denial. The second paragraph sets out an ordinance of the city of South Bend whereby bicycles and other vehicles turning to the left into another street are required to pass to the right and beyond the center of the street intersection before turning, and alleged that appellee's injuries were caused by reason of his violating the provisions of this ordinance. The jury returned a general verdict in favor of appellee for a substantial amount, and also answered certain interrogatories. The errors assigned relate to the overruling of a motion for a new trial, and a motion for judgment on the answers to the interrogatories.

At the time of the accident appellee was traveling south on Michigan street in South Bend on a bicycle. Appellant was driving his automobile in the same direction and behind appellee. The accident took place at the intersection of two streets. Appellee was seriously injured, and was placed in appellant's automobile and taken to a hospital. John Long testified that he saw the accident and went to the hospital in the automobile with appellant and appellee; the latter being unconscious; that a nurse at the hospital made inquiry as to who the injured man was, and, on being informed by appellant that he did not know, she suggested that he might have something on his person by which he could be identified. They looked, and found a card issued by the Studebaker Corporation with appellee's name on it. The nurse asked if he had any money, and appellant said:

“I do not know. I am responsible for this case, and will see that he is taken care of,”

-and directed the nurse to give him the best of care. This witness was later recalled for further examination, and, after having his attention called to the fact that he had theretofore testified to a conversation at the hospital, was asked if he had related everythingthat appellant had said. Appellant objected on the ground “that it was fully brought in on direct examination.” This objection was overruled, and the witness, having answered in the negative, was asked to relate anything further that was there said by appellant. The same objection was made to this question as to the previous one, and, being overruled and an exception saved, the witness answered:

“He said, ‘I am heavily insured.”’

The witness then, in response to a question asking for the exact words of appellant, and over the same objection, answered as follows:

“He said, ‘I want Mr. Keebler to have the best of care, as I am responsible for the accident, and I am heavily insured.”’

A Mr. Jones testified that he went to the hospital in appellant's automobile and heard a conversation between a nurse and appellant when appellee was taken there, and, in answer to a question as to what appellant said when talking to the nurse, and without any objection being made to the question, said:

“Mr. Taggart said, ‘I am responsible for this; I will stand all expenses.’ And he turned around to us fellows and said, ‘You fellows keep track of your time, and wait for me, and I will take you home. I am heavily insured, and will stand all expenses.”’

A motion to strike out the words “I am heavily insured” on the ground that it did not tend to prove or disprove any of the issues and was calculated to bias and mislead the jury was overruled and an exception saved. Another witness who was at the hospital a couple of hours after the accident testified: That appellant came in to see appellee, and that, when appellee spoke about appellant being the man who ran over him, appellant said he was sorry. That appellee cried, and said:

“My God, what will become of my wife and family?”

That appellant then said:

“Don't worry; you shall have the best of care; also the wife and family. I am heavily insured. I will pay for everything and stand for everything.”

On appellant's motion, the reference to being insured was stricken out. Later appellee, without objection, testified concerning the conversation last above mentioned, and stated that appellant at that time, in speaking to him, among other things said:

“I know I ran over you. I will stand all of the expenses, and I will give you the best of care, and I will take care of your wife and family, as I am heavily insured.”

A motion to strike out the reference to insurance on the ground that it was irrelevant and incompetent, did not tend to prove or disprove any of the issues, and was calculated to prejudice the jury was overruled. The part of the answer as to what appellant said about being insured was subsequently withdrawn, and the jury, on motion of appellant, was instructed that they should not consider any matter that had been stricken out. Later appellee in substance repeated his former answer, and appellant's motion to strike out the reference to being insured was overruled. Mrs. Keebler testified to the same statements, and a motion to strike out the reference to being insured was overruled. Appellant's main contention is that the court erred in overruling his motions to strike out the statements of the witnesses to the effect that he had said he was insured.

In Inland Steel Co. v. Gillespie, 181 Ind. 633, 104 N. E. 76, counsel for plaintiff, when examining the jury on their voir dire, asked the jurors if any of them were stockholders, officers, or agents of or connected with, a certain insurance company, which counsel in his question said was “making part of the defense” in the case. An objection to the question being overruled, the defendant unsuccessfully moved that the panel be discharged, and that they be admonished to disregard the statement that the insurance company was making part of the defense. The court refused to discharge the jury or to admonish it as requested, and later refused to instruct the jury to disregard such statements. In reversing the case, the court (104 N. E. 82, 181 Ind. at page 649) said:

“These rulings cannot be justified. In whatever manner the fact of insurance was shown or suggested, appellant was entitled to have the jury cautioned and instructed that such fact had no bearing on the merits of the case. Had the record clearly disclosed that appellant was not harmed by the question as propounded, the fact that it was asked might not, alone, be reversible error, but in view of the vigorous and insistent charge that the amount of the verdict is excessive and the refusal of the court properly to instruct the jury as to such question, we are unable to say that such a showing has been made, and a new trial should have been granted.”

In Martin v. Lilly, 121 N. E. 443, 188 Ind. 139, the plaintiff's counsel in examining the jurors' voir dire asked each of them if they had any interest in a certain automobile insurance company. An objection was made on the ground that it was intended to prejudice the jurors. Counsel for plaintiff then, in the presence of the prospective jurors, offered to prove that the defendant had indemnity insurance. Counsel for defendant objected to this offer, and asked that it be not made in the presence of the jury, and later, in the examination of the jurors, when questions were asked and objections made, plaintiff's counsel offered to put the defendant on the witness stand and prove by him that he carried indemnity insurance in the sum of $5,000. They also offered to prove that the defendant's counsel was not employed by him, but was employed by the insurance company, and offered to call the defendant's counsel as a witness to prove this. The cause was reversed because of misconduct of counsel.

Norris v. West, 129 N. E. 862, 78 Ind. App. 391, cited by appellant, was an action by West against Mrs. Norris for damages occasioned by the negligence of the latter in the operation of an automobile. A witness who saw the accident testified that he saw a machine dragging West, and, in response to questions, without objection, stated that the machine was of a certain make, and had an insurance plate on it. He was then asked the location of the plate. An objection was overruled, but the question went unanswered. W. S. Norris, husband of the appellant, while testifying as a witness for appellee, said there was no insurance plate on his car at the time of the accident. On cross-examination by the attorneys for his wife he was asked if he was insured against loss when his wife was driving. An objection to this question was sustained. The witness was not a party to the action. The question as to whether he carried insurance was not material, and was not cross-examination. So, of course, there was no error in the action of the court in sustaining the objection.

In M. O'Connor v. Gillaspy, 170 Ind. 428, 83 N. E. 738, counsel for plaintiff, in examining the jurors on their voir dire, asked each of them if they were interested in any accident insurance company, and, on cross-examination of a witness for defendant who had testified that the defendant had paid certain hospital expenses and doctor's bills, was asked if the defendant did not have insurance which included the bill of the doctor for his services, and whether the defendant had not been reimbursed for the sum paid to the doctor. The defendant having in its examination of the witness opened the doors, and there being no contention that the verdict was excessive, the...