Taggart v. Keebler

• Decision Date: 22 December 1926
• Docket Number: No. 25329.,25329.
• Citation: 154 N.E. 485,198 Ind. 633
• Parties: TAGGART v. KEEBLER.
• Court: Indiana Supreme Court

198 Ind. 633

154 N.E. 485

TAGGART

v.KEEBLER.

No. 25329.

Supreme Court of Indiana.

Dec. 22, 1926.

Appeal from Superior Court, Elkhart County.

Action by George Keebler against Quimby N. Taggart. From a judgment for plaintiff and order overruling motion for new trial, defendant appeals. Reversed, with directions.

Superseding opinions of Appellate Court, in 151 N. E. 33, and 152 N. E. 287.

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.

PER CURIAM.

Appellee, who was the plaintiff below, recovered a judgment against appellant, the defendant below, for $5,000 damages on account of injuries sustained when an automobile driven by defendant collided with a bicycle on which plaintiff was riding. Overruling defendant's motion for judgment on the answers to interrogatories returned with the general verdict and overruling his motion for a new trial are assigned as errors.

The complaint alleged, in substance: That shortly after noon on December 2, 1920, plaintiff was riding his bicycle south on Michigan street in the city of South Bend, traveling on a line approximately four feet west of the west rail of the street car track, which was in the center of the street. That defendant was riding in and operating a large automobile in the same direction on that street, and when plaintiff reached a point about 30 feet north of where the south line of Elder street intersects the east line of Michigan street, defendant ran his automobile against plaintiff's bicycle on which he was riding, and thereby caused him to be thrown to the pavement, after which defendant drove the automobile upon and over plaintiff and pushed and dragged him 25 feet. That this was at a place where the city was closely built up and near a schoolhouse, and that defendant was negligently and recklessly driving at a speed exceeding 20 miles per hour. That in approaching plaintiff from behind defendant had a clear and unobstructed view of him, but negligently failed to give any warning or signal of any kind. That thereby plaintiff was injured in certain particulars named, and though he was previously a strong, healthy man earning $125 per month, he had not been able to earn anything since, and was permanently injured so that he probably never would be able to earn any money again. And that he was run upon, struck and injured because of the carelessness and negligence of the defendant, as stated, and not because of any fault or negligence on his part. The answer was a general denial, and a second paragraph setting up a city ordinance requiring that any vehicle turning toward the left into another street should pass to the right of and beyond the center of the street intersection before turning, and alleging that defendant negligently turned to the left in front of plaintiff's automobile to go upon an intersecting street when he was 30 feet north of the center of the intersection, and thereby negligently drove his bicycle immediately in front of plaintiff's automobile without any warning, and was struck and injured by reason of his own negligence in so doing, and not because of any negligence of the defendant. The reply was a general denial. Overruling defendant's motion for a new trial and his motion for judgment on the answers to interrogatories notwithstanding the verdict are assigned as errors.

[1] The jury returned a general verdict in favor of plaintiff and answered 28 interrogatories. One of the answers stated that the left wheel of defendant's automobile was traveling 18 inches from the east rail of the west street car track when the accident occurred; another that plaintiff was traveling 4 feet west of the west rail of the west street car track “before he made any turn to the left.” But in answer to other interrogatories the jury found that plaintiff did not turn his bicycle to the left and in front of the approaching automobile of the defendant just before the collision, and did not turn to the right immediately after turning to the left and just before he was struck, and there was nothing in the answers to the interrogatories contradicting the allegations of the complaint which the general verdict found to be true to the effect that the collision took place only 30 feet north of the south line of the intersecting street, and that defendant ran against plaintiff from behind at the rate of 20 miles an hour when he had an unobstructed view of him, and dragged him 25 feet after running over him; nor was there any finding to the effect that the plaintiff had turned or started to turn into the intersectingstreet at the time he was struck. The answers that were inconsistent with each other nullified each other, and could have no effect in controlling the general verdict. Cleveland, etc., R. Co. v. Wolf, 189 Ind. 585, 593, 128 N. E. 38, 695;General American Tank Car Co. v. Melville (Ind. Sup.) 145 N. E. 890, 893. No error was committed in overruling the motion for judgment on the answers to interrogatories.

Repeatedly witnesses were permitted to testify that at different times and places soon after the accident, in connection with admitting his liability, the defendant had said: “I am heavily insured.” In each instance the defendant objected and reserved an exception, and each of these rulings is specified as a cause for a new trial. Once the statement of which this constituted part was stricken out, and once the part of the answer stating what defendant had said about being insured was withdrawn, after a motion to strike it out on the ground that it did not tend to prove or disprove any of the issues and was calculated to prejudice the jury had been overruled, and at the time it was withdrawn the jury were instructed that they should not consider any matter which had been stricken out. But after such withdrawal the same witness repeated his former answer, and defendant's motion to strike out the reference to being insured was again overruled, one of the witnesses having testified that he went to the hospital with plaintiff and defendant, the plaintiff being unconscious, and that the nurse who received them inquired who the injured man was and if he had any money, when defendant 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. After this witness had been excused he was recalled by the plaintiff and over an objection was permitted to state, in answer to the question whether he had related everything that defendant said at the hospital, that: “He said, ‘I am heavily insured.”’ And he then repeated his former answer as to what defendant had said with the addition of the words, “And I am heavily insured,” to all of which defendant excepted. But the defendant denied having made any of the statements attributed to him by which he admitted his liability for the injury or said that he was insured, in which he was supported in part by other witnesses.

It thus appears that evidence was again and again admitted, over objections on behalf of the defendant, that he had stated a number of times that he “was heavily insured,” and that motions to strike out such testimony were repeatedly overruled.

Evidence that the defendant was insured was not competent and its admission clearly was prejudicial, and, under all the circumstances disclosed by the record at bar, was harmful. Martin v. Lilly, 188 Ind. 139, 144, 146, 121 N. E. 443;Simpson v. Foundation Co., 201 N. Y. 479, 490, 95 N. E. 10, Ann. Cas. 1912B, 321;Akin v. Lee, 206 N. Y. 20, 23, 99 N. E. 85, Ann. Cas. 1914A, 947;Curran v. Lorch, 243 Pa. 247, 90 A. 62;Shay v. Horr, 78 Wash. 667, 139 P. 604;Kellner v. Christiansen, 169 Wis. 390, 172 N. W. 796;Trent v. Lechtman Printing Co., 141 Mo. App. 437, 452, 126 S. W. 238;Carter v. Walker (...