Trevillian v. Boswell

• Decision Date: 24 November 1931
• Citation: 241 Ky. 237
• Parties: Trevillian v. Boswell.
• Court: United States State Supreme Court — District of Kentucky

Page 237

241 Ky. 237

Trevillian v. Boswell.

Court of Appeals of Kentucky.

Decided November 24, 1931.

1. Evidence. — Statement of truck owner, arriving at scene of accident shortly after collision, that he was insured held not admissible as "res gestae."

"Res gestae" is defined as circumstance, fact or declaration which grows out of the main fact, contemporaneous with it, and which serves to illuminate its character.

2. Trial. — Purposes for which evidence that defendant in action for damages was insured at time of accident is admissible, stated.

In action for damages, evidence that defendant was protected at time of accident by insurance may be admissible under certain circumstances to show kinship, business connection, employment, ownership of property involved in transaction, or to show bias or interest of a witness calculated to influence him in giving of his testimony, or to illustrate or explain any other fact or circumstance bearing on any issue made by the pleadings.

3. Trial. — Statement of counsel and witness' testimony relating to insurance carried by owner of truck involved in collision held objectionable, being irrelevant to any issue in case.

4. Trial. — Counsel in interrogating jurors or witnesses concerning indemnity insurance must do so in utmost good faith and matter must be relevant to issue, in action for automobile collision damages.

5. Attorney and Client. — Client is responsible for counsel's conduct in interrogation of witnesses, argument of case, and conduct of trial.

6. Automobiles. — Giving of signal to warn motorist of approach of truck held unnecessary, where motorist knew thereof before collision.

7. Automobiles. — Truck driver held under duty to exercise reasonable care to avoid collision with approaching automobile (Ky. Stats., sec. 2739g-39).

8. Damages. — Measures of damages for injury to personalty is difference, if any, between reasonable market value thereof immediately before and immediately after injury.

9. Appeal and Error. — Generally, error in instructions is ground for reversal, unless it affirmatively appears that it was not prejudicial (Civil Code of Practice, sec. 514).

10. Automobiles. — Truck driver whose vision is interrupted by cloud of dust must exercise ordinary care under that condition to avoid collision.

11. Automobiles. — Instruction on "unavoidable accident," based on theory that dust interfered with truck driver's vision, held unauthorized by evidence.

An "unavoidable accident" is an occurrence which could not be avoided by that degree of prudence, foresight, care, and caution which the law requires of every one under circumstances of the particular case.

12. Automobiles. — Whether driver of defendant's truck involved in collision was driving beyond center of highway held for jury.

Appeal from Ohio Circuit Court.

KIRK & BARTLETT; HUMPHREY, CRAWFORD & MIDDLETON; and MARVN H. TAYLOR for appellant.

HEAVRIN & MARTIN for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing.

Bennie Boswell, in company with H.C. Crowder on the evening of the 15th day of October, 1929, was traveling in his new Chevrolet four-door sedan, in Ohio county, Ky., on the Hartford and Owensboro highway. He was operating the automobile himself, returning from the Bartlett and Buford sections of Ohio county to Hartford Ky. It was early in the evening, just after dark. At a point on the highway near the village of Buford, between Buford and Mt. Carmel church, he met a truck owned by W.B. Trevillian, and operated by one of his employees. The truck and automobile met on or at a bridge. The highway was surfaced with gravel and rock, the surfaced part being about 18 feet wide, and the highway proper at the point of collision was about 23 feet wide. The truck came out of a side road onto the highway, and traveled it to where the collision occurred. There was attached to the truck a trailer which was fastened to the truck by a coupling pole. Before the two vehicles approached each other, Boswell and his companion saw the headlights of the truck as it came out of the side road onto the highway and turned north toward Owensboro, and also as it came on toward them. On observing the truck, he operated his automobile on the right-hand side of the road, and, as he claims, stopped it within two feet of the edge of the road on the bridge or the approach to it, giving the truck at least 16 feet of the road in which to pass his automobile. He also claims that the chauffeur in charge of the truck appeared to be in a hurry, and was driving at a rapid rate of speed. Two men occupied the seat of the truck with him. Boswell claims the truck was on the left of the center of the road at the time the collision occurred, and that this caused the collision which resulted in "breaking the left front axle, tearing off the running board and fenders, breaking off the left hand doors and completely demolishing the left side of Boswell's car."

Services were being held at Mt. Carmel church, near the scene of the collision; men were standing on the church ground, and, on hearing the impact of the collision, they went to the scene. The track of the truck and the relative positions of the truck and automobile immediately following the collision are described by the parties who were traveling in the automobile and the truck at the time, as well as those who came from the church. The point of contact of the automobile with the truck was on the side of the truck. However, Boswell was unable to say what part of the truck was struck, causing the collision.

Boswell filed this action to recover damages to his automobile resulting from the collision. On a trial by jury, a verdict was returned in his favor for the sum of $350. A judgment was accordingly entered, from which Trevillian appeals.

As grounds for reversal, he insists that counsel of Boswell, the appellee, was guilty of misconduct in the opening statement of the case to the jury, and in the introduction of evidence; that incompetent evidence was admitted and improper instructions were given.

In the opening statement of the case, counsel of appellee used this language:

"At the time of the accident, defendant stated it was his truck, and that he was carrying insurance on his car, and that there would be no trouble to him, for plaintiff to fix up his statement and send it to the company."

H.C. Crowder, a witness for the appellee, was asked and answered as follows:

"Q. Just tell the jury what statement Trevillian made? Attorneys for defendant objected; no ruling. A. He said, `I am in a hurry; I live in Owensboro, I will give you my number,' and he went on to say a member of the insurance —

"The Court: What did he say, if anything about the expense? A. He said I will not give you any trouble. You will have no trouble about this, he had his car insured —

"Q. And that he said you would have no trouble? A. Yes, sir, he said more than that —"

The appellant was not present at the time the collision occurred, but shortly thereafter he arrived thereat, when the alleged statement was made by him. The appellee contends that the statement was admissible as evidence as part of the res gestae. Res gestae may be defined as follows: "A circumstance, fact or declaration which grows out of the main fact, contemporaneous with it, and which serves to illuminate its character." Each case depends on its own circumstances. Illinois Cent. Ry. Co. v. Houchins, 125 Ky. 483, 101 S.W. 924, 31 Ky. Law Rep. 93; National Life & Accident Ins. Co. v. Hedges, 233 Ky. 840, 27 S.W. (2d) 422; Barton v. Com., 238 Ky. 356, 38 S.W. (2d) 218; Stewart v. Com., 235 Ky. 670, 32 S.W. (2d) 29. The statement of appellant, as disclosed by the statements of counsel and by the testimony of Crowder, was in no sense res gestae.

At the time of the making of counsel's opening statement of the case to the jury, the appellant objected and entered a motion to discharge the jury. The court overruled his motion, to which he excepted. At the time the testimony supra of the witness Crowder was admitted, he objected thereto and entered a motion to set aside the swearing of the jury, to discharge it, and to continue the case. His motion was overruled, to which he excepted.

At the conclusion of the hearing of the evidence on the same ground, he again entered his motion to set aside the swearing of the jury, to discharge it, and to continue the case. His motion was again overruled, to which he excepted.

It is not permissible in every action for damages to permit it to be developed that the defendant carried indemnity insurance at the time of the accident. Coral Ridge Clay Products Co. v. Collins, 181 Ky. 818, 205 S.W. 958; Hedger v. Davis, 236 Ky. 432, 33 S.W. (2d) 310; Gayheart v. Smith, 240 Ky. ___, 42 S.W. (2d) 877, 880.

In Gayheart v. Smith, supra, the court said:

"We have repeatedly announced the rule to be that it is error to permit testimony to the effect that the defendant . . . was at the time of the transaction under investigation protected by indemnity insurance, and that it was a mistake on the part of counsel for a plaintiff, when not acting in good faith, to interrogate prospective jurors, or witnesses, in the case for the purpose of bringing such fact to the attention of the jury." Dow Wire Works Co. v. Morgan, 96 S.W. 530, 29 Ky. Law Rep. 854; Owensboro Wagon Co. v. Boling, 107 S.W. 264, 32 Ky. Law Rep. 816; Kentucky Wagon Mfg. Co. v. Duganics (Ky.), 113 S.W. 128; Danville Light, Power & Traction Co. v. Baldwin, 178 Ky. 184, 198 S.W. 713; Fidelity & Deposit Co. v. Com., 231 Ky. 346, 21 S.W. (2d) 452; Duncan Coal Co. v. Thompson's Adm'r, 157 Ky. 304, 162 S.W. 1139; Park v. Schell, 220 Ky. 317, 295 S.W. 161; Tri-State Ref. Co. v. Skaggs, 223 Ky. 731, 4 S.W. (2d) 739; Netter v. Caldwell, 173 Ky. 200, 190 S.W. 721; Hedger v. Davis, supra.

In an action for damages, evidence that the defendant was protected at the time of the transaction under investigation by indemnity...