Vick v. Moe

• Decision Date: 16 October 1951
• Docket Number: No. 9229-,9229-
• Citation: 49 N.W.2d 463,74 S.D. 144
• Parties: VICK v. MOE. a.
• Court: South Dakota Supreme Court

Page 463

49 N.W.2d 463

74 S.D. 144

VICK v. MOE.

No. 9229-a.

Supreme Court of South Dakota.

Oct. 16, 1951.

Arthur H. Hasche, Watertown, Bicknell & Holland, Webster, for appellant.

Dunham & Hazen, Clark, for respondent.

RUDOLPH, Presiding Judge.

Plaintiff seeks to recover damages for injuries sustained due to being struck by a truck operated by defendant, as defendant was backing the truck in plaintiff's farmyard. The jury returned a verdict for defendant and plaintiff has appealed.

Three principal questions are presented. First, should a new trial be granted because counsel for defendant asked defendant concerning liability insurance? Second, does the evidence establish that defendant was negligent as a matter of law? Third, was it error to submit to the jury the question of the contributory negligence of the plaintiff?

There are certain undisputed facts which appear of record. Defendant is a farmer and also operates a truck under a Class B permit on a commercial basis. Plaintiff is a farmer living in the same vicinity as defendant, and the two have been acquainted since boyhood. In September 1947 plaintiff employed defendant to transport a bull from plaintiff's farm to Watertown. On the morning of September 12, 1947, defendant drove his truck into plaintiff's farmyard. He drove to the door of plaintiff's house which faces the south. The road into the farmyard leads from a south highway. Defendant drove into the farmyard and north about thirty or thirty-five rods, then he turned west and drove to a few feet from the door of plaintiff's house where he stopped his truck. From the point at which defendant turned west there is an uphill grade to the house. To the southeast of the house about 125 feet there is a granary, which is 10 or 15 feet south of the route taken by defendant as he drove west toward the house. Directly north of the granary and 45 or 50 feet north of the route taken by defendant as he approached the house there is quite a large tree. This route taken by defendant was generally used by vehicles as they approached the house. Plaintiff's car was parked east of this granary. After stopping the truck defendant went into the house and visited for a few minutes with plaintiff and one Gullickson. The bull was at a neighbor's place and it was agreed that plaintiff and Gullickson would take plaintiff's car, go to the place where the bull was located and that defendant would follow in the truck. The three men left the house. Gullickson and plaintiff started toward plaintiff's car, but after going part of the distance from the house to the car Gullickson left plaintiff and went to get the keys from his car. Plaintiff's left eye had been injured and the vision in this eye was impaired. Defendant entered his truck and without starting the motor or sounding the horn let the truck roll down the grade to a point just east of the tree where he turned the rear of the truck to the north intending to leave the farmyard on the road to the south. When he stopped the truck he noticed plaintiff on the ground directly in front of the truck. The truck at this time was 15 or 20 feet east of the tree. Plaintiff was severely injured. There are details and disputed facts in the testimony which will be referred to and discussed under the issues to which they pertain.

We discuss first the question relating to insurance. At the close of defendant's direct examination his counsel inquired and defendant answered as follows:

'Q. By the way, Ted, you don't have any liability insurance, do you? A. I thought I did.

'By Mr. Bicknell: Objected to as not material, improper for any purpose, an obvious attempt to try to influence the jury, and not the fact.

'By the Court: Yes that is wholly immaterial and the jury will not consider any such question at all and he will not be allowed to answer.'

We disregard the fact that the answer appears in the record before the objection. The record discloses that on the voir dire examination of the jury counsel for plaintiff inquired of the jury as follows: 'I will ask you if any of you are employees or stockholders of or agents in any liability insurance company.'

One juror who answered in the affirmative was challenged for cause and dismissed. It further appears from the record that an insurance company with which defendant had a policy had denied liability and had refused to defend this action against defendant which facts were known to plaintiff's counsel. It thus appears that plaintiff injected insurance into the case, and the effect of this fact getting before the jury is too well known to require discussion. The plaintiff having injected insurance into the case the defendant should be privileged to show the actual facts. The answer of defendant was made in good faith, in an attempt to disclose the actual situation. We find no error on this issue. For a good discussion of this issue see Stehouwer v. Lewis, 249 Mich. 76, 227 N.W. 759, 74 A.L.R. 844.

Appellant contends that the evidence establishes as a matter of law that defendant was negligent. We are unable to concur in this contention. Defendant testified that his truck was facing west as it stood in front of the house. That before getting into the truck he observed plaintiff going in a southeasterly direction toward his car which was parked east of the granary. That plaintiff then was quite far away from the truck and out of the 'path where I was going to back.' He further testified that 'I didn't start to back before I was sure that he was away', and, 'I...