Walters v. Appalachian Power Co.
| Decision Date | 23 February 1915 |
| Citation | 75 W.Va. 676 |
| Court | West Virginia Supreme Court |
| Parties | Walters v. Appalachian Power Co. |
1. Presentation of Evidence Indemnity Against Loss.
In an action against an electric company for personal injury, caused by its alleged negligence in the maintenance and operation of one of its wires, it is prejudicial error to admit evidence, over defendant's objection, to prove that it carried insurance indemnifying it against loss by accident, for the purpose of establishing negligence. (p.678).
2. Negligence Evidence Indemnity Cause of Injury Ownership
of Agency.
Nor is such evidence admissible to prove ownership and control of the particular agency that caused the injury, unless it appears that the contract of indemnity embraces accidents caused by such particular agency. (p. 678).
3. Appeal and Error Presentation for Review Admission of Evi-
dence Exception.
An exception to the admission of improper evidence, appearing in a general bill of exceptions embodying the evidence and specially pointed out in brief, is sufficient to entitle plaintiff in error to consideration thereof by this court, if it appears that such error was called to the attention of the lower court, by stating it as a ground of a motion for a new trial. An exception thus saved, and pointed out, need not be embodied in a special bill of exceptions. (p. 683).
4. Evidence Materiality to Issues Exclusion.
It is proper to reject evidence having no probative value in the determination! of any of the material issues. (p. 683).
5. Negligence Contributory Negligence Conflicting Evidence
Questions for Jury.
Where the testimony respecting defendant's alleged negligence is conflicting, and the facts and circumstances relied on to establish plaintiff's contributory negligence are such that the minds of reasonable men would not agree thereon, the negligence of both are mixed questions of law and fact for jury determination, and it must determine which is the proximate cause. (p. 683).
6. Damages Variance Pleading and Proof.
Proof that defendant was injured by some other part of his body coming in contact with a charged electric wire, when he had averred that he was injured by its striking his foot, is an immaterial variation. (p.684).
7. Electricity Negligence Charged Telephone Wires Highways.
It is negligence for an electric company owning and operating a highly charged electric wire, to suffer a broken telephone wire, even though not owned by it, to fall across its electric wire upon the highway, and remain there as a menace to the public for an unreasonable time. (p.685).
Error to Circuit Court, Mercer County.
Action by W. H. Walters against the Appalachian Power Company. Judgment for plaintiff, and defendant brings error.
Reversed, and new trial awarded.
Bernard McClaugherty and French & Easley, for plaintiff in error.
Greever & Gillespie and Sanders & Crockett, for defendant in error.
This action grows out of the same act of alleged negligence by which William Morrison received a personal injury and, on account of which, he sued and recovered a judgment against this defendant, which was recently affirmed by us on writ of error granted to defendant. Morrison was driving a team along a narrow public road, walking beside his horses. As he was going up a hill he stopped to rest his team, and, seeing the end of a broken telephone wire lying across the ditch and extending into the roadway, and thinking it might become entangled in the wheels of his wagon, and supposing it to be otherwise harmless, he stooped and took hold of it to toss it out of the road. It proved to be highly charged with electricity and so overcame him that he was unable to release himself from it. Plaintiff, who was near by, seeing his perilous situation, ran to his assistance, and, in his efforts to get the wire out of Morrison's hand, came in contact with it himself, and received the alleged injury for which be brought this action and recovered a judgment, to which defendant was awarded this writ of error.
The first error assigned is, that the court permitted improper testimony to go to the jury over defendant's objection. The testimony of witness D. E. French is specially referred to in brief as improper. Mr. French was counsel for defendant, and was examined as a witness on behalf of plaintiff. He was required to state, over objection, by whom he was employed to defend the case, and replied that he was employed by The Fidelity and Casualty Company of New York City. He was then asked what interest that company had in the suit, and, after his objection to the question was overruled, replied that he had no direct information, and only knew from hearsay; and on being further asked the following question: , replied as follows: '' That is my information yes sir.'' Many similar questions were asked of him, which he was required to answer over defendant's objections. The ruling of the court, in each instance, was excepted to, and the exceptions are noted in the bill of exceptions embodying the evidence. The testimony was irrelevant and immaterial, and, as we are unable to see clearly that the jury were not prejudiced by it, it is cause for reversal. The fact that defendant carried accident insurance for its protection, could shed no light on the issue of negligence. It might tend to show that it had less incentive to be careful than it otherwise would have had. But the question of motive, in a negligence case, is not material; the court and jury are concerned only with the question of fact, whether defendant was negligent, and not with any motive it may have had for not being sufficiently careful. Such evidence has frequently been held by the courts of this country to be improper and to constitute prejudicial error. Virginia-Carolina Chemical Co. v. Knight, 106 Va. 674, 56 S. E. 725; Sawyer v. Shoe Co., 90 Me. 368; Trembloy v. Hernden, 162 Mass. 383; and Cosselmon v. Dun fee, 172 N. Y. 507. Counsel for plaintiff practically concede, in their brief, that the evidence is not material on the main issue of negligence, but they insist that it is proper evidence tending to prove the material fact respecting the ownership and control of the elecrtic wire that caused the injury, and, being proper for that purpose, the court did not err in admitting it generally, no request having been made to limit its application to any particular purpose, that it was properly admitted if allowable for any purpose. Defendant denied that it owned or controlled the electric wire at the time and place of injury. This is one of the contested facts in the case, and it is conceded that if it did not own and control the wire, it is not liable. Hence, counsel for plaintiff insist that it was proper to show that the action against defendant is being defended by its insurer, as tending to prove its ownership and control of the wire, that if it did not own the wire it would not have called upon its insurer to defend the case. This, we think, is a non sequitur. If the evidence had shown that the policy covered accidents growing out of the negligent use of the particular wire in question, then the evidence might have been admissible as tending to prove that defendant owned, operated and controlled it. But the evidence is, that about a year before the accident, defendant purchased from the Pocahontas Light & Water Company an electric light and power plant in the town of Pocahontas and the system of wires used in connection therewith for carrying current to its customers for lighting purposes; that the wires causing the injury extended from the power plant to the pumping station, a mile and a half out of the town; that this wire is not especially mentioned in the contract as being either included in, or excluded from, the sale, but that the genera] terms of the contract are sufficiently comprehensive to include it. The accident policy was not produced, and it does not appear from the testimony of Mr. French whether its terms included accidents growing out of the use of the wire in question. It does not appear what property it included. Clearly, therefore, his testimony was not evidence tending to prove ownership. Granting that, in negligence cases, the fact that defendant carried accident insurance may, under certain circumstances, be shown, as tending to prove the responsibility of the insured for the proper care and safe management of the agency causing the injury, still one of the essential prerequisites to its admission for that purpose, is that the policy be proven to apply to the particular agency, the control or ownership of which the insured denies. This is the distinguishing feature of the cases, relied on by counsel for plaintiff as authority for the admissibility of such evidence to prove ownership and control by the insured. The evidence In the case at bar does not measure up to the requirement. Counsel cite the following cases, viz.: Shoemaker v. Bryant Lumber & Shingle Mill Co., 27 Wash. 637, 68 P. 380; Barg v. Bousfield, 65 Minn. 355, 68 N. W. 45; Perkins v. Bice, 187 Mass. 28, 72 N. E. 323; and Akin v. Lee, 206 N. Y. 20, 99 N. E. 85.
The Shoemaker case was a suit by the servant for injury caused by the alleged negligence of the master. An officer and stockholder in the defendant company testified on its behalf, and, for the purpose of showing his interest in the suit, was asked on cross-examination if he would not have to pay his proportion of the judgment if one should be recovered against the company, and, having answered in the affirmative, he was then asked: "Would your company have to pay it?", and answered, "Yes, sir." For the purpose of contradicting him, he was asked this further question: '' Is it not a fact that, if judgment is...
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