Wilkins v. Schwartz

• Decision Date: 06 April 1926
• Docket Number: (No. 5567.)
• Citation: 101 W.Va. 337
• Court: West Virginia Supreme Court
• Parties: Magdalene Wilkins, Who Sties etc. v. J. H. Schwartz.

101 W.Va. 337

Magdalene Wilkins, Who Sties etc.

v.J. H. Schwartz.

(No. 5567.)

Supreme Court of Appeals of West Virginia.

Submitted March 31, 1926.

Decided April 6, 1926.

1. Appeal and Error Trial Jury Should Not in Any Manner be Apprised of Fact That Defendant is Protected by Indemnity Insurance; Apprising Jury of Fact That Defendant is Protected by Indemnity Insurance by Plaintiff or His Counsel Ordinarily Constitutes Reversible Error, Notwithstanding Court's Instruction to Jury Not to Consider it.

The jury should not in any manner be apprised of the fact that the defendant is protected by indemnity insurance, and such action on the part of plaintiff or his counsel will ordinarily constitute reversible error, notwithstanding the court may instruct the jury not to consider the same in arriving at a verdict. (p. 340.-

(Appeal and Error, 4 C. J. § 2972. Liability Insurance, 36 C. J. § 128.)

2. Trial Presence of Witness in Court at Time of Trial is Evidence of Party's Diligence in Procuring His Attendance; Where Witness, Present in Court, Absents Himself During Trial Without Procurement of Party, Latter is Entitled to Postponement and Possibly Continuance, Unless Negligent. The presence of a witness in court at the time of the trial is evidence of a party's diligence in procuring his attendance, and where such witness absents himself during the trial without the procurement of the party, the latter is entitled to postponement and possibly a continuance, unless he was negligent in not sooner discovering such witness' absence, or in making no effort to detain him. (p. 339.)

Woods, Judge, absent.

(Continuances, 13 C. J. § 85. Trial, 38 Cyc. p. 1300.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, Mingo County.

Trespass on the case by Magdalene Wilkins, an infant, suing by her next friend, Helen Wilkins, against J. H. Schwartz, for personal injuries. Judgment for the plaintiff, and defendant brings error.

Reversed and remanded.

William II. Hogg, for plaintiff in error.

Lafe B. Chafin, for defendant in error.

Litz, President:

The plaintiff, Magdalene "Wilkins, an infant suing by her next friend, Helen Wilkins, in trespass on the case, recovered a verdict and judgment against the defendant J. H. Schwartz in the amount of $1,500.00 for personal injury sustained by her while riding in his automobile; to which judgment he prosecutes error.

The accident occurred in the town of Williamson, August 20, 1924. Magdalene Wilkins, a child of about eight years of age, visited the defendant's home in the city on that morning. She states that soon after arriving the defendant requested her to accompany his chauffeur, Clyde Litteral, in the automobile to a certain section of the city for the purpose of pointing out to the driver the home of Frank Schwartz. While driving in an easterly direction on East Fourth Avenue at a speed of from ten to twenty miles per hour, Litteral saw an automobile operated by Dave Lloyd approaching from the east twenty-five or thirty miles an hour. In front of Litteral, on the right, a truck was parked, and immediately ahead another truck was slowing down to stop along the right curb. On the opposite side of the street was parked a third truck. As the space between the trucks on either side was apparently insufficient for two cars to pass each other, the defendant's chauffeur drove to the left beyond the truck on that side of the street, to avoid a collision with Lloyd's car, and by so doing ran into an electric light pole near the curb, causing the plaintiff to be thrown against the windshield of the car and sustain serious cuts about the face and head.

The refusal of the court to postpone the trial on account of the absence of a witness for the defendant, wrho had been summoned and was in attendance at the beginning of the trial; and the improper cross-examination of the defendant as a witness in his own behalf, constitute the grounds of error chiefly relied on for reversal.

The chauffeur, Clyde Litteral, who had been summoned as a witness on behalf of the defendant, was in the court room at the beginning of the trial. At the close of plaintiff's evidence it was discovered that he had disappeared, whereupon the court instructed the sheriff to bring him into court,...