Harris v. SniderHarris v. Snider
Thе suit was for personal injuries received in an automobile accident.
While preparing to strike the jury, plaintiff requested the court to qualify the jurors as tо whether they were stockholders or employees of Maryland Casualty Company, or interested in said company. Defendant interposed objeсtion, upon the ground that such qualification was improper, immaterial, and prejudicial. Thereupon the court stated: “I assume that there was insurancе with this company” ; then overruled the objection, and proceeded to so qualify the , jurors. The request of plaintiff was in effect a motion invoking the aсtion of the court.
The presence of a party in interest, though not of record, gives the opposite party the unquestionable right to have the jurоr qualified as tQ any interest on his part growing out of that situation. Automobile indemnity insurance against legal liability for injuries caused in their operation is a lawful business; may be said to be a favored business, affording needed protection to the injured as well as the insured under present day conditions. The right of the insurer to defеnd in the name of the insured defendant is recognized by law.
The only legitimate inquiry is legal liability vel non as between the parties to the accident. This court, in line with the jurisprudence of the country, condemns every effort to divert the issues from the true inquiry, and thus win from juries verdicts which would not be rendered between the parties before the court, imposing upon insurers burdens they have not assumed in their contracts, and tending in the end to increase insurance rates. With the rights of all partiеs in mind, this court has had occasion to consider with care the best procedure in such cases. When a motion is made to so qualify the jury, it must be regarded аs made on the bona fide belief of responsible counsel that there is occasion to make such inquiry.
If there be no indemnity insurance, a matter direсtly within the knowledge of defendant and counsel appearing for him, this fact should be promptly declared. An issue, thus presented, may be heard by the court uрon evidence adduced by the parties. If there be no denial of indemnity insurance, no issue of fact thus presented, we have approved the practice of giving the incident as little prominence as may be; and this by proceeding to qualify the jury and enter upon the trial of the merits of the causе.
We construe the suggestion of the trial court in this case, as intended to invite a denial, if no insurer was involved. Upon defendant keeping silent, an .entirely prоper course where no denial can be made, the trial court was without error in proceeding to qualify the jury as requested. If no objection to the motion had been interposed at all, it would have probably been the better course for the court to make no such suggestion.
These observations are to elaborate somewhat our former announcements. Beatty v. Palmer,
The complaint, alleging plaintiff was a “guest” of defendant in the ear owned and driven by him, was not demurrable because stating the mere conclusion of the pleader. “Guest” is descriptive of a relationship known to the common understanding. Louisville & N. R. Co. v. Jones,
Special plea No. 3, a plea of contributory negligence, does not allege that the plaintiff, a passenger guеst, had reason to believe the defendant driver did not know he was approaching the curve or would not discover same and slow down so as to safely turn the curve in the road.
Under plea No. 8, which went to the jury, the defendant had the benefit of any contributory negligence properly attributable to plaintiff for failure to give warning of near approach to the curve and bridge.
Under special pleas 4 and 5, defendant had the benefit of the defense sought to be set up in pleas 6 and 7. Whether termed “assumption of risk” or “contributory negligence” in
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going on the trip with defendant in view of his known driving habit's, or in continuing in the car after becoming aware of the danger, is not important. The evidence was all freely admitted on the issue and submitted to the jury under appropriatе instructions. The evidence on this issue, conceding there was evidence tending to support the pleas, presented a jury question. McGeever v. O’Byrne,
Plaintiff is a young woman, some 22 years of age at the time of the injury. One of the injuries for which damages were claimed, indeed, the major injury visible at the time of the triаl, was the disfiguring effect of injuries to the face.
Evidence tended to show a lacerated wound, described by the physician and surgeon as “a very ragged сut in the lower lip, going from one corner of the lip down about an inch almost and running nearly up to the top of the upper lip, extending through the cheek. * * * The bottom lip was cut through to the bone. * * * Those wounds have left scars on plaintiff’s upper lip, lower lip, left cheek and chin; they will be permanent.” On insрection of the scars and pointing out same to the jury, the witness testified that the wound on the upper lip went completely through also, directed attention to a red line on the lower lip, and to a scar about an inch long above the left eyebrow, the result of a wound received iu the accident.
The plaintiff offered in evidence her photograph taken before the accident, showing a full front view of the face. On cross-examination it wаs developed that the photograph had been tinted and touched up by the artist. Motion was then made to exclude the photograph, because not a true likeness disclosed by scientifically accurate processes.
Stress is laid in argument upon the fact that this photograph, thus finished up to givе emphasis to the beauty of face, when contrasted with the face appearing without artificial coloring, at the trial, was misleading, and calculated to work injury to defendant. Certainly the photograph would aid the jury in determining the extent to which the face had been disfigured. The artificial coloring, mаde known to the jury as such, and not claimed to have been added after the accident for purposes of the trial, furnished no sufficient ground to excludе the photograph.
The case of Birmingham Baptist Hospital v. Blackwell,
The evidence of negligence of defendant in driving at night at a spеed of some fifty miles per hour on approaching a short curve at a rather narrow bridge, so .that the car left the road at a tangent and plungеd into the bed of the creek, clearly supports a verdict for plaintiff.
The question of contributory negligence of plaintiff presented in the pleаdings and proof was also for the jury. There is no good reason to disturb their verdict on this phase of the case.
Excessiveness of the verdict as a ground fоr new trial is stressed on this appeal. It appears plaintiff was actually confined from her injuries for only a few days.
There is evidence of anothеr scar from a cut on the shoulder, also of contusions, especially one on the back, from which plaintiff testified she still suffered pain. Evidence of shock, with resultant nervous condition, appears. The jury and trial court were in better position to weigh this evidence. They had the advantage of viewing the sеars.
All questions of sympathy aside, the grave injury to a young woman from such disfiguring scars as the evidence indicates is manifest. We need not enlarge upon this.
We hаve carefully considered the question raised on quantum of damages. Under well-known rules governing review of the verdict of the jury, sustained by the trial judge, we are unwilling to say the verdict for $5,000 was palpably and plainly excessive.
Affirmed.