*1 346 pro of the turn over sufficient Hart’s lien and to
property free oí Consequently as soon discharge debt, to-wit, $240. Hart’s ceeds to deputy consta proceeds hands of of the sale reached the as the Hart, and a trustee for ble, agent and therefore who was Hart’s subject Molly-ets became agent Company, Ruth not the Hart, duty turn over to constable’s them the trust it was the superior judgment to that of the creditors and Hart’s claim Iowa, Molly-ets Company. [Hoyt Clemens, the Ruth 330.] upon Freeman, supra, principally relied of Maier v. case distinguished House, case of McIntire v. Calif. 11, 14. apparent equity
It from what have said that there is no we regardless question and, bill as to whether any remedy through except point equity, a court of raised parties, judgment of the chancellor was correct and Arnold, concurs; J., affirmed. Trimble, therefore V. absent. J., Gracya Appellant.* Paepke, Respondent, Stadelman, v. James R. City Appeals.
Kansas Court of December 1927. *2 2754, p. 4CJ, Error, Appeal Juris-Cye. section and *Corpus References: 22CJ, 42CJ, 85; Evidence, 1091, 408, p. 23; Damages, 17CJ, n. 798, section n. Vehicles, 10; 86; 761, p. 670, Motor 159, 193, n. p. section n. section 73; 1479, p. 38Cyc, p. 1475, n. Wit 1222, 1; Trial, n. 1017, p. n. section 40Cyc, p. nesses, n. 99. 3$. Reilly respondent. Barney and Miles Ellioii for appellant. Landis cODuncan for in- damages personal for
FRANK, is an to C.-—This action recover juries alleged by plaintiff as a result of col- sustained have been Touring Paige Coupe plaintiff lision and a between a Ford driven belonging Stadelman, hut driven at defendant, Car James R. question by Paddock, agent and serv- defendant,
time James H. as August 22, ant of occurred on defendant The collision Stadelman. Iiyde avenue in the at the intersection of street and Park 3rd city Joseph. of St. At close dismissed the evidence defendant, judgment as to was James IT. Paddock. The verdict and against pre- defendant, After the usual Stadelman. liminary steps, appealed. complaint lodged against
No petition is no claim is made that the prove alleged negligence evidence insufficient to there- such, in. On the record made, only necessary thus it is to state facts pertinent as are disposition to a points raised.
The first, second and assignments third error relate to the subject same may together. assignments be considered Such are, (1) that the court admitting erred in evidence to effect defendant, Stadelman, ; (2) insurance the court erred in refusing to strike out (3) such testimony; that the court erred alleged under of errors refusing jury on account discharge ilie 2, supra. 1 and
assignments on husband, ivho examination Upon direct following occurred: plaintiff, behalf of living at city fireman Paepke. I am a John A. “My name 104% do not know Gracva. My wife’s name Yalley street. East n gentlemansitting Mr. Stadel- had a conversation hut there, third his Ihe injured, at office my shortly wife raan Building. Corhy-Forsee floor of the you anything, if said jury wlial, yon tell I wish would you response to what said and what he to Mr. Stadelman him about accident up him, told I went to see said to him. driving car and lhat— there was me Paddock and he told M.r. binding on Mr. Paddock. object Duncan: party. competent for other It is ‘.‘The doing? Mr. A. Tic said he Mr. Paddock What did *3 like, business--something his friends on some of driving Paddock was that. out the answer.
“Mr. Duncan: We move to strike Objection overruled. competen!. I think it is “The Court: ruling excepted. at the time “To which of the court defendants driving ear on you Mr. Paddock was You he told accident, A.. for Mr. Stadelman? the date of the on some business Yes. Building? Oorhy Yes. place This in his officein the took
n with him? did liaiTe any, What other conversation if going T him asked he about it— whai was to do any involving any effort object We Duncan: “Mr. adjust the matter. regard to an ad- There has been no evidence “The Court: justment. This is not directed to that. Reilly: No, just asking “Mr. he had the conversation no— concerning
Mr. Stadelman and whai accident. he said the “The Court: Proceed. Well, go would have to to see the in- he said
“The I Witness: company. surance object We move strike out that answer. We “Mr. Duncan: We,
to it. discharged further move that the from further consideration of this case.
“The competent Court: tending I think the evidence is show ownership ownership if admitted-— ear. It is admitted Stadelman owns the ear—was ad-
“Mr. Duncan: opening mitted in statement. I make later said I wouldn’t it again. shape It it was was left such doubtful. “The Court: there-was reason that object further for the Duncan: “Mr. ownership pertained to the witness that answer of nothing car. but we will not sustain ,-“Tiie court- The that. go further into will no excepted.” at the time the court defendants ruling winch “To discharge of the for the renew our motion Duncan: We jury.
“The Court: motion denied. The excepted. at the time ruling defendants To is relevant not this evidence is whether question presented The proper so, If its admission competent purpose. liability--insurance. though it show that defendant even tended to plain- ownership of Defendant’s the car was one elements ownership, evi- case. such therefore tiff’s answer denies The tending car at the time dence that defendant owned the to show question was admissible. fact defendant had tending insurance is the car circumstance to show he owned admitted, and was admissible on that issue. this evidence was After defendant’s counsel “It admitted Stadelman owns the car stated: opening- said, —was admitted in T would not statement. later again.” make it
The Court then said: “it shape in such it was doubtful.” left holding On justified this record we think the court was ownership was doubtful whether or not the the car admitted. law is competent well may settled evidence be- ex- ground
cluded when offered on such evidence tend to would prejudice jury against parties. one of the v. Mod- [Jablonowski *4 Co., Cap ern S. W. 97.]
Defendant witness, as a McKinley, called one C. C. whose testi- mony surprise seemed to purpose defendant’s counsel. For the showing such surprise one Landis, defendant’s C.- attorneys, John III, by was called as a witness the defendant and state- ments made witness, McKinley, to him by directly contradictory to testimony given by him on the witness stand. On the cross-ex- following amination witness Landis the occurred: “Q. represent? Whom you your do What is interest in this case? Frankly, A. I don’t I am know. with Landis and Duncan. “Q. Mr. paying you any Stadelman is not No, fee? A. sir. fee, “Q. your Who is paying- the or what is interest? I am salary on in the officeof Landis and Duncan. “Q. your Who is paying father and'-Duncan? I haven’t any idea. I haven’t at all. A. None any idea?
“Q. haven’t You told. paying who idea haven’t being” told without And I could ? A. in this case Mr. Duncan- father your any fee to guess. make a it? what is Well, object to that. Landis: We is sustained.” objection “The Court: The firm your in this case anybody interested Is there your father for and you work your represents and firm ? month for from month to
works object that. “Mr. Landis: is sustained. “The purpose cross-examin- Appellant’s contention is counsel’s ivas to show ing indicated witness, Landis, in the manner above company the .insurance employ firm that either he or his was in the real thereby jury to fact directing' the attention of the insurance com- an unknown but ivas ivas not Stadelman pany. a witness for stand as
Witness Landis saw fit to take the witness having right to show so, plaintiff defendant and liad the done by tend that uould cross-examination fact or circumstance to show his respecting interest bias issues on trial. language Supreme Snyder Wag Court the case of
ner Electric similar Manufacturing S. W. on a situation presented by to that is, think, the record in decisive of this case we point presented. here In that case the court said: “'It is suggested, argument not either brief inor oral of coun- sel, casualty taking company insurance is not the burden of the defense of case, perfect right as it has the do. It has not only right, obligation but upon protect often it, rests its against stockholders wrongful claims in all legitimate ways, and the defense of suits not founded in liability ways; honest is one of those but trial upon of such cases the merits the is entitled to know everything that credibility affects the of witnesses and the weight given to be their testimony, including only their interest not in the subject-matter, parties but in the profit who are to or lose the verdict. goes only This to contractual relations with refer- ence to subject-matter of their but testimony, friendships to their . enmities. . . “When Mr. testified, Bowser had the to ask him if employee not an defendant, and for the same reason and *5 purpose right the same had the him to ask if was he not there for the company produced insurance him. For the plain- same reason tiff had the ask to Dr. Schreck if he was paid not the agent
351 testimony. his subject respect the to with company insurance hon- not have could record in this presented as it is The case relation the disclosure the without the estly placed before company.” to sustained which these witnesses 89, 97, 279 S. W. Co., Mfg. Cap v. Modern In Jablonowski Snyder case, from approvingly quoting Supreme Court, supra, says, respect to witness a or bias of words, “In interest other his state and the parties, trial, to the
the issues on his relation matter's. or collateral feelings [State irrelevant them, are never toward (N. S.) 630, R. A. 583, L. 202, 212, 97 S. W. Mulhall, v. 199 Mo. ” 781; 8 Ann. L. 614, Cas. R. C. 615.] in trial when be that in understand the rule this State de injuries, evidence damages personal of a suit recover for the admissi by plaintiff, indemnity fendant had insurance offered governs bility by rule of such evidence the same is controlled ..thing that admissibility any in case. other evidence offered it or not admissibility is whether determines the of snob evidence any foe prove or material tends to in case is relevant issue tbe may purpose. so, ground that it If it cannot excluded on the be prejudice tend to show that it tends to the defendant because indemnity Cap Mfg. he Co., insurance. v. Modern [Jablonowski 279 S. 89, Ladd, 727, W. v. Garvey 733; Carlson 226 S. W.
Auto Transit W. S. 1042.]
It is many stated in State, cases in in the absence of good showing of inject faith doing, in so error for into the trial of lawsuit, fact that in such suit liability carried If insurance. tbe such fact was rele- evidence of material, vant and plaintiff cotild not be convicted of bad faith offering it. by evidence offered plaintiff, in tending tbe instant case, show that defendant being insurance relevant and
material for purpose stated, plaintiff heretofore guilty was not bad faith offering it, and no error was committed the court admitting it. Defendant many cites support cases of his contention that the admission of such prejudicial evidence was and constitutes reversible error. We carefully have examined these eases and find that are not controlling here because evidence to indemnity relative insur- ance which was there admitted of defendants was not relevant or material purpose, while in the instant ap- ease, pellant having denied his answer owned, that he agent was at the time operating, the car which plaintiff’s caused injuries, evidence that said, when asked husband, what he was going to it, do.about go will have “Won see my com- insurance
352 that tending show lie circumstance admissible as a
pany,” was by question in at time operated it was that the car and owned agent. his testimony Dr. Swint 5
Assignments both relate erred (4) court They that the are: together. may be considered told he was what upon based admitting of Dr. Swint examination; (5) that he found as well as what testimony. such refusing strike out erred in following testimony on direct examination: gave Dr. Swint August that on “That first saw at her home he back, right shoulder, small suffering she ivas from bruises to the her bed; examined oar; that was in he cut behind the that she left shoulder, her her body and bruises and discolorations found ad- he found body; hip limb and her between the knee tender; that- very 10th and 11th tape ribs hesive over two tender at time thereafter; about or three weeks he saw her two suffering still objective symptoms passed away but was all she every very nervous parts; .from that she was tenderness over these January; saw her: her the 18th time he last saw on present.” she still nervous of the ribs was’still was and the tenderness following Dr. occurred: On cross-examination of Swint the you “Q. long Paepke after this accident before How Mrs. was was August. saw her? A. I saw 27th of Dr. Robertson her I not present T I who called me. did when saw don’t know her. Paepke’s temperature. I discolora- take Mrs. She was bed. saw right shoulder, hip, tions on her back. She bruises on her hip, along ribs, discolorations well back towards lower border of tip T hone, the back ilium.- did not do bone. About anything for I I supposed her. was to. was there consulta- She Paepke again Mr. weeks that. tion. called me about three lying then, was down I her. I no so could examine found bruises. loose, They No I ribs were broken. torn can’t were not broken. grown They back. were sore. still ha<J “Q. A rib injury torn or broken is not such an as re- ordinarily Well, permanent question A. sults is it? is a injury, to whether the intercostal nerve involved in the fracture.
“Q. Suppose injured. it should be What would the be? effect pain always. She have there would ordinary That is not the usual injury of an result pretty that kind? A. It is hard to rib injuring break a without way, the nerve but some this rib not broken. injure It is difficult to intercostal breaking nerve without
the rib? A. injure by breaking can You it it loose—it is between.. “ Q. Do injured know whether in tbis case ? A. It was broken loose. The attachment between tenth and eleventh objective symptoms no There Avere Avasbroken. ninth rib ribs and the .for her. any medicine prescribed never her. saw the second time at tome. tAAdcc office and times, at the T tAvice haAreseen her four evi- visible have your did she office she came to When when,I the second saw her than more injury? dence Not *7 nervous ... appeared very time. She you have described
“Q. you All lcnoAv about the tenderness you? The last told A. time? AA’hatshe “Q. A. Yes. Yes. testimony this
‘‘Mr. all of We inore to out of strike Duncan: he examined her last time Avitnessas to tenderness about ribs .the oyer testimony her ribs. —his found tenderness is denied. “The Court.- The motion excepted. riding at tbe time Avhic-h
“To of tlie defendants “Q. Mrs. testimony you Your as AA'hat found is on Avliat lo based Paepke you, I you together? found, told A. found What Avliat and what Yes, she sir. told me— testimony.
“Mr. to strike out entire Duncan: move “The question your testimony Court: The in an- you, he asked RAver out, AA’hicli concerning you he uoav strike moAresto Avhat dis- ribs, your idsit, say, coA'ered on last tenderness, this as about tbe you AAras you you from what found examination of plaintiff? tlic I
“The Witness: ribs; evidence, examined her all the as so far appearance sensation and concerned, of the Avoman are indicated to me painful. it Aras :
“The The is oA'orruledand the motion to strike Court out denied. ruling “To Avhieh of the court defendant at excepted. the time
“Q. What you examination did physician surgeon make to discover this ? tend era By ess A. manipulations my fingers. of “Q. Is you that the Avar found it? A. That I found Avay it.
“Q. only Avay And the you kneAV there ivas tenderness was that she appeared flinched or sensitive? A. Appeared sensitive. “Q. Any person other could thing? do the expect same I
thy could. you injuries But yon found there stated on the witness stand? A. I saAAr injuries; objective symptoms present. Avere you .Bach time that examined Mrs. Paepke the condition you haATetestified to here and the you information got gained AA’as you from AA'hat saaa' and you from AA'hatshe told about and the No, doctor? other the information T got objective AArasfrom the symptoms being visible, my experience I think taught has me to person knoAvAvhether a is sore not. alto- A. Not rely upon you? told what she
“Q. You didn’t anybody said. gether upon she else what some I did you? A. told rely on what she partly Did if faked. known she but I think Avouldhave testimony out the to strike our motion Duncan: renew "V^c witness. “Ti-ie The motion overruled.” that his clearly shows out Dr. above set Swint his own examination based on opinion as to condition side at in her tenderness told him relative of her what she plain- show does not examining he was her. evidence the time physical condi- past Dr. Swint as her tiff made statement to is well admissibility this evidence governing the tion. The rule 124 S. W. App. 140 Mo. Brady v. Traction stated 1070: an describing ex- physician, the result that a
“The rule is made may given patient patient, statements of amination condition to the relate of the examination him in the course *8 physician information patient give the and the at time the patient, determining the the proper for him have in condition past her condition which relate to patient made but statements the in surrounding manner injury the or the or the circumstances it, not admissible.” which she received are 533, 539, App. 167 Mo. Co., v. Cable To the same effect: Poumeroule Co., App. 152 W. Freeman v. Insuranc Mo. S. 383. 545; Murphy 283 W. 996. S. W. Power S. "We.recognize by ap- in the cases cited the doctrine announced pellant physician may testify as to the that a not to statements effect patient past physical him of his relative the condition made opinion application an in then Such rule has no the base thereon. shows that instant case because the record Swint’s ivas Dr. past not on to him relative the condition based statements made plaintiff. assignment and last the
The sixth of error is that verdit is exces- passion prejudice and the and to the sive result due fact that the informed that had insurance. touching injuries niay.be The evidence summarized as : follows that had
Plaintiff she cut on left side a and a bruise head; loose; right her that ribs torn side of her were that her down; right way limb right ivas bruised all the that her arm was shoulder; pained every up and her in bruised since that she Avas accident; in two all time bed Aveeks of the she that has accident; had a ever since the headache earache that before the then; she but has been since that accident was not nervous since the
,355 bowels; that she is with her-back had trouble slie has accident she never that night, that up frequently at' get compelled to the accident. before trouble first she was saw that when he Dr. Robertson testified pain a complained of temporary condition; she that unconscious she,had breathing; pain back considerable and side and her trips seven ear; that he six or long inch the left made a cut an then; since at his various times she been office to see side, right possibly thought was severe strain there bones; spinal ligaments to the tear of the where attach spine; tearing joined ligaments ivas where the ribs loose than she was at that she has more nervous the accident since time; injuries might permanent permanent; that her be become right ribs; pain that be discovered soreness in the he could injury permanent tempo- whether the to her rib not rary. verdict $1000. case The trial court did dis- anything- indicating
cover pas- the verdict was "the result of prejudice indulge sion or and refused to disturb it. We must presumption soundly that the trial court its exercised discretion in doing. plaintiff’s injuries so touching The evidence does not 'Con- us that vince the verdict is excessive. judgment trial be and should is affirmed. Wil- 0.,
liams, concurs. CURIAM,.- 0., PER —The foregoing opinion hereby Frank, adopted opinion All Trimble, court. concur, except P. J., absent. *9 Williams, Edna Respondent, v. National Life and Accident In Appellant.* surance Company, City Appeals. January
Kansas Court 1928.