Frank v. Corcoran ( 1926 )

Numerous alleged errors are assigned by plaintiff in error, George B. Frank, for a reversal by this court of the judgment of the court below rendered against him. This action is a result of an automobile collision occurring at the intersection of what is known as Cedar Point road and Winn road. The record shows that the plaintiff in error, George B. Frank, who was one of the defendants below, was driving his car, a Cadillac, in a southerly direction on Winn road, and that one Roy St. John, the other defendant in the court below, was driving a Chevrolet car in an easterly direction on Cedar Point road, the accident occurring in the intersection of these two roads at about 8:25 p.m. on July 23, 1924. The action was begun by Clara E. Corcoran against both defendants Frank and St. John. To the petition answers and cross-petitions were filed by the defendants respectively, and in the cross-petitions each seeks to recover from the other damages caused by the collision of the two autos, each claiming negligence on the part of the other which caused the accident and injuries to their respective machines. The plaintiff, Mrs. Corcoran, who is Frank's sister-in-law, occupied the left side of the rear seat; her sister, Mrs. Frank, occupied the right side of the rear seat in his machine. The Cadillac was struck in the right rear by the Chevrolet, owned and driven by St. John. A verdict of $5,000 against the defendant Frank was rendered in favor of Mrs. Corcoran on her petition and a finding by the jury on the cross petitions that neither could recover from the other. Judgment was thereupon rendered accordingly and a motion for new trial overruled.

One of the alleged errors urged by defendant Frank was the admission in evidence of certain statements with reference to whether or not Frank carried liability insurance. The rule is clear, and the law well settled, that the admission of testimony of this kind is clearly erroneous. Schmidt v. Schalm, 20 C.C., (N.S.), 99. This rule, however, must not be so applied as to render conversations incompetent for the sole reason that the parties discussed liability insurance. On examination of the record we discover that the testimony introduced at the trial on this point consisted of conversations and statements made by the parties at the time of the collision. Inasmuch as the court in the instant case ruled out the testimony complained of, we fail to conceive how defendant Frank could be prejudiced.

Plaintiff in error also contends that the court erred in its general charge. The peculiar relationship of the parties with reference to the pleadings, and the reliefs sought by the prayers therein, made it somewhat difficult for the trial court in the giving of his charge. After a careful examination of the charge, however, we fail to find it, as a whole, prejudicial to the party complaining.

It is also urged that the verdict of $5,000, is excessive. We think it unnecessary to review in this opinion the injuries, as detailed in the record by the testimony of the doctor and other witnesses. There is testimony showing that the plaintiff's condition is considerably improved, although there is some doubt in the mind of the attending physician and surgeon as to what the final outcome of her condition will be respecting the injury to her ankle. The record shows that this verdict and judgment did not include any expenses in the nature of hospital bills, doctor bills, nurse hire, etc., as these were excluded by the court from consideration by the jury. We are of the opinion, in view of all the circumstances, as shown by the record, that the judgment is manifestly against the weight of the evidence as to amount. If the plaintiff below will consent to a remittitur of $1,000 as of the date of the judgment, the judgment will be affirmed as modified. Otherwise it will be reversed.

We have considered the other alleged errors and find none prejudicial to the plaintiff in error.

Judgment accordingly.

RICHARDS and WILLIAMS, JJ., concur.