Opinion
Decided April 28, 1925.
Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).
J.P. HASWELL for appellant.
WILLIAM MIX for appellee.
Affirming.
George H. Wilbers, who is a plumber in Louisville, was driving along the Bardstown road in his wagon drawn by a horse on June 2, 1921, about two o'clock in the afternoon, going westward about five or six miles an hour. His helper was seated on the seat by his side. After he had passed the intersection of the Bardstown road with Sherwood avenue, a Ford truck of J.C. Felder, running about twenty miles an hour, undertook to pass his wagon and negligently ran into the rear end of the wagon, knocking it to the side of the street. Wilbers was thrown with great violence from his seat, striking the top of the wagon over the seat with such force as to break off the standards that supported the top. He then fell back upon the seat, striking the plank board at the back of the seat. His helper, who was seated with him, was thrown forward and landed between the horse and the wagon. Wilbers was rendered unconscious, was helped from the wagon to the curbing, where he remained a short time, and he was then taken to the city hospital and from there to his home. The proof for him shows that he received a violent blow from the sharp edge that surrounds the back of the wagon seat when he fell back upon it. He suffered great pain in his back, shoulder and lower part of his spine. As a result of the injury the sphincter muscles contracted and for some months it was necessary to dilate these muscles to secure any action from his bowels. He had to be treated in this way by a physician for several months. He lost considerable time from his work. The treatment continued until some time in January. In this action to recover for his injury there was a verdict and judgment in his favor for $1,100.00. The defendant appeals.
The chief ground for reversal is the following after he testified as to his examination and treatment by his regular physician:
"Q. Have you been examined by any other physicians? A. Yes, sir, I have.
"Q. By whom? A. The insurance company sent up —
"Q. Don't say that. A. Dr. Humphrey and Dr. Zimmerman.
"Q. Who sent them to you? A. The insurance company."
"By Mr. Mix: I did not intend for him to say that and I move to strike that out. Counsel for defendant thereupon moved the court to discharge the jury and to reassign this case to another date for trial.
"By the court: Your motion will have to be overruled, to which ruling of the court the defendant by counsel excepted."
This court has held in a number of cases that it is improper to show in a case like this that the defendant is protected against loss by indemnity insurance. Danville Light, c., Co. v. Baldwin, 178 Ky. 184, and cases cited. But it will be observed that the witness does not say what insurance company sent the physicians up. There are companies who issue policies insuring persons against accidental injuries, and for all that appears here the insurance company in this case may not have been an indemnity company. In addition to this it will be observed that his attorney who asked the question immediately said, "Don't say that," and then added, "I did not intend for him to say that and I move to strike that out." There was no objection to this motion and only a motion to discharge the jury. The jury could not fail to understand from this that the statement of the witness was not to be considered. In view of the extent of the plaintiff's injury the verdict is very reasonable and on the whole case the court does not see that the defendant's substantial rights were prejudiced here. No complaint is made of the instructions and no other error in the admission of testimony is relied on. There was no prejudicial error in refusing to discharge the jury. Belle of Nelson, c., Co. v. Riggs, 104 Ky. 1; L. N. R. R. Co. v. Asher, 178 Ky. 67; C. O. R. R. Co. v. Ryan, 183 Ky. 428.
Judgment affirmed.