Opinion
February 8, 1951 —
March 6, 1951.
Appeal from a judgment of the circuit court for Manitowoc county: HENRY A. DETLING, Circuit Judge. Affirmed.
John R. Cashman of Manitowoc, for the defendants' appellants.
Edward Meyer of Manitowoc, for the plaintiff-respondent.
For the interpleaded defendants-respondents there was a brief by Nash, Clark, Rankin Nash of Manitowoc, and oral argument by Walter J. Nash.
Action commenced May 13, 1949, by Lorraine Peurala against Lewellyn J. Hurley and Great American Indemnity Company, a foreign corporation, for damages for personal injury. Judgment was in favor of the plaintiff. Defendant appeals.
The plaintiff sustained injuries as a result of a collision between the car in which she was riding as guest of Marvin Van Deurzen and the car driven by defendant Hurley. Upon motion of defendant, an amended summons and complaint was served June 23, 1949, which included Marvin Van Deurzen and the insurer the Phoenix Indemnity Company, a foreign corporation, as interpleaded defendants. Defendants Hurley and his insurer answered the complaint and set forth in a cross complaint a cause of action for contribution against the impleaded defendants.
The cross complaint, among other things, alleges:
"That at the time and place alleged in plaintiff's complaint the said interpleaded defendant Marvin Van Deurzen operated the automobile owned by the said George Van Deurzen in a careless and negligent manner in that at said time and place he operated said automobile
"(a) without maintaining a proper lookout;
"(b) without keeping the same under proper control, guidance, and management;
"(c) without yielding the right of way to the defendant Lewellyn J. Hurley;
"(d) without operating said automobile at a reasonable rate of speed, taking into consideration the conditions of the weather and of the highway then and there existing, and without keeping his automobile entirely on his right side of the roadway.
"That as a result of the foregoing acts of negligence on the part of the interpleaded defendant Marvin Van Deurzen, the automobile he was at said time operating sideswiped very briefly and delicately the automobile then and there driven by Lewellyn J. Hurley, and then, on information and belief, went out of control due to the speed and lack of control of the interpleaded defendant Marvin Van Deurzen, went off said highway on the left side thereof down an embankment and tipped over."
The collision involved in this action occurred shortly after midnight on the night of January 19, 1949. The night was stormy and the snow was blowing badly so that visibility was very poor. Plaintiff, returning from a basketball game, was riding with the interpleaded defendant Marvin Van Deurzen, going in a southerly direction toward Manitowoc on a three-lane highway. Van Deurzen claims that he was driving twenty-five to thirty miles an hour when at a distance of about one hundred fifty feet he saw the bright lights of an approaching car, and that all at once the approaching car hit him in the "left front," and that "no sooner did he hit me, we hit one of these guard posts, then we snapped it off and rolled over." His testimony was corroborated by the passengers in his car. Van Deurzen's car landed upside down at the bottom of a creek ten to fifteen feet deep in which there was some ice and water. All of the riders in his car got out, and one of the boys in the car went back to the tavern from which they had come and got a car to take the injured plaintiff to the hospital. The testimony is that when Van Deurzen and those riding with him got out of the ditch and up on the road, there was no car anywhere around, and that none of the passengers of a second car belonging to the Van Deurzen party, upon reaching the scene of the accident four or five minutes after the collision, saw any other car on the road. When the traffic officers arrived it was still snowing and blowing hard, and Officer Suchomel testified that it was impossible to make any marks or find any skid marks on the highway. However one of the officers found a hubcap from an Oldsmobile of 1938 or later model near the scene of the accident.
Defendant Hurley claims that at about the same time on the night of January 19, 1949, and in about the same location he was sideswiped by a car. He was driving a 1941 Oldsmobile. He lost a hubcap in the collision. He now claims that he got out of his car and looked back and saw the taillight of an automobile proceeding toward Manitowoc, that he raised his left front fender up from the tire upon which it had been pushed, and that he then proceeded home to Two Rivers. The next morning he reported to the chief of police at Two Rivers that he had been sideswiped at approximately the time and place described in the Van Deurzen report. He was sent to the sheriff's office, and there Officer Ladwig wrote Hurley's name in the Van Deurzen report as driver No. 2. Hurley claims that he was driving in his right-hand lane at about twenty to twenty-five miles per hour when he saw an automobile approach at a distance of about fifty feet, and that said auto was traveling partly in the center lane and partly in his (Hurley's) lane.
Defendant Hurley had a guest in his car who gave corroborating testimony. It was brought out on the trial that the guest was an unmarried woman; that they had been stopping at various taverns, and that defendant's wife had, previous to this action, started action for divorce. It is claimed that this was prejudicial error. At the time of the collision defendant Hurley and his wife were living together, having been reconciled.
The jury, in its special verdict, found only defendant Hurley causally negligent and exonerated the interpleaded defendants. On June 13, 1950, judgment was entered in favor of the plaintiff against the original defendants as follows: $5,150.95 damages and costs; and against defendant Lewellyn J. Hurley for the further sum of $3,914.40, the liability of the insurer being limited to $5,000. The defendants' cross complaint against the interpleaded defendants was dismissed with costs. On this appeal the defendants assert that there was no competent proof that the defendant's car was involved in the accident, and in an alternative motion they ask for a new trial because there was "competent and ample" evidence that the interpleaded defendant was causally negligent; that "passion and prejudice" caused the jury to bring in a perverse verdict; and that the damages were reversibly excessive.
The jury found that the appellant negligently drove his automobile on a three-lane highway so as to "sideswipe" the car in which the respondent was riding, that this caused that car to leave the highway and overturn in a creek some ten or more feet deep.
The respondent was a young woman twenty-two years of age, and the injuries resulting were concussion, broken left clavicle which left a visible deformity, a cut on the head, and permanent injury to her jaw, seriously affecting the dense tissue around the joints of the jaw and permitting it to slip out. The medical testimony is that the ligaments surrounding the joint were torn at the point where the jaw fits into the skull; that it will slip out and require manipulation to get it back into place. This manipulation will cause soreness because of the stretching of the muscles. Respondent was in the hospital four days and wore a brace two and one-half months to support her back. Her arm was in a sling for several months. During her period of convalescence she developed a rash, and for six weeks after the accident suffered daily headaches. At the time of the trial she was still suffering pain in the shoulder. In view, therefore, of the respondent's suffering and the permanent nature of her injuries, the amount of damages allowed is not considered excessive.
The appellant attempts to make the point that there was a failure of proof that it was his Oldsmobile which came in contact with the car in which respondent was riding. There is little, if there is any, credible testimony at all on which to base a challenge of the finding of the jury that it was appellant's car that collided with the Van Deurzen car, or that the appellant driver was negligent in that he failed to keep in his lane of traffic or that he failed to keep a proper lookout. The evidence is sufficient to sustain the findings as outlined and to warrant the exonerating from all negligence of the driver of the Van Deurzen car, without giving the serious consideration to the allegations in the cross complaint that they are entitled to under the rules of pleading. The questions submitted were certainly jury questions.
The testimony accepted by the jury as the controlling evidence is that appellant's car struck the Van Deurzen car near the culvert where the hubcap of the Oldsmobile was found. The evidence is positive that Hurley lost his hubcap there. He admitted to the deputy sheriff that his car was the car that collided with the Van Deurzen car. The traffic officer, Suchomel, testified that he found the hubcap at the scene of the accident.
The testimony of the others who were returning from the basketball game warrants the conclusion that the appellant did not remain at the scene of the accident. It was with relation to and in connection with testimony given by appellant and the young woman who was with him that the questions as to his drinking and as to her associations with him were put by respondents' attorney, and on which the appellant bases his complaint that bias or prejudice was imported into the case and influenced the verdict. Appellant complains that questions addressed to him as to whether he had indulged in intoxicating liquors were improper, but the condition of mind and the state of nerves of one driving a car are relevant and material. There is no harm resulting in answering those questions if the defendant is free from intoxication, and the jury is entitled to be fully advised if he has overindulged in that matter. He also bases his claim of bias or prejudice upon a question addressed to the young woman who was riding with him. The record with relation to that question is as follows: " Q. 22 years old. You knew that Mr. Hurley's wife had commenced a divorce action against him on account of your going — " "Mr. Cashman: Just a minute; that is objected to as highly prejudicial, improper, incompetent, irrelevant, immaterial, and I think almost grounds for a mistrial, I ask for it." "Court: I think it is immaterial, oh, I can't see the connection." This witness had attempted to support the claims made by the appellant in his testimony, and under ordinary circumstances her interest in and friendship for the appellant would be a proper subject of inquiry on cross-examination. The appellant was not prejudicially affected by what occurred, and if any error was committed, it was in his favor, for testimony of this character is not necessarily to be rejected. Bias in common parlance covers all varieties of prejudice; and interest signifies the specific inclination which is apt to be produced by the relation between the witness and the facts at issue in the litigation. This method of examination, controlled by the sound discretion of the trial judge, results from the reason that it is probable that particular conduct and circumstances form the only means practically available for effectively demonstrating the existence of a bias in favor of a party amounting to an influential interest prompting one to see things favorably to one side or the other. It is usually developed on cross-examination. 3 Wigmore, Evidence (3d ed.), p. 499, sec. 949; 5 Jones, Commentaries on Evidence (2d ed. rev.), p. 4592, sec. 2345.
By the Court. — Judgment affirmed.