Cluster v. Upton

Boxd, O. J., delivered the opinion of the Court. Ou an appeal by a defendant from a judgment for damages from personal injuries sustained by the plaintiff in a collision of automobiles, two rulings are questioned on exceptions taken at the trial; one, the overruling of a motion to terminate the trial for unfair reference to an irrelevant and misleading fact; and the other, the granting of instructions, which permitted an allowance of damages for permanency in the effects of the injuries, and the denial of special exceptions to the instructions because of lack of evidence to support a finding of permanency. ⁵⁶⁸ During the examination as a witness of the driver of the automobile in which plaintiff was riding, plaintiff’s counsel brought out testimony that the defendant, after the accident, had given the witness a slip of paper bearing a telephone number, and the name of some one else that he was to call up. Construing this as a veiled reference to the fact that the defendant was insured against liability such as that being enforced in the suit, a motion to terminate the trial was made because of it. The number and name on the paper were not disclosed to the jury, and are unintelligible when disclosed now.

It is difficult to imagine any purpose in referring to the paper other than the improper one supposed, and there is some possibility that it may have carried to the jury the suggestion feared, and it should not have been brought out; but the possibility of injury from it seems to this court too slender to have required termination of the trial as unsatisfactory, and the court cannot say that the trial court’s discretion was improperly exercised. Ho error is found in the ruling on the motion. It was testified that, along with some bruises, the plaintiff . sustained a fracture, or cracking, of a bone in his right hand, not at a joint; and permanency in the injuries, if any existed, lies there. The plaintiff himself testified that his hand was mashed flat, and he was unable to use it for six weeks, that he still had difficulty with it at the time of trial, eleven months later, and had no grip in it then.

A finger was still crooked. A physician produced by him testified that the period of disability in which he was unable to use the hand was six weeks, and there were three weeks of partial disability. The physician added that the man had eoihplained since then of pain, arthritis, and neuritis, in his wrist .and hand, and of numb feelings in the