Toomes v. Nunes

THOMPSON, J.

Plaintiffs brought this suit for damages for personal injuries received in an automobile casualty as the alleged result of negligence on the part of the defendants. The defendants denied the material allegations of the complaint and filed a cross-complaint, charging plaintiffs with damages for injuries which they also sustained in the same accident. The jury returned a verdict against the plaintiffs upon their complaint, and awarded damages to defendants on their cross-complaint in the sum $2,500 and costs of suit. Judgment was rendered accordingly. From that judgment plaintiffs have appealed.

The only grounds urged for reversal of the judgment are that the court erred in permitting evidence to remain in the record that plaintiffs were insured against loss sustained as a result of the automobile accident, and that the jurors were guilty of prejudicial misconduct in considering that evidence

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of indemnity insurance in arriving at their verdict as shown by their affidavits presented upon motion for a new trial.

It appears that plaintiffs alleged in their complaint special damages to their automobile in the sum of $190. Mr. Toomes testified that the market value of their machine before the accident was $225, and that it was of no value after the collision occurred. On cross-examination the attention of the witness was called to the fact that he had alleged in his complaint that the damage to his automobile was only the sum of $190. He was then asked: “Now how do you arrive at the figure of $190.00?” To this question he replied: “Because I—On my application

the company allowed me $190.00

and salvage. Q. That is your insurance carrier, is that correct? A. Yes, my insurance carrier.”

To the last-mentioned question and answer the plaintiffs’ attorney failed to object. He did, however, move to strike out the question and answer on the sole ground that they were “improper”. There was no suggestion as to the reason they were considered improper. There was no assignment of error on the ground that the question and answer disclosed the fact that the plaintiffs were insured. The motion to strike the evidence from the record was therefore ineffectual. The defendants were entitled to have the specific ground of the objection to the evidence stated on the motion to strike it from the record. It is said in 2 California Jurisprudence, page 264, section 82: