Preuitt v. Marshall

DESMOND, J., pro tem. — This appeal is from a judgment, entered upon a jury verdict, in favor of plaintiffs, in an action in which damages were claimed for the death of Peyton L. Preuitt, who died of pneumonia at a Los Angeles hospital on July 4, 1938. One of the plaintiffs is the widow of deceased; the other two plaintiffs are his daughters.

It is claimed that errors arose in connection with admission and rejection of evidence; that the evidence offered is insufficient to sustain the verdict and judgment; also, that the injection of the element of insurance into the case by the plaintiff widow while a witness on the stand requires a reversal of the judgment; further, that error arose when the trial court denied a motion for a mistrial proffered immediately thereafter.

Appellants’ principal exceptions to the rulings on evidence relate to hypothetical questions propounded by counsel for each side; citing in the one instance, the overruling of an objection by defendants to inclusion of the date June 10th as the date on which pneumonia developed, the claim being that there was no evidence to that effect; in the other, sus[171]taining an objection to the inclusion by defendants of a reference to an injury to the left side of deceased. In view of testimony given on both these subjects, part of which we shall quote in this opinion, we do not feel that any prejudicial error resulted from these rulings.

On May 6, 1938, at about 4:00 o’clock p. m. on a clear day, the deceased was driving his automobile in a southerly direction on one of the streets of Los Angeles, accompanied by one of his employees. As he was traveling through an intersection his car was struck on the left side by another automobile which had approached the intersection in a northerly direction and then turned to the left within the intersection. Neither car traveled more than twenty or twenty-five feet from the point of impact, nor did either car overturn.

Mr. Olympius, the workman who was riding with Mr. Preuitt, stated on direct examination at the trial: “Well, we were quite excited, more or less. I asked Mr. Preuitt, I said, ‘Are you hurt?’ and he said, ‘Yes.’ I said, ‘Where?’ He said, ‘My side and chest, it hurts me.’ So I started to get out and the door kind of jammed on the right side, but I got it opened; and when I got out I started to stand and my knees budded up, and I almost fell down, I guess it was the jolt I got myself, and then I helped Mr. Preuitt out.”