
    HALL v. GAYES.
    Ohio Appeals, 2nd Dist., Montgomery Co.
    No. 774.
    Decided Sept. 9, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    480. EVIDENCE.
    Where, in action to recover for personal injurie-; and damages to automobile, competent bit of evidence is offered, and, incidental thereto, the existence of a liability company is disclosed, such fact is not prejudicial in absence of some unnecessary act or comments by counsel or witness.
    Error to Common Pleas.
    Judgment modified and affirmed.
    Virgil Dorfmeier and McMahon, Corwin, Landis & Markham, Dayton, for Hall.
    H. II. Hollencamp and W. S. Rhotehamel, Dayton, for Gayes.
   FULL TEXT.

BY THE COURT.

This action was brought in the court below by George Gayes against the plaintiff in error, Robert C. Hall, to recover for personal injuries and damage to his automobile. The action arises out of a collision upon the highway leading from Eaton to Richmond. The plaintiff claims negligence on the part of the defendant as the proximate eattse. The defendant answers by general denial, and also by an affirmative plea of contributory negligence. The case was tried, resulting in a verdict and judgment in favor of plaintiff in the sum of $5,460.00. The defendant below prosecutes error.

The three principal assignments of error are, first, that the trial court erred in admitting evidence as to an insurance company being involved, and in refusing to declare a mistrial and a continuance. • Second, that the trial court erred in its charge, and particularly in the refusal to give special charges Numbers 3 and 5 requested before argument. And third, that the verdict is excessive.

In the trial of the case, (p. 52), Florence Gayes, the wife of plaintiff, testified as follows :

“Q. Where was Mr. Gayes?
“A. He was in the machine. And I got out to see what was wrong, what had happened and the Mister was sitting in the machine and when I went over to Mr. Hall I asked, him: ‘What are you going to do about this car?’ He said: ‘I will notify the insurance people tomorrow.’ ”

There was no objection at the time, but at the close of this witness’s testimony, counsel for defendant asked for the withdrawal of a juror and the continuance of the case. This was refused by the trial court.

The court also makes the statement that the jurors were interrogated as to an insurance ■ company at the time they were ■ qualified. We have carefully examined the record in respect to the answer of the witness. This court has held that where a. competent'bit of evidence is offered, and incidental thereto the existence of a liability company is disclosed, that fact is not prejudicial in the absence of some unnecessary act or comments by counsel or witness. Here, so far as we can disclose from the evidence, the counsel were not responsible for the objectionable evidence, and we find nothing to indicate that the witness in volunteering the evidence was guilty of any intentional misconduct. We therefore hold that there was no such prejudicial error in this respect as would justify reversal.

In respect to the charge of the court, we are in harmony with the general charge, as given by the court, and with the special charges actually given. The question of an emergency arising out of the fact that the driver of one automobile suddenly stopped in front of the automobile driven by the plaintiff in error, was a question of due care on the part of the driver of the defendant’s ear and became a question for the jury under proper instructions by the court as to the principles of law governing such an emergency. We think it would not have been proper for the trial court to have decided as a matter of law that there was such an emergency as would-.justify Gayes in turning suddenly from his course to pass the car so suddenly stopped in the highway. The court having properly submitted the question of due care in the face of such an emergency, there was río prejudicial error in this respect.

Upon the question as to the verdict being excessive, we have examined the evidence with great care. The testimony as to the loss of earning capacity is somewhat doubtful as to the extent of such loss. The medical testimony is in conflict. But upon a careful consideration of the entire evidence, we have reached the conclusion that the verdict is excessive. If the defendant in error will- remit the sum of One Thousand Dollars, the verdict and judgment, as so modified, will be affirmed. Otherwise, the judgment and verdict will be reversed, upon the ground that the same are excessive.

(Ferneding, Kunkle and Allread, JJ., concur.)  