Stephenson v. De Luxe Parts Co.

Kroger, District Judge. This is an appeal from a judgment in favor of plaintiff for property damages resulting from an automobile collision. There are three principal assignments of error, the first being that the court erred in denying defendant’s request for a mistrial when plaintiff, as a witness, testified that after the accident he talked with the manager of the defendant company, and in response to the question as to what the conversation was, he stated that he informed defendant’s manager that there had been a collision and where, and that the manager then called the insurance company. This was the only reference by plaintiff to there being any insurance involved. Appellant contends that under the holding of this court in the case of Fielding v. Publix Cars, Inc., 130 Neb. 576, 265 N. W. 726, and Bergendahl v. Rabeler, 131 Neb. 538, 268 N. W. 459, this reference to insurance constituted reversible error. The record discloses, however, that a Mr. Culver, who was an officer and manager of defendant company, was called as a witness [750] by the defendant and, in giving his testimony as to what repairs his company had made on plaintiff’s car, volunteered the information that “there seemed to be a little misunderstanding between him (plaintiff) and the insurance company, so we discontinued work on the car.” From the foregoing it will be seen that defendant itself injected the matter of insurance into the case, and under those circumstances any error committed by plaintiff in making reference to insurance was without prejudice to the defendant. The next assignment of error is that the court erred in refusing to admit evidence of contributory negligence. We have carefully examined the record and we fail to discover where any evidence of contributory negligence on the part of the plaintiff was offered or where the trial court refused to accept evidence of contributory negligence and our attention is not called to any such evidence by appellant’s brief. The third assignment of error is that the court erred in failing to submit the issue of contributory negligence to the jury. As previously stated, the record is bare of any evidence of contributory negligence on the part of the plaintiff. The mere fact that contributory negligence may be pleaded as a defense does not justify the submission of that issue to the jury where there is no evidence to support it. Koehn v. City of Hastings, 114 Neb. 106, 206 N. W. 19. The judgment appealed from is Affirmed.