Pence v. Kansas City Laundry Service Co.

• Citation: 59 S.W.2d 633,332 Mo. 930
• Decision Date: 20 April 1933
• Docket Number: 30849
• Parties: Edithe H. Pence v. Kansas City Laundry Service Company, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

59 S.W.2d 633

332 Mo. 930

Edithe H. Pence v. Kansas City Laundry Service Company, a Corporation, Appellant

No. 30849

Supreme Court of Missouri

April 20, 1933

Appeal from Jackson Circuit Court; Hon. A. Stanford Lyon Judge.

Reversed and remanded.

Henry L. Jost, Robert B. Caldwell and Harold M. Noble for appellant; Sebree, Jost & Sebree and McCune Caldwell & Downing of counsel.

(1) The court erred in giving Instruction 4 at the request of plaintiff. (a) Such instruction was argumentative misleading, prejudicial and erroneously gave the jury the impression that plaintiff was not chargeable with any negligence, including her failure to make protest or give timely warning to her negligent husband. Fechley v. Springfield Traction Co., 119 Mo.App. 358, 96 S.W. 421; Heyde v. Patten, 39 S.W.2d 813; Burton v. Pryor, 198 S.W. 1117; Smith v. Ozark Water Mills Co., 238 S.W. 573. (b) The instruction directs a verdict for plaintiff, but does not require the jury to find that the negligence of defendant, if so, caused or contributed to cause the injuries complained of, and therefore amounts substantially to a directed verdict. Battles v. United Rys. Co., 178 Mo.App. 596, 161 S.W. 614; Lackey v. United Rys. Co., 288 Mo. 120, 231 S.W. 957; Disano v. Hall, 14 S.W.2d 483; Macklin v. Fogel Const. Co., 326 Mo. 38, 31 S.W.2d 14; State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984. (c) The instruction is partial and highly prejudicial, as it gives the jury the impression that the court believes the plaintiff is entitled to recover. Ruch v. Pryor, 190 S.W. 1037. (2) It was error for the court to submit the case to the jury as it did in Instructions 1, 2 and 3, on the theory that as a matter of law plaintiff was a guest and mere passenger of her husband in his automobile at the time of the collision. Each of those instructions was erroneous. Perrin v. Wells, 22 S.W. 863; Tannehill v. Ry. Co., 279 Mo. 158, 213 S.W. 818; Smith v. Wells, 326 Mo. 525, 31 S.W.2d 1014; Greenstein v. Iron & Foundry Co., 178 S.W. 1179; Schubert v. American Press, 19 S.W.2d 472; Traylor v. White, 185 Mo.App. 325, 170 S.W. 412; Walker v. White, 192 Mo.App. 13, 178 S.W. 254; Good v. Coal Co., 167 Mo.App. 169, 151 S.W. 508. (3) The court erred in giving Instruction 5 at plaintiff's request over defendant's objection. (a) Under plaintiff's evidence, there was no basis for submission of the cause under the humanitarian rule. Steele v. Ry. Co., 265 Mo. 97, 175 S.W. 177; Stearns v. Ry. Co., 166 Iowa 566, 148 N.W. 128; Atwater v. Brokerage Co., 147 Mo.App. 436, 126 S.W. 823, 50 A. L. R. 979. (b) Under the actual admitted physical facts, no case was made under the humanitarian rule. (c) The instruction erroneously eliminated from consideration the negligence of plaintiff continuing up to the very moment of the accident and contributing thereto. Shanks v. Springfield Traction Co., 101 Mo.App. 702, 74 S.W. 386; Sisk v. Industrial Track Const. Co., 316 Mo. 1143, 295 S.W. 751; Laughlin v. Ry. Co., 144 Mo.App. 185, 129 S.W. 1006; Gumm v. Railroad Co., 141 Mo.App. 306, 125 S.W. 796; Holwerson v. Ry. Co., 157 Mo. 216, 57 S.W. 770; Blanchette v. Railroad Co., 126 Me. 40, 136 A. 116; Clark v. Ry. Co., 319 Mo. 865, 6 S.W.2d 954; Pope v. Wabash Ry., 242 Mo. 232, 146 S.W. 790. (d) The instruction calls for undue prominence and emphasis and has the effect of excluding consideration of plaintiff's own negligence. (4) The court erred in permitting counsel for plaintiff to interrogate of the jury panel whether they had in mind any fixed amount beyond which they would not render a verdict as such inquiry did not tend to elicit the proper qualification of jurors and carried the inference that this was a very exceptional lawsuit for which generally accepted standards of compensation did not apply, and that members were not qualified to act as jurors unless willing to return an exceptionally large verdict. Sec. 3889, R. S. 1929; Keegan v. Kavanaugh, 62 Mo. 230; State v. Tally, 22 S.W.2d 787. (5) The verdict of the jury is grossly excessive, unwarranted by the evidence and is the result of passion and prejudice erroneously, continuously and consistently engendered by plaintiff and her counsel throughout the trial. (a) The condition of plaintiff was due entirely to a disease or condition known as eclampsia or toxemia in pregnancy and was not attributable in any way to the accident in question, three of her own doctors, Stowers, Trask and Vandeden, so testified. No one of the twenty doctors who treated or examined plaintiff following the accident testified that they believed the condition they found resulted from the accident, while nearly all who testified, including those who answered the improper and inappropriate hypothetical questions propounded to them by plaintiff's counsel, said that plaintiff had eclampsia or its cardinal symptoms. 1 Wigmore Law of Evidence, p. 1094; DeDonato v. Wells, 328 Mo. 448, 41 S.W.2d 184; O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55. (b) Irrespective of the cause of plaintiff's condition the verdict is grossly excessive and greatly transcends all standards of compensation fixed by this court. Partello v. Ry. Co., 217 Mo. 645, 117 S.W. 1138; Hart v. Ry. Co., 264 S.W. 902. Table of all cases in which verdicts of $ 25,000 or more were rendered and disposition thereof. (c) The verdict was manifestly the result of passion and prejudice of the jury incited consistently throughout the trial, some of the incidents being: Improper interrogation upon voir dire examination about the New York Indemnity Company. Improper inquiry upon voir dire examination indicating this was an exceptional case and jurors were not qualified unless willing to be liberal. Reiteration of long improper hypothetical question constituing in effect inflammatory arguments. Improper and misleading instructions by the court. The improper and highly prejudicial closing arguments of counsel for plaintiff. Myer v. Wells, 277 S.W. 585; Neff v. City of Cameron, 213 Mo. 350, 111 S.W. 1139; Evans v. Town of Trenton, 112 Mo. 390, 20 S.W. 614; Railroad Co. v. Johnson, 279 L.Ed. 318, 73 L.Ed. 710.

Cowgill & Popham, William K. Atwood, John F. Cook and John W. Franciscus for respondent.

(1) The voir dire examination was obviously permissible and proper. (a) The interest of the insurance company was shown of record, and the inquiry was proper. Plannett v McFall, 284 S.W. 850; Smith v. Lammert, 41 S.W.2d 791; Galber v. Grossberg, 24 S.W.2d 96; Smith v. Starr Cab Co., 19 S.W.2d 467; Maurizi v. Mining Co., 11 S.W.2d 268; Tucker v. Kollias, 16 S.W.2d 649; Pinter v. Wilson, 46 S.W.2d 548. (b) Counsel had the right to thoroughly probe the views of prospective jurors. Plannett v. McFall, 284 S.W. 850; Linstroth v. Paper, 218 S.W. 431. (c) Defendant accepted the panel of eighteen as finally constituted without objection to their competency and the present complaint is meritless. Thornton v. Stewart, 240 S.W. 502. (2) There was no error in the giving or refusing of instructions; plaintiff's instructions attacked, 1, 2, 3, 4 and 5, were proper and in approved form; and defendant's refused instructions were bad for multiplicity and in phraseology and contents. (a) Plaintiff's Instructions 1, 2 and 3 follow the law and properly submit the issues. (b) Plaintiff's Instruction 4 follows the law, fully contains causal connection, pointedly refers to the other instructions, and properly explains that a guest using due care may recover on concurring negligence of host and wrongdoer. Corn v. Ry. Co., 228 S.W. 78; Titworth v. Kuehn, 18 S.W.2d 127; Zadert v. Elgasser, 21 S.W.2d 886; Stevens v. Laundry Co., 25 S.W.2d 490. (c) Plaintiff's Instruction 5 was given on abundant evidence and admissions of culpable negligence under the last chance rule, and literally followed the latest rulings of this court. Thompson v. Railroad Co., 18 S.W.2d 405; Banks v. Morris & Co., 257 S.W. 482; Burke v. Pappas, 293 S.W. 142; State ex rel. Weddle v. Trimble, 52 S.W.2d 864; Schulz v. Smercina, 1 S.W.2d 113. (d) Defendant's refused instructions were confusingly multiplicitous and erroneous. (3) The court did not err in ruling on the rejection or admission of evidence. (a) The hypothetical questions were participated in and amended by counsel for defendant, are in proper form, were unobjected to, and are based on actual evidence. Mueller v. Louis Pub. Serv. Co., 44 S.W.2d 875; Nelson v. K. C. Pub. Serv. Co., 30 S.W.2d 1044; Brunswick v. Standard Acc. Ins. Co., 213 S.W. 45 (on binding trial theory). (b) Plaintiff properly and without objection showed Dr. Stowers, her own former physician, was expecting defendant to pay him, thus affecting his bias and interest. Burton v. Phillips, 7 S.W.2d 712; Magill v. Boatmen's Bank, 250 S.W. 41. (c) The effort of defendant to try Dr. Pence, instead of this case, and to show him incompetent by specific instances was obviously improper and the court ruled too favorably for defendant in allowing proof of his general reputation. (d) The court properly excluded the alleged application for insurance, admittedly signed by another, and defendant itself proved that plaintiff never knew of such matter. State v. Stevens, 29 S.W.2d 115. (4) There are no errors regarding alleged improper conduct of counsel. (a) The statements complained of constituted legitimate forensic debate. Paul v. Dunham, 214 S.W. 265; Davis v. Wells, 27 S.W.2d 714; Dreibelbiss v. Banner, 195 S.W. 69; Fischer v. K. C. Pub. Serv. Co., 19 S.W.2d 503. (b) The statements were based literally on evidence in the case. (c) Every objection was sustained, defendant made no further requests, cannot convict the trial court for not making rulings unrequested, and no point is legally presented for review. Sands v. Kansas City, 202 S.W. 294; McKinney v. Laundry Co., 200 S.W. 118. (5) The...