Olian v. Olian

• Decision Date: 20 April 1933
• Docket Number: 30775
• Parties: Cyril Olian, a Minor, by Leslie Olian, his Father and Natural Guardian, v. Louis G. Olian and Bessie Olian, Appellants
• Court: Missouri Supreme Court

59 S.W.2d 673

332 Mo. 689

Cyril Olian, a Minor, by Leslie Olian, his Father and Natural Guardian, v. Louis G. Olian and Bessie Olian, Appellants

No. 30775

Supreme Court of Missouri

April 20, 1933

Appeal from Circuit Court of City of St. Louis; Hon. O'Neill Ryan, Judge.

Reversed and remanded.

Leahy Saunders & Walther and William O'Herin for appellants.

(1) The court erred in permitting witnesses Leslie Olian and Mabel Olian to testify, over the objection of defendants, that defendant Louis Olian had stated he was covered by insurance and in overruling defendants' motions to discharge the jury, for the reason that said testimony was irrelevant highly prejudicial and done in bad faith. Trent v Lechtmann Printing Co., 141 Mo.App. 437; Bright v. Sammons, 214 S.W. 425; Melvin v. Cater, 221 Mo.App. 1212, 299 S.W. 103; Miller v. Harrison Construction Co., 298 S.W. 259; Edwards v. Smith, 286 S.W. 428; Chambers v. Kennedy, 274 S.W. 726; Crapson v. United Chautauqua Co., 27 S.W. 722; Robinson v. McVay, 44 S.W.2d 238. (2) The verdict is excessive. Bayofski v. Rosenberg, 194 Ill.App. 609; Dill v. Colley, 3 La. App. 305; Cusimano v. A. S. Spies Sales Co., 153 La. 551, 96 So. 118; Hubbard v. Badalamenti, 6 S.W.2d 983; Nabe v. Schnellman, 254 S.W. 731; Llywelyn v. Lowe, 239 S.W. 535; Whitley v. Stein, 34 S.W.2d 998; Erxleben v. Kaster, 21 S.W.2d 195; Carter Coal Co. v. Dozier, 170 Ky. 374, 186 S.W. 140; Lilly v. Kansas City Rys. Co., 209 S.W. 969; Hults v. Miller, 299 S.W. 85. (3) The court erred in giving and reading to the jury plaintiff's Instruction 2, because it tended to give the jury the impression that the court was of the opinion that the maximum figure of $ 25,000 mentioned in the instruction would be a reasonable verdict. Brashear v. Mo. Power & Light Co., 49 S.W.2d 639; Bond v. St. L. & S. F. Ry. Co., 315 Mo. 987, 288 S.W. 777.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) The fact that defendants carried indemnity insurance was properly brought to the knowledge and attention of the jury by a proper and approved course of procedure on the examination of the panel on the voir dire. Hill v. Jackson, 272 S.W. 107. (2) When counsel for defendants declined to answer the inquiry of the court addressed to him with respect to the insurance company and his representing it the court had the right then to assume that the Union Indemnity Company was defending the case and that it was represented by the counsel appearing as defendants' counsel. Maurizi v. Coal & Mining Co., 11 S.W.2d 974. (3) Where the fact of insurance is relevant to and tends to support any issue necessary or aidful in the establishment of plaintiff's cause, it becomes proper testimony, however prejudicial it may be to the defendants. Edwards v. Smith, 286 S.W. 428; Hill v. Jackson, 272 S.W. 105; Boten v. Ice Co., 180 Mo.App. 111; Sotebier v. Transit Co., 203 Mo. 721; Standford Milling Co. v. Transit Co., 122 Mo. 273; Garesche v. College, 76 Mo. 335. (4) The statement voluntarily made to plaintiff's parents by defendant Louis G. Olian that he was fully protected by insurance was evidence tending to show ownership of the apartment building and, in effect, an admission of liability. Robinson v. McVey, 44 S.W.2d 238; Hill v. Jackson, 272 S.W. 106; Steinman v. Brownfield, 18 S.W. 528. (5) The court will not disturb the verdict on the ground that it is excessive unless it can be said that it shocks the judicial sense of justice and shows that the trial court, in permitting it to stand, was guilty of an abuse or failure of judicial discretion. Capstick v. Sayman Products Co., 34 S.W.2d 485; Baker v. Railroad Co., 39 S.W.2d 546; Manley v. Wells, 292 S.W. 69. (6) Instruction 2, on the measure of damages, is not, on the record in this case, shown to be prejudicial error, in that it fixes the maximum sum beyond which the jury were directed not to go in assessing the damages. Lassenden v. Railroad, 238 Mo. 624; Partello v. Railway, 217 Mo. 645; Pope v. Railroad Assn., 254 S.W. 47; Gaty v. Railroad, 286 Mo. 520; Hamilton v. Standard Oil Co., 19 S.W.2d 691; Bales v. Public Service Co., 328 Mo. 181; Thompson v. City of Lamar, 322 Mo. 514.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

The plaintiff, a minor, received severe personal injuries by reason of falling backward while at play from the back porch of the third story of a three-story apartment building in which he lived with his parents. The wire screen of such porch gave way when plaintiff leaned against it and he fell some ten feet to the cement pavement below fracturing his skull. This suit is for damages against the owners of the building for their negligence in permitting the premises to be in a defective and dangerous condition. The plaintiff is a nephew of the defendant Louis G. Olian, his father, who brings this suit as natural guardian, being such defendant's brother.

The defendants appeared and filed a general denial and no question arises on the pleadings. The jury returned a verdict for plaintiff for $ 8,500 and defendants appealed.

The evidence shows without contradiction that defendants owned the apartment building in question and rented the various apartments to tenants, one of whom was plaintiff's father. The back porch from which plaintiff fell to his injury was used in common by the two families occupying the upper apartments as a means of ingress and egress to and from the same. The duty of keeping this porch in repair and in safe condition for use was on the defendants. There is no question but that the back screen of this porch which was fastened to a railing and upright posts was allowed to become loose and insecure, of which defendants had notice and had promised to repair same. The plaintiff, a boy thirteen years of age, while at play on this porch, leaned against this insecurely fastened screen, which gave way, and he fell to his injury. Defendants practically admit liability. The only controverted point was the extent of plaintiff's injuries.

The only errors assigned in this court are (1) the court permitted plaintiff to prove by his parents as witnesses that defendant Louis Olian was covered by liability insurance; (2) the verdict is excessive; (3) the giving of an instruction on the measure of damages naming $ 25,000 as the maximum amount to be allowed. The second assignment of error is apparently a corollary of the other two.

The question of injecting into a jury trial for damages the fact that one or more of the defendants holds liability insurance protecting him in the payment of damages, and that part or all of the attorneys in the defense of the case are employed by and in fact representing the defendant at the instance of the insurance company, is by no means a new one in this State. That this question only arises in jury trials and generally in damage suits is historically correct, and the reason is obvious. Of late years, due partly at least to the growth of that kind of insurance, the question arises frequently in this and other courts. It would seem that enough has been written to fairly settle all the ordinary questions of law on this subject, but when it comes to applying the law to a working basis, many difficulties arise.

We think it should be taken as settled in this State that when it comes to qualifying and selecting a jury to try a case, the plaintiff has a right to ascertain in a proper manner whether or not an insurance company, by reason of its interest in the result, is actively conducting or assisting in the defense of the suit, and, if so, to properly question the jurors as to their relationship to or interest in the defending company. To this end the plaintiff should be given a reasonably wide latitude in making inquiry and having the jurors answer on oath. [Smith v. Lammert (Mo.), 41 S.W.2d 791; Joyce v. Biring (Mo. App.), 43 S.W.2d 845, 847; Smith v. Star Cab Co., 323 Mo. 44, 19 S.W.2d 467; Pinter v. Wilson (Mo.), 46 S.W.2d 548; Decker v. Liberty (Mo.), 39 S.W.2d 546.]

In Pinter v. Wilson, supra, this court said: "In view of recent decisions of this court, there can be no doubt that plaintiff was entitled to inquire of the jurors whether or not any of them were employed by said association, which admittedly was interested in the result of the trial, and that the court's refusal to permit such inquiry was reversible error." See the numerous cases there cited.

In Maurizi v. Western Coal & Mining Co. (Mo.), 321 Mo. 378, 11 S.W.2d 268, 274, the reason of the rule is said to be: "The foundation is the right of a litigant to know the relation of the members of the panel to the parties and those interested in the result of the case. . . . On the other hand, if it should appear from the record that counsel has abused the privilege, and the inquiries were not for the purpose of being able to intelligently make peremptory challenges, the action of the court in permitting the inquiries would not be sustained. The court should require counsel for plaintiff to inquire of defendant's counsel, out of hearing of the jury, whether or not the insurance company is interested in the case, and, if so, the name of the company."

Methods which may properly be used in ascertaining what, if any insurance company is interested in the defense of the case is pointed out in Boten v. Ice Co., 180 Mo.App. 96, 166 S.W. 883, and Hill v. Jackson (Mo. App.), 272 S.W. 105, 107. But even on the voir dire examination to qualify jurors, attorneys should be required to act in good faith in not unnecessarily mentioning the question of insurance. It is the common experience of practicing attorneys that it is highly prejudicial to a defendant's case for the jury to be informed that any verdict returned against the defendant will not hurt him but will be paid by an...