Barb v. Farmers Ins. Exchange
| Decision Date | 11 July 1955 |
| Docket Number | No. 44487,No. 1,44487,1 |
| Parties | Marie BARB, Plaintiff-Respondent, v. FARMERS INSURANCE EXCHANGE, Defendant-Appellant, and Insurance Exchange Building, Inc., Defendant-Appellant |
| Court | Missouri Supreme Court |
Roy F. Carter, Sprinkle, Knowles & Carter, Kansas City, for defendant-appellant.
Clyde J. Linde, Robert B. Langworthy, Billy S. Sparks, Kansas City, for appellant and cross-respondent Insurance Exchange Building, Inc., Langworthy, Matz & Linde, Kansas City, of counsel.
Leo Spalding, Guy W. Green, Sam Mandell, Kansas City, for plaintiff-respondent. Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel.
VAN OSDOL, Commissioner.
In this action for personal injuries plaintiff had a verdict awarding $15,000 damages against defendant Farmers Insurance Exchange and defendant Insurance Exchange Building, Inc. Plaintiff had charged general negligence as against both defendants. Defendant Insurance Exchange Building also had a verdict for $15,000 on its cross-claim for indemnity against defendant Farmers Insurance Exchange. These awards were respectively reduced to $10,000 by remittitur in the trial court, and judgments were accordingly rendered. Both defendants have appealed.
Defendant cross-claimant Insurance Exchange Building (hereinafter sometimes referred to as 'Building') had leased a part of the basement of the Insurance Exchange Building at 10th Street and Baltimore Avenue, Kansas City, to defendant Farmers Insurance Exchange (hereinafter sometimes referred to as 'Exchange'). There was an east-west passageway in the basement of the building adjacent to but not included in the area of the basement leased to Exchange. The passageway was provided by Building to be used by the public, including the patrons and employees of Building's various tenants. The passageway connected with a tunnel under Baltimore Avenue, the tunnel affording passage under Baltimore to and from the Dwight Building. Exchange stacked supplies in this passageway, the supplies consisting of stationery contained in cardboard boxes or cartons. The boxes were stacked along the south side of the passageway between two pilasters or columns. Plaintiff testified she had seen the boxes every morning 'I went through there.' They had been there a 'couple of weeks maybe.' Defendants introduced evidence tending to show that, although boxes of supplies had been stacked by Exchange in the passageway from time to time, the boxes which fell, struck and injured plaintiff had been placed in the passageway on the day preceding that of plaintiff's injury.
At about seven-thirty in the morning of July 2, 1948, plaintiff, an employee of one of Building's tenants, was walking through the passageway. She was intending to go on through the tunnel under Baltimore more to the Dwight Building. Plaintiff was struck by falling boxes and was injured.
Plaintiff had alleged,
'3. Plaintiff further states that the defendant, Farmers Insurance Exchange had been and at the time complained of was using part of the basement of said building adjoining and bordering the passageway to said tunnel as a place to keep its supplies, records, and equipment including large paper or cardboard boxes or cartons containing its property, records and supplies; that said boxes and cartons were filled with such material and were stacked on top of each other along said passageway and were so stacked and maintained that if they fell over they would likely strike against and fall upon and injure persons using said passageway.
Defendant Building in its cross-claim against Exchange alleged,
'2. That under a lease entered into by and between this defendant and defendant Farmers Insurance Exchange * * *, whereby this defendant leased to defendant Farmers Insurance Exchange certain portions of the said Insurance Exchange Building * * *, defendant Farmers Insurance Exchange agreed to keep the hallways and passages of the said building free and clear of obstructions, and agreed not to permit anything which would injure any other tenants of said building, and agreed to keep said building and premises in a good state of preservation and cleanliness.
It was stipulated in the lease between defendant Building, lessor, and defendant Exchange, lesses, as follows,
'1. The sidewalks, entries, passages, halls, elevators stairways shall be under the exclusive control of the lessor, and shall not be obstructed by any of the tenants, or used by them for any other purpose than for ingress and egress to and from their respective offices or places of business. * * *
Initially, we are confronted with defendant-appellant Exchange's contention that the trial court erred in sustaining plaintiff's challenge for cause as to four veniremen, it being contended by Exchange that these veniremen were competent to serve as jurors, and further that the challenge for cause came too late. On voir dire it was disclosed that these four veniremen were policyholders in Exchange. Three said this fact would not affect them or influence their feeling for or against Exchange. The fourth was not asked that specifice question. The trial court sustained plaintiff's challenge for cause as to these four veniremen on the theory that Exchange, a reciprocal insurance company, was a 'mutual' company, and that these veniremen were in fact subscribers and stockholders and, consequently, had pecuniary interests in the case. It is provided by Section 494.190 RSMo 1949, V.A.M.S., that to 'witness or person summoned as a witness in any civil cause, and no person who has formed or expressed an opinion concerning the matter, or any material fact in controversy in any such cause, which may influence the judgment of such person, or who is of kin to either party to any such cause within the fourth degree of consanquinity or affinity, shall be sworn as a juror in the same cause.' In the case of Murphy v. Cole, 338 Mo. 13, 88 S.W.2d 1023, 103 A.L.R. 505, it was written that this statute is not all-inclusive. The fact that the statute enumerates certain grounds of disqualification does not exclude other grounds, and if for any reason, whether statutory or not, a venireman is not in a position to enter the jury box with an open mind free from bias or prejudice in favor of or against either party to the cause, and decide the case upon the evidence adduced and the law as contained in the court's instructions, he is not a competent juror. Murphy v. Cole, supra; Edmonds v. Modern Woodmen of America, 125 Mo.App. 214, 102 S.W. 601. See also McCollum v. Shubert, Mo.App., 185 S.W.2d 48. In the instant case, it was not made unequivocally manifest that Exchange is a mutual company, nor was it clear that the challenged veniremen had any interest in the case which would disquality them as jurors as a matter of law. Now we do not say it would have been error to overrule plaintiff's challenge for cause. Nevertheless, the record shows the trial court was earnestly and successfully acting in its discretion in qualifying eighteen veniremen competent to act, if selected as jurors, in fairly and impartially trying the issues of the case. We hold the trial court did not err or abuse its discretion in sustaining plaintiff's challenge. And we are of the opinion that plaintiff's challenge for cause did not come too late. The challenge was made before the jury was sworn and was not untimely. Massmann v. Kansas City Public Service Co., Mo.Sup., 119 S.W.2d 833.
Defendant-appellant Exchange further contends the verdict was influenced or was the result of the misconduct of jurors Smith and Counselman in that these jurors as veniremen on voir dire examination failed to disclose that they or their relatives had been involved in accidents and had made claims therefor. On voir dire, counsel had inquired of the panel as to any claims any venireman had theretofore had against others for personal injury or property damage, and inquiry was also made as to the claims of any venireman's relatives. Veniremen Smith and Counselman remained silent.
Affidavits were filed, and evidence was introduced in support and in refutation of defendant Exchange's assignments in its motion for a new trial relating to the asserted misconduct of veniremen Smith and Counselman. Our careful examination of the testimony indicates that these veniremen did not precisely understand what it was counsel meant by the word 'claim,' or had for the moment forgotten the accidents in which they had been involved. According to their testimony, neither of the veniremen had actually asserted a claim, formal or otherwise, although both of the veniremen had experienced motor-vehicular accidents, and one...
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