Blech v. Berzon, 22296.

• Citation: 61 S.W.2d 201
• Decision Date: 31 May 1933
• Docket Number: No. 22296.,22296.
• Parties: BLECH v. BERZON.
• Court: Court of Appeal of Missouri (US)

61 S.W.2d 201

BLECH v. BERZON.

No. 22296.

St. Louis Court of Appeals. Missouri.

May 31, 1933.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be published in State Reports."

Suit by Isabelle Blech against Irvin Berzon. From a judgment in favor of plaintiff, defendant appeals.

Reversed and remanded.

Roessel & Minton, of St. Louis, for appellant.

Jesse T. Friday, of St. Louis, for respondent.

KANE, Judge.

Suit for personal injuries alleged to have been sustained by plaintiff because of the negligence of the defendant. Verdict and judgment in favor of the plaintiff in the sum of $2,500. Defendant appeals.

For convenience, parties will be referred to as plaintiff and defendant.

Plaintiff assigns several grounds of negligence, but submitted her case to the jury on the assignment that the defendant operated his automobile at a rate of speed which was high, excessive, and dangerous under the circumstances and conditions, as they existed at the time and place, and at the rate of speed which would endanger the life and limb of plaintiff.

The evidence tends to show that on the 15th day of February, 1930, at 4 o'clock in the afternoon of said day, plaintiff and her husband engaged a Black & White taxicab to take them from down town to their home at No. 3618 St. Louis avenue; that they were driven westwardly on North Market street, she sitting on the right side; that in the block east of Leffingwell avenue the cab was traveling at a speed of twenty miles per hour and they were about five feet distant from the north curb of North Market street; that as they were crossing Leffingwell avenue and had reached a point west of the center of said street, they were collided with by a Ford touring car being driven northwardly in Leffingwell avenue by the defendant, Irvin Berzon; that Berzon's car skidded and turned completely around in the street, striking the left rear wheel and fender of the cab in which plaintiff was a passenger; that she was thrown about in the taxicab and suffered injuries of which she complains.

The record discloses that after the jury panel had been sworn and out of the hearing of the panel, the following occurred:

"The jury panel, having been sworn, the following proceedings were had out of the hearing of the panel:

"Mr. Friday: If the Court please, I now call upon Mr. Roessel, attorney for the defendant, to state whether the Western Casualty & Surety Company is not — whether they are interested in the defense of this case?

"Mr. Roessel: Well, I refuse to answer.

"The Court: You say you refuse to answer?

"Mr. Roessel: Yes, on the ground that it is a privileged communication — just for the sake of the record.

"The Court: You say it is the Western — "Mr. Friday (interrupting): Yes, the Western Casualty and Surety Company.

"Mr. Roessel: We save our exceptions.

"The following proceedings were had within the hearing of the panel.

"Mr. Friday: I will ask you gentlemen, whether you, or any member of your family, are in any way employed by, connected with or own any surety or bonds of the Western Casualty and Surety Company. I take it by your silence that none of you have or are."

Dr. Lloyd Tate was produced and testified as a witness for the defendant and on cross-examination by plaintiff's counsel was asked the following question: "Doctor, do you make these examinations for insurance companies and defendants in personal injury cases?"

This question was objected to by defendant before the witness had answered and the request that the jury be discharged and mistrial declared on the ground that it was injecting the question of insurance into the case. The court overruled the motion to discharge the jury and counsel for plaintiff then withdrew the question.

Defendant assigns as error the refusal of the court to discharge the jury.

There is no merit in this assignment. The question was entirely proper as affecting the credibility of the witness and the weight to be given his testimony. Jablonowski v. Modern Cap Mfg. Co., 312 Mo. 173, 279 S. W. 89; Garvey v. Ladd (Mo. App.) 266 S. W. 727; Lanham v. Automobile Co. (Mo. App.) 21 S.W. (2d) 890; Miller v. Walsh Fire Clay Products Co., 219 Mo. App. 590, 282 S. W. 141; Paepke v. Stadelman, 222 Mo. App. 346, 300 S. W. 845; McPherson v. Premier Service Co. (Mo. App.) 38 S.W.(2d) 277.

We must give due regard to the fact that the learned trial judge, who had an opportunity and...