Bobos v. Krey Packing Co.

• Decision Date: 29 June 1929
• Docket Number: 28818
• Parties: Mike Bobos, Jr., v. Krey Packing Company, Appellant
• Court: Missouri Supreme Court

19 S.W.2d 630

323 Mo. 224

Mike Bobos, Jr., v. Krey Packing Company, Appellant

No. 28818

Supreme Court of Missouri

June 29, 1929

Rehearing Denied August 2, 1929.

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.

Affirmed.

Bryan Williams & Cave for appellant.

(1) The court erred in refusing the request of defendant that the panel be discharged because of the clearly improper conduct of counsel for plaintiff in saying in his opening statement to the panel that in this case, "like in most all automobile cases, the American Automobile Insurance Company is interested." Hill v. Jackson, 272 S.W. 105; Bright v. Sammons, 214 S.W. 425; Chambers v Kennedy, 274 S.W. 726; Gore v. Brockman, 138 Mo.App. 231; Trent v. Printing Co., 141 Mo.App. 437; Pilkerton v. Miller, 283 S.W. 455; Pettit v. Sales Co., 281 S.W. 973; Franklin v. Kansas City, 248 S.W. 616; Miller v. Construction Co., 298 S.W. 259. (2) The court erred in refusing the request of defendant that the jury be discharged from further consideration of the case because of the clearly improper conduct of counsel for plaintiff in saying in his opening statement to the jury that the evidence would show that "as this boy lay there eighteen months in the hospital this man Phelps never came back, nor anyone else from the American Automobile Insurance Company never came back to see him." Hill v. Jackson, 272 S.W. 105; Bright v. Sammons, 214 S.W. 425; Chambers v. Kennedy, 274 S.W. 726; Gore v. Brockman, 138 Mo.App. 231; Trent v. Printing Co., 141 Mo.App. 437; Pilkerton v. Miller, 283 S.W. 455; Pettit v. Sales Co., 281 S.W. 973; Franklin v. Kansas City, 248 S.W. 616; Miller v. Construction Co., 298 S.W. 259. (3) The court erred in refusing the request of defendant that the jury be discharged from further consideration of the case because of the clearly improper conduct of counsel for plaintiff in arguing to the jury, in answer to defendant's argument to the jury, that the first petition filed in this case stated that the truck was not stopped, "Now, that is just one of those maneuvers that these wonderful defenders of insurance companies are capable of pulling off." Hill v. Jackson, 272 S.W. 105; Bright v. Sammons, 214 S.W. 425; Chambers v. Kennedy, 274 S.W. 726; Gore v. Brockman, 138 Mo.App. 231; Trent v. Printing Co., 141 Mo.App. 437; Pilkerton v. Miller, 283 S.W. 455; Pettit v. Sales Co., 281 S.W. 973; Franklin v. Kansas City, 248 S.W. 616; Miller v. Construction Co., 298 S.W. 259. (4) The court erred in permitting counsel for plaintiff to argue and comment upon the alleged failure of defendant to call to the witness stand Reinert, the driver of the truck which ran over plaintiff. Atkinson v. Railway Co., 286 Mo. 634; Perkins v. Silverman, 284 Mo. 238; Portland Cement Co. v. Crankfield, 80 So. 451; Sears v. Duling, 79 Vt. 334; Green v. La Claire, 89 Vt. 346; Railway Co. v. Sullivan, 178 S.W. 615; Stubenhaver v. Rys. Co., 213 S.W. 144; Bergfeld v. Dunham, 201 S.W. 640. (5) The court erred in refusing the request of defendant to have the jury discharged for the clearly improper conduct of counsel for plaintiff in arguing and commenting upon the alleged failure of defendant to call to the witness stand Reinert, Price, Wallace and Phelps. Atkinson v. Railway Co., 286 Mo. 634; Perkins v. Silverman, 284 Mo. 238; Portland Cement Co. v. Crankfield, 80 So. 451; Sears v. Duling, 79 Vt. 334; Green v. La Claire, 89 Vt. 346; Railway Co. v. Sullivan, 178 S.W. 615; Stubenhaver v. Rys. Co., 213 S.W. 144; Bergfeld v. Dunham, 201 S.W. 640.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) Reversible error is not shown in the court's rulings on the conduct of plaintiff's counsel on which errors are assigned under appellant's points 1, 2 and 3. Crockett v. Railways Co., 243 S.W. 908; Paul v. Dunham, 214 S.W. 263; Schroeder v. Wells, 298 S.W. 795; Brady v. Traction Co., 140 Mo.App. 429; Durbin v. Railway Co., 275 S.W. 358; Plannett v. McFall, 284 S.W. 854; Straus v. Railroad, 86 Mo. 421; Hucksheld v. Railroad, 90 Mo. 558; Allen v. Autenreith, 280 S.W. 79; Ostertag v. Railroad, 261 Mo. 479; Winkler v. Railroad, 10 S.W.2d 649. (2) There is no reversible error shown on the record in the court's rulings on objections to references by plaintiff's counsel to absent witnesses. Winkler v. Railroad Co., 10 S.W.2d 649; Bright v. Sammons, 214 S.W. 429; State ex rel. Myers v. Daues, 315 Mo. 186.

OPINION

Ragland, J.

This is the second appeal in this case. The first is reported in 317 Mo. 108, 296 S.W. 157-161. There was a mistrial prior to the one in which that appeal was taken; the present appeal therefore grows out of the third trial of the cause.

The action is one for personal injuries. On the 29th day of October, 1920, plaintiff, then a boy sixteen years of age, was in the employ of defendant at its packing plant in the city of St. Louis; having completed his duties for the day, on the date just mentioned, he left the plant and started walking home. When he had gotten a short distance from the plant, he looked back and saw one of defendant's trucks, heavily loaded with meat, approaching; the meat was being taken from the plant to defendant's warehouse or place of storage in another part of the city. As the truck came near, plaintiff left the sidewalk on which he had been walking, stepped out into the street and raised his hand as an indication to the driver that he wished to ride. The truck thereupon slowed down and came to a stop: it was being driven by one Reinert, another of defendant's employees. When the truck had come to a stop, plaintiff grasped the handhold on the side of the cab, put one foot on the step and was pulling himself up so as to take a seat at the side of the driver. While he was in the act of doing so the truck suddenly started forward, causing the plaintiff to fall to the street. A front wheel ran over him, crushing his right hip and otherwise injuring him. He lay in a hospital for eighteen months; he underwent three or four operations: he suffered excruciating pain: he will be an invalid and a cripple during the remainder of his life. The jury awarded him damages in the sum of $ 17,500.

On this appeal no error is assigned with respect to the admission or exclusion of evidence, the giving or refusing of instructions, or the size of the verdict: all of appellant's grievances are based on the alleged misconduct of plaintiff's counsel.

On the trial the defendant endeavored to show that plaintiff attempted to climb onto the truck while it was moving: that it never stopped for him to get on. Whether it had stopped, or was still proceeding along the street, was practically the only contested issue of fact. The only eye-witnesses to the occurrence as a whole were plaintiff and Reinert, the driver.

The defendant carried indemnity insurance in the American Automobile Insurance Company. On the day following plaintiff's injury, one Phelps, a representative of the Insurance Company, went to the hospital for the purpose of getting a statement from plaintiff with reference to the casualty and the manner in which it had happened. According to plaintiff's testimony; Phelps told him in substance that Reinert would be prosecuted unless plaintiff's statement exonerated him; he then questioned plaintiff at length, writing down what purported to be the answers given; at the conclusion of the interrogation plaintiff, without reading or having read to him the paper so written, signed the same at Phelps's request. It seems that the paper contained the statement that the truck had not stopped when plaintiff attempted to get on it. At the time of the trial Phelps was in Philadelphia, but still in the employ of the Insurance Company.

There was evidence tending to show that one Wallace was president of the defendant corporation; that Beckmeyer and Price were employees; that the defendant, being somewhat perturbed as to what Reinert would testify to if called as a witness on the trial, sent Price to him to request that he, Reinert, would come to Wallace for an interview; that upon Reinert's refusing to comply with the request, Wallace sent Beckmeyer to him to ascertain if he was going to be a witness, and if so for him, Beckmeyer, to accompany Reinert to court. Reinert was present in the court room during the trial. He had been subpoenaed by both parties, but neither called him to the witness stand. At the time of the trial he was not in the employ of defendant, and had not been for five years.

At the opening of the trial, plaintiff's counsel requested defendant's counsel to accompany him to the bench for a conference with the court, out of the hearing of the jury, touching the propriety of propounding certain questions to the jurors on their voir dire. Thereupon defendant's counsel, in the presence of the jury panel, and while seated at the counsel table said:

"If you want to prove that an insurance company is interested in this case, I will admit that. The American Automobile Insurance Company is defending this case, and I am appearing here as attorney on behalf of the American Automobile Insurance Company and on behalf of the Krey Packing Company for the excess, and you need not take the time to put this in the record, as I am admitting all you want to prove."

Subsequently, and while defendant's counsel was examining the jurors on their voir dire, the following occurred:

"Mr Ely: I am here representing the Krey Packing Company in the defense of this lawsuit. I am also here representing the American Automobile Insurance Company, who issued an indemnity policy to the Krey Packing Company, agreeing to indemnify the Krey Packing Company for any judgment you might return against them up to the amount of $ 5,000. I want to lay my cards on the table and advise you...