Boland v. Jando, 52364

• Decision Date: 08 May 1967
• Docket Number: No. 1,No. 52364,52364,1
• Citation: 414 S.W.2d 560
• Parties: Alma BOLAND, Plaintiff-Appellant, v. Ferenc JANDO, Defendant-Respondent
• Court: Missouri Supreme Court

Page 560

414 S.W.2d 560

Alma BOLAND, Plaintiff-Appellant, v. Ferenc JANDO, Defendant-Respondent.

No. 52364.

Supreme Court of Missouri, Division No. 1.

May 8, 1967.

Sherman Landau, St. Louis, for appellant.

Murphy & Kortenhof, Edward E. Murphy, Ju., St. Louis, for respondent.

HENRY J. WESTHUES, Special Commissioner.

This suit was filed by Alma Boland against Ferenc Jando to recover damages in the sum of $22,500 for loss of consortium alleged to have resulted from personal injuries to her husband. The husband, John A. Boland, filed a suit to recover damages alleged to have been sustained as a result of a collision of Jando's car with Boland's car. That case resulted in a jury verdict and judgment in Boland's favor in the sum of $500 for personal injuries and $200 for property damage. John A. Boland had asked for $35,000. Boland appealed to this Court on the theory that the verdict was grossly inadequate. The judgment in that case was affirmed. See Boland v. Jando, Mo., 395 S.W.2d 206. In the case now before us, there was a jury verdict and judgment in favor of the defendant. A motion for new trial was overruled and plaintiff appealed.

The questions submitted to the jury were as follows:

First, was John A. Boland, plaintiff's husband, injured as a result of the negligence of defendant Jando?

Second, were the injuries of Boland such as to justify a verdict for plaintiff on the theory of loss of consortium?

Third, was Boland guilty of contributory negligence so as to defeat plaintiff's claim?

We find that the evidence in the record was sufficient to submit each of the above questions of fact to a jury for determination. The verdict for the defendant may have been determined on the ground that Boland was guilty of negligence contributing to his injuries, or that Boland's injuries were of such a nature that plaintiff was not damaged thereby. The evidence as to Jando's negligence, Boland's injuries, and contributory negligence on the part of Boland was substantially the same as it was in the case of Boland v. Jando supra, 395 S.W.2d 206. For a full statement of the evidence, we refer the reader to the opinion in that case.

A brief statement with reference to the collision involved in this lawsuit will be sufficient. Plaintiff's evidence was that on March 12, 1964, John A. Boland was driving his car south on Grand Avenue in St. Louis, Missouri. When he stopped at a stop sign at Lierman Avenue, his car was struck at the rear by a car operated by Jando. Defendant Jando introduced evidence that Boland suddenly and without warning slowed his car to a stop and that Jando was unable to stop in time to avert a collision; that at the time of the collision, Jando's car was traveling at a speed of not more than six or seven miles per hour.

We shall relate other evidence in the course of this opinion when considering the points relied on for a reversal of the judgment. The points are seven in number. We shall dispose of them in the order the alleged error occurred in the course of the trial.

A point is made that the trial court erred in denying plaintiff's counsel the right to inquire of the jurors on voir dire whether any of them was employed by or was a stockholder in any insurance company or had any connection with or was an agent for a casualty insurance company. The record shows that plaintiff's counsel submitted to the court a list of questions he desired to ask of the jurors. Defendant's counsel objected and stated that 'I think the only question Mr. Landau should be permitted to ask this jury is whether or not anyone of the jurors or any member of their immediate family works for or has a financial interest in the Hartford Accident and Indemnity Company.'

The list of questions submitted was as follows:

"1. Are any of you employed by, or stockholders in, an insurance company which is engaged in the casualty insurance business?

'2. Are any of you engaged in the general insurance agency business or are any of you an agent for a casualty insurance company?

'3. Have any of you ever worked as a claims investigator or insurance adjuster?

'4. Have any of you read any articles or advertising in periodical publications which tend to indicate a relationship between the amounts of personal verdicts and increases in insurance premiums?

'5. (If any of the jurors answer the next preceding question in the affirmative.)

Notwithstanding any opinion which you might have formed regarding the subject of the advertising or articles just mentioned, would you be able to decide the question of liability and damages in this case solely on the evidence and the law without being influenced by such an opinion?"

The trial court made the following ruling:

'THE COURT: I will permit the asking of the question that has been stated in the record as to whether or not anyone on this panel works for or has financial interest in the Hartford Insurance Company. I will permit you to ask Question No. 3 which is set out as follows:

"Have any of you ever worked as a claims investigator or an insurance adjuster?'

'I think you are entitled to know that. However, since our courts have been, I would say, strict on this matter, I don't want you to ask this question right after you ask the one about the Hartford Accident Insurance Company.

'MR. LANDAU: I don't intend to ask one about the Hartford Accident.

'THE COURT: I will permit you to ask No. 3, as I have indicated, because I think it does make a difference if a man has worked as a claims investigator for anybody, insurance company, railroad company or anybody else.'

It may be noted that Mr. Landau, in effect, proposed to the trial court that he wished to ask all of the questions submitted and if the court did not agree, then no questions would be asked with reference to the subject of insurance.

We are of the opinion that the trial court did not unduly restrict the questioning. The court offered counsel the opportunity to ask certain questions and counsel did not accept the offer. The scope of such inquiry rests to some extent within the discretion of the trial court. Eickmann v. St. Louis Public Service Co., Mo., 323 S.W.2d 802, l.c. 807(7--10); Carter v. Rock Island Bus Lines, 345 Mo. 1170, 139 S.W.2d 458, l.c. 462(2--6); Faught v. St. Louis-San Francisco Ry. Co., Mo., 325 S.W.2d 776, l.c. 779(1, 2); 50 C.J.S. Juries § 275(2), p. 1046. Plaintiff cited no Missouri case to support his contention. He did cite a number of federal cases. The ruling of the trial court was within the rule followed in this State as evidenced by the authorities cited supra.

Plaintiff offered to introduce in evidence a repair bill which had been paid for the repair of the car involved in the collision. Defendant objected on a number of grounds. The trial court sustained the objection and stated, 'I am going to exclude any testimony on this unless you have a mechanic come in who can descibe the extent of damage to the car. That would show the amount of violence. This bill doesn't go to prove or disprove any amount of violence, in the Court's opinion.'

The ruling of the trial court was correct. The amount of the repair bill would not have been any evidence of the violence of the collision.

The trial court permitted defendant, over plaintiff's objection, to introduce certain exhibits, the same being photographs of defendant's car. It was admitted that they were taken after certain repairs had been made. Plaintiff says the exhibits should not have been admitted because they did not reflect the condition of the car before the repairs were made. The only purpose of the evidence was to show that the damage to the car had been slight. On direct, as well as on cross-examination, Jando explained the damage in detail using the exhibits in doing so. The evidence of Jando in connection with the photographs fully described the damages to the car. It seems to us the use of the exhibits aided the jury in determining the extent of the damage. Plaintiff cited the case of Gignoux v. St. Louis Public Service Co., Mo.App., 180 S.W.2d 784, l.c. 786(2, 3). In that case, the plaintiff was injured when she alighted from a street car. The negligence relied on was that plaintiff was required to alight at an unsafe place causing her to fall. A photograph of the alleged unsafe place, taken after repairs had been made, was admitted in evidence. This was held to be error. The St. Louis Court of Appeals stated the reason for holding that the admission was error as follows: 'This testimony did not pur before the jury facts from which they could gain an intelligent idea of the conditions at the time of the accident, but did get before the jury evidence of subsequent change in condition, which might have been regarded by them as an admission by the defendant of its negligence.' 180 S.W.2d 789(5). See also 32 C.J.S. Evidence § 709, p. 986. It is obvious that the Gignoux case is not in point.

Error was assigned to the giving of instruction No. 4 covering the alleged contributory negligence of Boland. The particular complaint is that defendant, in the answer, alleged John A. Boland had made a 'sudden and abrupt stop' but the instruction submitted the question as 'John Boland suddenly slowed his automobile.' Plaintiff says that the negligence submitted was not the negligence pleaded. Plaintiff relies on Banta v. Union Pacific R. Co., 362 Mo. 421, 242 S.W.2d 34, l.c. 42(10--12). It may be noted that in the Banta case the negligence pleaded was that the defendant railroad had permitted a steam line of an engine or tender to become defective resulting in the escape of steam which froze on a ladder making it unsafe. The instruction submitting the case to a jury omitted the element of a defective steam line and authorized a verdict for plaintiff if the jury found that the ladder was coated with ice. This Court held the instruction omitted an essential element of recovery. The instruction in the case now before us did not omit any essential element. If...