Brown v. Parker

• Decision Date: 18 February 1964
• Docket Number: Nos. 31316,31317,s. 31316
• Citation: 375 S.W.2d 594
• Parties: Margaret W. BROWN, Plaintiff-Respondent, v. Thomas J. PARKER and John Patrick Brown, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 594

375 S.W.2d 594

Margaret W. BROWN, Plaintiff-Respondent, v. Thomas J. PARKER and John Patrick Brown, Defendants-Appellants.

Nos. 31316, 31317.

St. Louis Court of Appeals, Missouri.

Feb. 18, 1964.

Motion for Rehearing or for Transfer to Supreme Court Denied

March 12, 1964.

Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, Robert E. Keaney, Richard M. Stout, St. Louis, for appellants.

Gragg, Aubuchon & Walsh, Eugene P. Walsh, St. Louis, for respondent.

BRADY, Commissioner.

This action for personal injuries resulted in a jury verdict against both defendants in the amount of $8,000.00. Following the trial court's action in overruling their timely after-trial motions, the defendants brought their separate appeals to this court.

The defendant Parker presents four allegations of prejudicial error. He first contends the trial court prejudicially erred in overruling his objection to certain of plaintiff's inquiries on voir dire. Secondly, he contends the trial court prejudicially erred in giving Instructions No. 2 and No. 4, which he characterizes as confusing, misleading and repugnant. The third allegation of prejudicial error must be recited in order to understand the point made. It reads: 'The Court erred in overruling the motion of defendant Parker for a mistrial when plaintiff, while crying, in answering a question regarding the general condition of her health prior to the accident, stated she had six children to care for at home.' The last allegation of prejudicial error deals with the trial court's action in refusing to allow counsel to make certain comments during closing argument. The appeal of the defendant Brown is determined by this court's ruling upon his contention that he was the plaintiff's unemancipated minor child at the date of the collision and that the trial court should have therefore sustained his motion for a directed verdict offered at the close of all the evidence. The other allegations of prejudicial error advanced by this defendant need not be stated.

It is obvious that, with the possible exception of the second allegation, these allegations of error will not be determined by facts which directly involve the occurrence of this collision. While it is not obvious, a careful examination of the arguments advanced to support the second allegation discloses that the contentions upon which it is based do not require a minute examination of the factual situation. Accordingly, an extended review and statement of the factual situation is unnecessary. All that is required is a very brief and somewhat broad statement of the facts relating to this accident with a more detailed explanation of what took place during the trial.

The collision which gave rise to this action occurred at the intersection of Grand, Easton and Evans in the City of St. Louis. Grand runs in a generally north-south direction, Easton in a generally southeast-northwest direction, Evans runs in a generally southwest-northeast direction and blends into Easton so that both Easton and Evans cross Grand on the same pavement. There are electric signals controlling traffic on all three streets at this intersection. The defendant Parker's automobile was southeast bound on Easton, while the defendant Brown was north bound on Grand. The collision occurred at about 6:00 p. m. on a hot, dry August day. Parker had entered into Easton at Clara. In obedience to the electric signal controlling traffic traveling in his direction, Parker stopped at the intersection. His evidence was that when the signal turned green, he looked southwardly and saw stopped automobiles on Grand; that he moved approximately eighteen or twenty feet and looked to the north and ascertained there was nothing approaching from that direction; that he then directed his attention straight ahead; and that when he got to the middle of Grand, which is sixty feet wide, he looked to the south again and saw the Brown automobile 'right on top of me.' The collision occurred in the middle of Grand. Brown's evidence was that the light was in his favor as he entered the intersection without stopping and still in his favor when his automobile was in the middle of the intersection. The evidence also was that Parker and Brown could not have had a green signal at the same time.

Prior to voir dire and out of the hearing of the jury, plaintiff's counsel made the usual inquiry of counsel for both defendants regarding the interest any insurance company might have in the defense of this case. Parker's counsel gave an answer showing the interest of Mid-Continent Casualty Company. Brown's counsel stated that under a reservation as to coverage he was defending for the Aetna Insurance Company. Plaintiff's counsel stated that he wanted to ask one general question regarding the possible employment of any member of the panel or their financial interest in these companies. Over the objection of both defendants the trial court granted permission to do so provided such a question was placed in the general questions asked of the panel in such a manner as to avoid undue attention being drawn to it. On voir dire the plaintiff's counsel introduced himself, opposing counsel, and the parties and inquired if any of the panel knew any of those persons. He asked if any of the members of the panel knew the plaintiff's doctor. He then asked the panel: 'Do any members of this panel have any interest in--or are any of the members of the panel employed by, or have any financial interest in the Mid-Continent Casualty Company, or the Aetna Insurance Company?' Counsel proceeded to ask another question of the panel and then, immediately before asking the panel if any of them had any feeling toward one party or the other in a lawsuit arising from the position of the parties as plaintiff or defendant, counsel stated: 'At any rate, I have asked you whether (sic) you know any of the counsel, or any parties to the case, and you stated you did not, or if you know anything about the case by reason of hearing it discussed, or for any reason--that is not unusual, sometimes it happens.'

During the direct examination of the plaintiff, her counsel made inquiry as to a bursitis condition, and the plaintiff answered that she had had such a condition '* * * but that didn't have anything to do with this accident.' She was then asked, 'Prior to this accident, Mrs. Brown, what was the general condition of your health?' Her answer was, 'It was fairly good; I did all my own work; I had six children at home to take care of. * * *' At this point a general objection was made by Parker's counsel. Out of the hearing of the jury and prior to the court's ruling upon the objection, counsel also requested a mistrial. The following colloquy between court and counsel then took place: 'MR. STOUT (counsel for Brown): At this time, plaintiff is dabbing at her eyes with her handkerchief, and she has been for twenty minutes sniffling in the presence of the jury, and she has been wiping her eyes--wiping the tears, and this is very prejudicial to our case, and I ask for a mistrial on that ground, also. MR. WALSH (plaintiff's counsel): I asked for a recess before, and the Court indicated it was all right to proceed, and neither counsel objected to what was going on then. THE COURT: Well, she was wiping her eyes with a handkerchief but I don't believe the jury is paying too much attention to that. You did not object to that before, and we went on all right. The objection will be overruled.' Returning to the questioning of his client and in the hearing of the jury, counsel asked the following question and received the following answer: 'Q (By Mr. Walsh) Directing your attention back to my question, I don't want you at this point to tell me what you were able to do or not able to do, but, generally, with respect to your health: What was the general condition of your health before this accident? A It was fairly good.'

There is no contention that the evidence is insufficient to support the giving of Instructions No. 2 and No. 4. The point raised requires a brief statement of the submission made in those instructions. Instruction No. 2 directs a finding for the plaintiff and against the defendant Parker, if the jury finds that Parker ran the red light, was negligent in so doing, and that negligence either directly caused or directly combined and concurred with defendant Brown's negligence as submitted in Instruction No. 3 to cause plaintiff's injury. Instruction No. 4 directs a finding for the plaintiff and against the defendant Brown if the jury finds that Brown ran the red light, was negligent in so doing, and that negligence either directly caused or directly combined and concurred with defendant Parker's negligence as submitted in Instruction No. 1 to cause plaintiff's injury. The submissions contained in Instructions No. 1 and No. 3 will be set out later herein.

At the very beginning of his argument plaintiff's counsel stated that he wanted to make clear to the jury why the defendant Brown was sued as a defendant. There was an objection, and during the colloquy that followed plaintiff's counsel stated that he wanted to tell the jury why Brown was sued and intended to say that '* * * after taking the deposition of Parker, Parker gave evidence against Brown, that Brown ran the red light, and certainly plaintiff is entitled to bring that to the attention of the jury.' The court sustained the objection. Immediately following the court's ruling and upon returning to his argument before the jury, counsel for plaintiff stated: 'At any rate, John Patrick Brown is a defendant in this case; there was testimony given on deposition by Parker, which was taken before Brown was sued, and that evidence was given on the part of Parker, that Brown ran the red light, and that is why Brown is in this case.' There was an objection on the ground this violated the previous ruling of the court and a request that these remarks be stricken and the jury...