Burton v. Phillips

• Decision Date: 19 June 1928
• Docket Number: No. 20340.,20340.
• Citation: 7 S.W.2d 712
• Parties: BURTON v. PHILLIPS.
• Court: Missouri Court of Appeals

7 S.W.2d 712

BURTON v. PHILLIPS.

No. 20340.

St. Louis Court of Appeals. Missouri.

June 19, 1928.

Rehearing Denied with Modification June 27, 1928.

Appeal from St. Louis Circuit Court; Anthony F. Ittner, Judge.

"Not to be officially published."

Action by Billee Burton, an infant, by Charles F. Ballak, her next friend, against Frank Phillips. Judgment for plaintiff, and the defendant appeals. Affirmed.

Wayne Ely, of St. Louis, for appellant.

Earl M. Pirkey, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff in an automobile collision at the intersection of Manchester and McCausland avenues, in the city of St. Louis, near midnight on March 18, 1926. The case was tried to a jury, resulting in a verdict for plaintiff, in the sum of $3,500; and, from the judgment duly rendered, defendant, after an unavailing motion for a new trial, has appealed.

In her petition, and in the submission of the case to the jury, plaintiff counted upon negligence of defendant under the humanitarian doctrine, and by reason of his failure to have the lights upon his automobile burning upon the occasion in question. The amended answer of defendant was a general denial, coupled with a plea of contributory negligence, to which plaintiff replied in the conventional form.

So far as concerns the situation with reference to the scene of the collision, it will serve our present purposes to say that Manchester avenue runs generally east and west, while McCausland avenue runs north and south, and intersects, but does not cross, Manchester from the north. Plaintiff, in company with her colored maid, Helen Shovey, was driving eastwardly along the south side of Manchester in a Ford coupé, and, when she arrived at the intersection of the two streets, she made a left turn to the right of the center of the intersection in an attempt to enter upon McCausland avenue. She had progressed to the point that the rear wheels of her Ford had crossed the north rail of the westbound street car track, when her automobile was violently struck by a Columbia touring car, which was being driven westwardly by defendant along the north side of Manchester. The incidental facts of the case will be hereinafter stated in greater detail, as they may become pertinent in connection with particular points for decision.

Defendant's first assignment of error is directed at the action of the court in sustaining plaintiff's challenge of venireman Gus E. Hanselman during the impaneling of the jury. Previous to the time of the ruling complained of, it had been admitted by counsel for defendant that the Ætna Insurance Company was defending the case, and would pay any judgment that might be rendered. Upon the examination of the jurors on the voir dire, it was found that Hanselman was employed by the American Automobile Insurance Company, which assumed the same sort of risks as the Ætna company, and that he was acquainted with a number of the latter's employees. The juror did not admit that he possessed any preconceived prejudice against the right of plaintiff to recover, but nevertheless stated very frankly that he was unable to say that his connections with an insurance company might not influence his verdict. It is the sacred right of the parties to a cause to have a jury composed of fair and impartial men, and it has been found to be the counterpart of wisdom to vest the trial court with a large discretion in the matter of superintending their selection. In this instance, the answers of the prospective juror were such as to raise a grave doubt as to his fitness and impartiality, in consequence of which the learned trial judge was clearly warranted in sustaining the challenge for cause. Vessels v. Kansas City Light & Power Co. (Mo. Sup.) 219 S. W. 80; Ternetz v. St. Louis Lime & Cement Co. (Mo. Sup.) 252 S. W. 65; Theobald v. St. Louis Transit Co., 191 Mo. 395, 90 S. W. 359; Oakley v. Richards, 275 Mo. 266, 204 S. W. 505; Johnson v. Kansas City Electric Light Co. (Mo. App.) 232 S. W. 1094.

Defendant next insists that certain comment by the court in connection with the testimony of Dr. Abraham Bonhassin, a witness for plaintiff, constituted reversible error. It appears that the doctor had been in charge of the receiving room at the City Hospital on the night of the accident, and that, upon an examination of defendant, when the latter was brought there by the police shortly after the collision, he had found that defendant was partially intoxicated. The witness was subjected to a lengthy cross-examination, conducted with marked bitterness, during which counsel for defendant interrogated him time and again in reference to the degrees of intoxication, as classified by the medical profession. The assignment of error under consideration involves the following short colloquy between court and counsel in connection therewith:

"The Court: Why repeat this so many times, Mr. Ely?

"Mr. Ely: Because the witness isn't answering the question fairly.

"The Court: He hasn't given any different answer now.

"Mr. Ely: I object to the court's remark.

"The Court: Note it. I asked why you repeated the same question, whether he was drunk or not.

"Mr. Ely: Because of the effort of the witness to explain unexplainable parts of his testimony.

"A. You didn't ask me to explain the whole record for you.

"The Court: There is nothing before you now, doctor.

"Q. Yes; there is. There is the question what per cent. you found him to be drunk.

"The Court: Answer it, if you can.

"A. I will say about 50 per cent."

As is true with practically all features of trial procedure, the scope to be taken in the cross-examination of a witness is subject to the exercise of a judicial discretion, reviewable on appeal for abuse. We concede that, in view of the disfavor with which comments by the trial judge on the evidence are received in our local practice, the remark of the court in this instance may, perhaps, be said to have been unfortunate; but, since the evident purpose of the remark was not to vouch for the credibility of the witness, but rather to speed up the course of the examination within what the entire record bespeaks as proper limits, and having due regard for what transpired afterwards, as shown by the excerpt from the record supra, we cannot believe that the mere statement of the court to the effect that, whatever the prior testimony of the witness may have been, he had not changed it in his last answer, should be held to have been prejudicial to defendant's rights, so as to require a reversal of the judgment. Moore v. St. Louis & S. F. R. Co. (Mo. App.) 283 S. W. 732; Stratton v. Nafziger Baking Co. (Mo. App.) 237 S. W. 538; Cromeens v. Sovereign Camp, W. O. W. (Mo. App.) 247 S. W. 1033; Steltemeier v. Barrett, 145 Mo. App. 534, 122 S. W. 1095.

The point is made that the court erred in allowing the original answer of defendant (a general denial) to be introduced in evidence, and in permitting counsel for plaintiff to argue to the jury that, by filing an amended answer, the defendant had abandoned his original plea. We see no merit in either of these contentions. It has been held repeatedly that the filing of an amended pleading constitutes an abandonment of the prior pleading, as well as of all matters not restated in the amendment (Ticknor v. Voorhies, 46 Mo. 110; Arkla Lumber & Manufacturing Co. v. Henry Quellmalz Lumber & Manufacturing Co. [Mo. Sup.] 252 S. W. 961; Amerland v. Amerland, 188 Mo. App. 50, 173 S. W. 104; State ex rel. v. Hiller [Mo. App.] 295 S. W. 132); and that a former pleading, thus abandoned by the filing of an amended one, may be offered in evidence for whatever it is worth, either as an admission on the part of the pleader, or as tending to show that the last defense made is inconsistent with the first claim, and is an afterthought (Parsons v. Harvey, 281 Mo. 413, 221 S. W. 21; Meriwether v. Publishers: Geo. Knapp & Co., 224 Mo. 617, 123 S. W. 1100; Andrus v. Business Men's Accident Association of America, 283 Mo. 442, 223 S. W. 70, 13 A. L. R. 779; Walser v. Wear, 141 Mo. 443, 42 S. W. 928).

Defendant next contends that no case was made for the jury, and that his peremptory instruction in the nature of a demurrer to the evidence, requested at the close of the whole case, should have been given. As we have heretofore indicated, the case went to the jury upon the issues of failure to have lights, and negligence under the humanitarian doctrine. Upon the first of such issues, the record contains the positive and unequivocal statement of plaintiff herself that she saw defendant's automobile momentarily before it struck her car, and that its headlights were not burning. Consequently, it cannot be seriously argued that such assignment of negligence was not for the jury.

Passing to the question of whether a case was made under the humanitarian doctrine, we are mindful of the testimony that the street lights, as well as the lights on plaintiff's car, were burning, that plaintiff made the turn to the left at a speed of approximately 7 miles an hour, and that, when she first saw defendant's automobile, after she had progressed to the north side of the street, it was coming directly towards her, and was yet 20 feet away. In view of the surrounding circumstances, it would seem that the inference was fairly and legitimately permissible that plaintiff's present intention to cross the street, and her position of peril, would have been observable to defendant, in the exercise of due care on his part, when he was considerably more than 20 feet from the point of collision. But, be that as it may, we have defendant's own testimony that his brakes were in good order, that he approached the intersection at a speed of 15 or 20 miles an hour, and that, at the speed at which he was traveling, he could easily have stopped his car, with safety to himself, within a space of 10 feet. From these facts there was clearly a case...