Cammarata v. Payton

• Decision Date: 14 July 1958
• Docket Number: No. 46456,No. 2,46456,2
• Citation: 316 S.W.2d 474
• Parties: Sally CAMMARATA (Plaintiff), Appellant, v. Leon R. PAYTON, d/b/a Independent Cartage Company (Defendant), Respondent
• Court: Missouri Supreme Court

Page 474

316 S.W.2d 474

Sally CAMMARATA (Plaintiff), Appellant, v. Leon R. PAYTON, d/b/a Independent Cartage Company

(Defendant), Respondent.

No. 46456.

Supreme Court of Missouri, Division No. 2.

July 14, 1958.

Motion for Rehearing or to Transfer to Court En Banc Denied

Oct. 13, 1958.

Carl R. Gaertner, and Morris B. Kessler, St. Louis, for appellant.

Schwartz & James, Harry M. James, St. Louis, Joseph Nessenfeld, St. Louis, of counsel, for respondent.

BARRETT, Commissioner.

In this action to recover $18,000 for personal injuries a jury returned a verdict for the defendant and the plaintiff has appealed. Briefly, the circumstances were that on September 6, 1956, the plaintiff, Sally Cammarata, with her three children, were traveling north on 12th Street at the point where 12th Street curves to the west and merges into 13th Street. Mrs. Cammarata had been driving at a speed of about twenty miles an hour; at or in the curve and while in a line of traffic she reduced the speed of her car to ten miles an hour and as she slackened speed or stopped an oil transport truck driven by Robert Schmidt struck the rear of her automobile. Mrs. Cammarata claims to have been driving her automobile in the first vehicular traffic lane ahead of the defendant's truck. According to the defendant's evidence she had been driving in the second vehicular lane and in the merging streets when about eight feet ahead of the truck suddenly turned to the right and across the traffic lane in front of the truck and within a car's length stopped her automobile, with the consequence that the truck bumped the left rear of her automobile.

Upon her appeal Mrs. Cammarata makes six assignments of error in connection with her cross-examination, the argument of defense counsel and the giving of instruction two. In all of these assignments it is urged that the trial court erred in overruling her motion for a new trial and that this court should reverse the judgment entered upon the jury's verdict and grant her a new trial. In one of her assignments it is urged that the court erred in permitting defense counsel to cross-examine her as to prior claims she had had over the years in the absence of any showing that her present complaints were the same or similar to injuries received in the prior accidents and claims. In another assignment it is urged that the court erred in failing to declare a mistrial or to reprimand counsel when he inquired about lawsuits filed on behalf of her children. There are two assignments in connection with defense counsel's argument to the jury, one that the court erred in refusing to sustain her objection to his statement that the plaintiff was a professional litigant and that additional suits would be filed, and second that the court erred in refusing to instruct the jury to disregard counsel's statement that he wished the jury knew about the litigation plaintiff had in the courthouse. As to instruction two it is urged that the instruction was not supported by the evidence and was indefinite, misleading and confusing.

In her motion for a new trial and brief it is first urged that the court erred in admitting in evidence, over her objection, that part of her cross-examination concerning prior claims for personal injuries, particularly 'injuries to portions of plaintiff's body not injured or claimed to be injured in the instant case.' After examining the plaintiff at some length as to the details of the accident defense counsel asked this question: 'How many times have you, Mrs. Cammarata, had claims for personal injuries?' The court immediately called counsel to the bench and, evidently out of the jury's hearing, this followed: plaintiff's counsel said, 'I object to that, I object to the question. I object to any prior claims she may have had----.' Defense counsel said, 'I want to show this woman is a professional claimant, and I have a right to show it.' The court indicated that he did not agree with defense counsel's statement and said that counsel had 'a right to show prior claims relating to the same injuries. It goes to the credibility of the witness.' Plaintiff's counsel said, 'I wish to make my objection.' The court said, 'Have the records show the objection is overruled.' There was not then any other or further objection or request for action on the part of the court.

Defense counsel again inquired of Mrs. Cammarata, 'how many prior claims have you had for personal injuries?' She answered, 'three.' Counsel then went into the various claims, the first one when, the witness said, she was fifteen (she was 38 when the case was tried) when a streetcar door closed on her, the second when she was twenty-one and a streetcar door again 'closed on my chest.' Then six years ago she had a third claim against the streetcar company and a fourth claim resulting from a vehicular collision on icy streets. In that accident, in 1951, she sustained an injury to her back and Dr. Wennerman, her family doctor, treated her for that injury and in addition to her back he treated her for nervousness and a possible miscarriage. Mrs. Cammarata did not remember how much she had been paid for that claim. Then she had a claim against a Van Horn restaurant. In both of her latter claims she was represented by one of the lawyers now representing her. Finally, after developing that Mrs. Cammarata had been in the taxicab business, defense counsel said, 'You have had claims arising out of the taxicab business that yielded in too, haven't you?' Upon objection and after another colloquy without the hearing of the jury the court sustained an objection to that question. Counsel then made an offer of proof that she had other lawsuits 'involving the same lawyer in this case.'

At this juncture, for the first time since his initial objection to 'other claims,' plaintiff's counsel moved 'that the testimony relative to any injuries she may have had on those, are not pleaded in the lawsuit, and should be stricken and the Jury instructed to disregard it.' He repeated and specifically asked that it be stricken and the jury instructed to disregard 'all reference concerning any prior injuries or claims that the Plaintiff may have had regarding other portions of her body, than those pled in the lawsuit, in this lawsuit.' To the latter motion the court said, 'Overruled.' Defense counsel then returned to her prior accidents and the specific injuries she had sustained in them; in the first one (when she was fifteen) a streetcar door closed on her leg, in the second the door closed on her chest, and in 1951 she had an injury to her back, nervousness and a possible miscarriage. She said, as to her 1951 injuries, that all the movements of her back were impaired but that it cleared up within a year.

The manifestly inflammatory and improper statements that plaintiff was a professional litigant were not made within the hearing of the jury. Except for the implication from defense counsel's questions (Dent v. Monarch Life Ins. Co., 231 Mo.App. 283, 98 S.W.2d 123) there was neither charge nor proof that any of Mrs. Cammarata's claims were fraudulent, and the fact that she may have been a habitual litigant does not necessarily reflect on her credibility and neither may an unfavorable inference be drawn from her assertion of legal rights. Dietz v. Southern Pac. Ry. Co., 225 Mo.App. 39, 28 S.W.2d 395. While the number and details of her claims going back over a period of more than twenty years were not in and of themselves relevant they were not immaterial for all purposes. Louis Steinbaum Real Estate Co. v. Maltz, Mo., 247 S.W.2d 652, 31 A.L.R.2d 1052. In so far as her prior claims may have been for injuries for which she now claims damages they were of course pertinent (Craig v. United Rys. Co. of St. Louis, Mo., 185 S.W. 205; Donk v. Francis, 351 Mo. 1053, 174 S.W.2d 840) and, therefore, were not subject to either exclusion or review upon general objection. Kansas City v. Thomson, Mo., 208 S.W.2d 216; Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646, 157 A.L.R. 598. The original objection was to 'the question' and specifically to 'any prior claims' and for a time it would appear that defense counsel was insisting upon the admissibility of the evidence on that improper ground but the court was admitting it upon another and proper theory--that she may then have been making a claim for injuries received in other accidents. Plaintiff's counsel in his final motion to strike and in his brief here contends that the prior claims, by reason of their remoteness and in the absence of any showing that her present complaints were the same or similar to injuries received in prior accidents, were improperly admitted. Marrah v. J & R Motor Supply Co., Mo.App., 165 S.W.2d 271.

In addition to the immediate circumstances, in considering the assignments concerning the cross-examination and argument, it is important to set forth and note the full background and weigh the incidents in the context of the trial. Williams v. St. Louis Public Service Co., 363 Mo. 625, 635, 253 S.W.2d 97, 103. The first time the subject of any of the plaintiff's prior claims or injuries was mentioned was in the opening statement of plaintiff's counsel. He had detailed for the jury her present injuries and disabilities, the pain she suffered in her neck and head, resulting he said from a whiplash injury, pain and numbness shooting through her arm and hand causing a tingling in her fingers, nervousness, pain in her hips and legs, injury and pain in her back--even an intervertebral disc injury--and pain all the way to her toes. At this juncture plaintiff's counsel stated, 'by the way,' that she had sustained a prior injury to her back, six or seven years ago, and was under a doctor's care for a month and the whole thing cleared up in a year. In her direct examination Mrs. Cammarata testified to her present complaints which, briefly, included pain in her neck, shoulder and back, headaches, pain in her back down...