Carter v. Rock Island Bus Lines

• Citation: 139 S.W.2d 458,345 Mo. 1170
• Decision Date: 04 May 1940
• Docket Number: 36259
• Parties: Cyrus E. Carter, Appellant, v. Rock Island Bus Lines, Incorporated, a Corporation
• Court: United States State Supreme Court of Missouri

139 S.W.2d 458

345 Mo. 1170

Cyrus E. Carter, Appellant, v. Rock Island Bus Lines, Incorporated, a Corporation

No. 36259

Supreme Court of Missouri

May 4, 1940

Appeal from Buchanan Circuit Court; Hon. Sam Wilcox, Judge.

Affirmed.

Max Krug, K. Martin Kirschner and Randolph & Randolph for appellant.

(1) Upon a showing by evidence that appellant's counsel had reasonable cause to believe, and did believe, that a liability insurance company was interested in the defense of this case, and that counsel was therefore in good faith in seeking to inquire of the jury on voir dire examination concerning any interest that any respective juror might have in the insurance company, it was prejudicial error for the court to refuse to permit such inquiry. Galber v Grossberg, 25 S.W.2d 96; Smith v. Star Cab Co., 19 S.W.2d 467; Maurizi v. Western Coal & Mining Co., 11 S.W.2d 268; Plannett v. McFall, 284 S.W. 850; 56 A. L. R 1454.

Mayer Conkling & Sprague for respondent.

(1) The trial court has a wide discretion in controlling and directing the voir dire examination of the jury panel, and where, as here, it appears that there was no abuse in the exercise of the trial court's sound discretion in that regard, the rulings of the trial court should be sustained. Maurizi v. Western Coal & Mining Co., 321 Mo. 396, 11 S.W.2d 275; Schroeder v. Rawlings, 127 S.W.2d 681; Kelley v. Sinn, 277 S.W. 362; Hannah v. Butts, 330 Mo. 844, 51 S.W.2d 4; Bright v. Sammons, 214 S.W. 427. (2) In the majority of cases, and in the case at bar, the record shows an absence of good faith, and the exercise of the sound discretion vested in the trial court should not be disturbed on this appeal. Rytersky v. O'Brine, 335 Mo. 28, 70 S.W.2d 540; Olian v. Olian, 332 Mo. 699, 59 S.W.2d 677; Hannah v. Butts, 330 Mo. 855, 51 S.W.2d 8; Grindstaff v. Goldberg Structural Steel Co., 328 Mo. 81, 40 S.W.2d 706; Bright v. Sammons, 214 S.W. 427.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Plaintiff appeals from a verdict and judgment in favor of defendant in a suit for damages for $ 15,000 brought by plaintiff and tried in the Buchanan County Circuit Court, for personal injuries claimed to have been sustained by plaintiff through defendant's negligence while plaintiff was a passenger on defendant's bus. The record here presents a rather unusual situation. The sole question presented is the refusal of the trial court to permit plaintiff's counsel to question prospective jurors, on voir dire examination, as to whether or not they had any connection with the American Fidelity & Casualty Company, of Richmond, Virginia, claimed by plaintiff to have carried liability insurance for defendant and to be defending the case. The pleadings are not before us. Though a bill of exceptions was allowed and filed the only portion thereof abstracted is that relating to the voir dire examination or attempted examination of the jury panel. Nothing concerning the evidence, the instructions or events during the trial is shown.

On the voir dire examination, the following occurred, before the court and out of the presence and hearing of the prospective jurors:

"Mr. John Randolph: (for plaintiff) Counsel for plaintiff are informed that the American Fidelity and Casualty Company of Richmond, Virginia, is defending this cause and we ask counsel for defendant if that is true.

"Mr. Conkling: (for defendant) No, it is not.

"Mr. John Randolph: We are informed by the Public Service Commission that this defendant had a policy of that company on file which covers that accident. If that company has any interest in the matter at all we desire to interrogate the jury about any connection with that insurance company they may have.

"Mr. Conkling: That company has no interest in this case.

"Mr. John Randolph: We ask permission on account of the information we have from the Public Service Commission to interrogate the jury about that company. And further, the representative of the company has made overtures of settlement in the matter, so eventually there will be some question as to the interest of this company.

"Mr. Conkling: I will state to the Court that the company has no interest in the outcome of this case. I want to be wholly fair with the counsel and the Court: As I understand it, there was a policy of insurance on an automobile which was owned by this defendant and usually operated in its business. The automobile which was operated on the day in question was not covered, according to my information, by this policy of insurance."

Defendant's counsel objected to the proposed interrogation and the court said plaintiff would have to make a further showing. Plaintiff's counsel then offered in evidence his Exhibit A, which he claimed was a letter from the secretary of the Public Service Commission (not certified), reading as follows:

"Certificate No. 264

"Mr. K. Martin Kirschner

"Argyle Building

"Kansas City, Missouri

"Dear Sir:

"Replying to your letter of August 1 regarding accident which your client, Mr. C. E. Carter, and the Rock Island Bus Line were involved, we advise you that the insurance policy on file here covers any accident occurring while the assured is operating pursuant to the certificate of convenience and necessity issued to him by this Commission. This means that if the automobile which was being used by the assured at the time of the accident was being operated under a Travel Order and was running over the regular route of the bus company, it would be covered under the policy which is on file here. This policy is No. 19691 of the American Fidelity and Casualty Company, Inc., of Richmond, Virginia.

"In reply to the third paragraph of your letter we wish to advise that the operator is primarily liable for accidents but he is not permitted to operate unless an insurance policy is filed, assuring that payment of any judgment against him will be made by the insurance company.

"Yours very truly,

"Robert E. Holliway,

"Secretary."

Defendant objected for, among other reasons, that the Public Service Commission could not, by letter determine who was liable or interested in the case, that the letter was ex parte, not the best evidence of coverage, was only hearsay and that there was no travel order issued. The court sustained the objection, saying:

"I don't think this letter is admissible in itself. It doesn't appear to be any certified copy of order, or anything of that sort from the Public Service Commission. It is only a letter made by someone who signs himself as secretary and giving his version of a good many matters which I do not think would be admissible testimony in this case."

[In his motion for new trial appellant does not seem to complain of the exclusion of said Exhibit A.]

Following the offer and rejection of said Exhibit A, Mr. Max Krug, one of plaintiff's attorneys, was sworn. He testified, over defendant's objections, that, after suit had been filed,

"Mr. Conkling, and a gentleman purporting to be an adjuster for this insurance company, and Mr. Kirschner, were in my office, I believe some time in May, but I would not be sure of the exact date. Mr. Conkling, I believe, brought this gentleman to our office and we had some talk of settling and as I recall the conversation now, the adjuster said that if we would get down to earth, we might talk business."

Mr. Kirschner, another of plaintiff's attorneys was sworn and testified, in substance: that he was present at the conference Mr. Krug mentioned; that Mr. Conkling came in with a man whom he introduced as Mr. Monroe; that they discussed the "settlement of this lawsuit;" that Mr. Monroe was "introduced as being with some adjustment company;" that in a later conversation with Monroe (who took him back to Kansas City), Monroe told him he was with the Markel Adjustment Company, and the American Fidelity & Casualty Company of Richmond, Virginia; that said Markel Company "represented a number of such small companies who qualified with the Public Service Company."

He testified also to a later conversation with Mr. Markel, of the Markel Adjustment Company, relative to a possible settlement of the case, which came to naught, but which, from his testimony, seemed calculated to give the impression that said Markel Company was or appeared to be acting in behalf of the American Fidelity & Casualty Company.

All of the foregoing testimony was heard by the court over the objections of defendant.

At the close of Mr. Kirschner's testimony Mr. Conkling again stated to the court,

"We repeat our statement that we are advised that there was no insurance and no coverage at all on this automobile in which plaintiff alleges he was riding on the day the accident occurred, named in his petition, and that the company is not interested at all in the outcome of this case;" to which was added, by Conkling's co-counsel, the further reason that there was no showing the persons who it was claimed had talked with plaintiff's attorneys really represented said insurance company and that agency could not be proved by the mere declaration of the purported agent.

Plaintiff then called Mr. Conkling, defendant's attorney, to the witness stand. He testified that he was employed by a Mr. Wisdom and a Mr. A. J. Hitt, at Maysville, Missouri; that he thought suit had already been filed when he first heard of Wisdom, who lived in Kansas City, Kansas; that "at one time" (time not stated) Wisdom was an "insurance company adjuster" and witness thought he was such at the time he, Conkling, was employed, but further testified, "If he (Wisdom) had any connection with the American Fidelity & Casualty Company, I never heard of it. He never so stated to me."

Mr Kirschner, recalled, testified that he knew Mr. Wisdom;...