Chambers v. Kennedy

• Decision Date: 14 July 1925
• Docket Number: No. 24966.,24966.
• Parties: CHAMBERS v. KENNEDY.
• Court: Missouri Supreme Court

274 S.W. 726

CHAMBERS v. KENNEDY.

No. 24966.

Supreme Court of Missouri, Division No. 2.

July 14, 1925.

Appeal from Circuit Court, Buchanan County; L. A. Varies, Judge.

Action by Charles H. Chambers against Thomas L. Kennedy, Jr. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

John S. Boyer and Stephen K. Owen, both of St. Joseph, for appellant.

HIGBEE, C.

Plaintiff's Ford car, driven by himself, and defendant's Studebaker car, driven by his son Byron, collided at or near the intersection of Jones and Twenty-Second streets in the city of St. Joseph, Mo., between 7 and 8 p. m., November 27, 1922. Plaintiff sustained serious personal injuries for which he recovered judgment in the sum of $13,000, and defendant appealed. Plaintiff is a single man, and at the time of his injuries was 29 years old and lived with his mother.

The evidence for plaintiff tends to show that he was driving his car 8 or 10 miles per hour west on the north side of Jones street; that when he reached the east curb line of Twenty-Second street he saw defendant's car one block to the north. When the front wheels of the Ford car reached the east rail of the street car line in Twenty-Second street, plaintiff looked again and saw defendant's car 20 or 25 feet to the north and near the center of the street, running 30 or 40 miles per hour. To avoid a collision, plaintiff turned his car to the southwest, and when it was 3 or 4 feet southwest of the center of the intersection the cars collided.

"Q. (To plaintiff) What part of the cars came in contact with each other? A. Seemed like the back of the front wheel of the Studebaker and back of the front wheel of the Ford. * * * Seemed like it (plaintiff's car) was dragged a little ways."

The Studebaker stopped 40 or 50 feet south of the intersection, headed south and against the west curbstone of Twenty-Second street, and 15 or 20 feet south of the Ford car. The right rear wheel of the Studebaker car was demolished, the left rear fender was broken and crushed and the left foot board was cut nearly in two by a deep dent just in front of the left rear fender. Plaintiff's car was overturned, its wheels were up in the air and it was headed to the northeast, with the rear end resting on the curb. Plaintiff was under his car and unconscious. Several persons ran to the rescue, turned the Ford car over onto its wheels and plaintiff was taken to a hospital where he remained until December 7, when he was taken home. He had a severe injury on the right side of the top of his head, but the skull was not fractured. Much of the time while in the hospital he was unconscious; at other times he was violent and partially delirious and was kept under the influence of narcotics. Prior to his injuries he was in good health, industrious, kind, and affectionate. There was evidence that plaintiff's injuries were permanent, his ability to labor impaired and he was irritable and subject to epileptic convulsions. Photographs of both cars were taken on the morning after the collision, before they were removed, and offered in evidence. " Plaintiff's evidence as to the circumstances of the collision was corroborated.

The defendant testified he was engaged in selling automobiles; that his son Byron was employed by him in his garage; that on this occasion his son had been home to dinner in the evening and was on his way back to attend to the remainder of his regular work at the garage.

"Q. Did you furnish your son automobiles in which to go to and from his meals in order that he might go and come more quickly? A. Yes, sir; I furnished him a car for his use in the business and I really considered that a part of his work. * * * He had regular duties and it was to perform those regular, duties lie was on his way to the garage."

There was evidence that Byron Kennedy was driving defendant's car south on Twenty-Second street at from 15 to 20 miles per hour as he approached this street intersection; that he had sounded the horn and just after he had crossed the south line of the intersection and was 4 or 5 feet east of the west curb line, plaintiff's car, running at 30 or 40 miles per hour, struck the rear end of defendant's car on the left side, with the results above stated. The force of the collision drove defendant's car against the west curb, demolishing the rear right wheel, and the top of the car struck and was damaged by a tree at the right of the curb. The windshield was broken, Byron's face was cut and he was thrown out of the car upon a fence on the property line where he was found hanging on the fence in a dazed condition. Appellant assigns several errors which will be considered.

1. During the examination of the panel, one of the jurors was asked on his voir dire if he was interested in any manner, as a stockholder or otherwise, in the Continental Casualty Company or any other insurance company engaged in issuing policies of insurance to indemnify persons against claims for damages on account of personal injuries. The defendant objected to the question and moved to discharge the panel "because it is intended to be and is prejudicial and seeks to substitute a party defendant who is not a defendant in the case." The objection was overruled and an exception saved. Similar questions were asked other veniremen. Objections were overruled but the answers are not preserved.

It is generally held that counsel have the right to question jurors on their examination for the purpose of showing grounds for challenge for cause and, within reasonable limits, to elicit such facts as will enable them intelligently to exercise their right of peremptory challenge. "* * * And questions are not barred, although directed to matters not in issue, provided they are pertinent and made in good faith." 35 C. J. 387; State v. Mann, 83 Mo. 589; State v. Miller (Mo. Sup.) 207 S. W. 797; Reich v. State, 94 Tex. Cr. R. 449, 251 S. W. 1072; Benson v. State, 95 Tex. Cr. R. 311, 254 S. W. 793. The cases are reviewed at some length in the Mann Case where it was held (syl. 6):

"The trial court committed error in refusing to permit defendant to inquire of the jurors on their voir dire if any of them belonged to an association having for its object the prosecution of crime or aid to courts and officers in enforcing the criminal laws. The inquiry should have been permitted in order to enable the accused to exercise judiciously his right of peremptory challenges."

In State v. Miller, supra, the court said, quoting syl. 1:

"On voir dire examination of the panel in a murder case, it was error to refuse to allow defendant's counsel to ask one of the jurors what particular church he attended; it being stated that one of the state's important witnesses was pastor of a certain church and that counsel's purpose was to ascertain whether any of the jurors attended such church."

In Reich v. State, supra, it was held, quoting syl. 5:

"In a prosecution for manufacturing intoxicating liquor, where defendant's counsel requested permission to interrogate veniremen as to whether or not they were members of the Ku Klux Klan, and stated that he believed some of them were, and that the Klan had been discussing at their meetings numerous criminal prosecutions and insisting upon convictions, and that he feared prejudice, held that it was error for the court to refuse permission to so examine."

In the Benson Case it was held error to refuse to permit a negro defendant to ask venirement on voir dire examination if they were members of the Ku Klux Klan, notwithstanding they stated they belonged to no secret organization whose obligation would in any way interfere with or influence them against the defendant.

It will be seen that the inquiries in these cases were admittedly unusual. They pertained to the connection or membership of the jurors in some local church, society, or association, and the good faith of counsel in asking the questions was shown. Learned counsel for the defendant cite Wagner v. Gilsonite Const. Co. (Mo. Sup.) 220 S. W. 890, 897 (3), and Ternetz v. St. Louis Lime & Cement Co. (Mo. Sup.) 252 S. W. 65, 71 (14), and cases cited. In the Wagner Case, Small, C., said:

"There was no error in permitting plaintiff's counsel to ask the jury on their voir dire, whether any of them, or their near relatives, were employed by the Ætna Insurance Company. In our large cities especially it is usual for construction companies, where employs are liable to be injured, to carry liability insurance, and plaintiff had a right to know whether any of the jury or their near relatives worked for the Ætna Insurance Company, or any other insurance company so as to strike them from the jury if he saw fit. Kinney v. Railroad, 261 Mo. loc. cit. 114, 169 S. W. 23; Smith v. Scudiero (Kansas City Court of Appeals) 204 S. W. 565."

In Smith v. Scudiero (Mo. App.) 204 S. W. 565, defendant's counsel declined to state if he represented an insurance company that was then interested in the defense, and plaintiff's counsel then asked the jurors on their voir dire if any member was interested in any insurance company or had a relative in the employ of such company or financially interested in it. Judge Ellison said:

"In these circumstances the questions have been ruled-to be permissible"—citing cases.

In Gore v. Brockman, 138 Mo. App. 231, 119 S. W. 1082, the defendant, Dr. Brockman, was asked at the trial if he had taken out "Doctor's Protective Insurance." Judge Ellison said:

"The defendant answered that he carried insurance of that kind. The question was improper and was highly prejudicial. The issue on trial was negligent treatment of plaintiff by defendant as her physician, and indemnity insurance would not aid in determining that question. But more than that, its tendency and effect was to withdraw the real defendant from the consideration of the jury and to substitute for him an insurance company. A litigant has a right to his own personality and the...