Cheffer v. Eagle Discount Stamp Co.

• Decision Date: 25 October 1941
• Docket Number: 37385
• Citation: 156 S.W.2d 591,348 Mo. 1023
• Parties: Rubye Cheffer v. Eagle Discount Stamp Company, a Corporation, and Andrew Luke, Defendants, Eagle Discount Stamp Company, Appellant
• Court: Missouri Supreme Court

156 S.W.2d 591

348 Mo. 1023

Rubye Cheffer v. Eagle Discount Stamp Company, a Corporation, and Andrew Luke, Defendants, Eagle Discount Stamp Company, Appellant

No. 37385

Supreme Court of Missouri

October 25, 1941

Rehearing Denied December 16, 1941.

Appeal from Circuit Court of City of St. Louis; Hon. James E McLaughlin, Judge.

Affirmed.

Fred H Blades for appellant; Moser, Marsalek & Dearing of counsel.

(1) The court erred in declining to consider and in refusing to give the peremptory instruction, requested by defendant Stamp Company at the close of plaintiff's case, directing a verdict for defendant Luke. Dorman v. East St. Louis Ry. Co., 335 Mo. 1082, 75 S.W.2d 854; Strong v. Kadlee, 163 Ill.App. 298; Austin v. Public Serv. Co., 299 Ill. 112, 132 N.E. 458; Field v. Hamm, 254 Mass. 268, 150 N.E. 3; State v. Hills, 94 Ohio St. 171, 113 N.E. 1045; Gobbel v. Columbia Ry. G. & E. Co., 107 S.C. 367, 93 S.E. 137; Henenberg v. Winn, 1 S.W.2d 432; Kladivo v. Melberg, 210 Iowa 306, 227 N.W. 833; Mattauch v. Ridell Auto Co., 138 Iowa 22, 115 N.W. 509. The error was prejudicial to the defendant Stamp Company, and consequently warrants reversal of the judgment on its appeal. Gabelman v. Bolt, 336 Mo. 539, 80 S.W.2d 171; Arnovitz v. Arky, 219 S.W. 621; Bindbeutal v. Street Ry. Co., 43 Mo.App. 463; Sec. 1062, R. S. 1929. (2) The court erred in denying defendant Stamp Company's motion to declare a mistrial when plaintiff's counsel, during his cross-examination of the witness Simmons, brought out the fact that defendant Stamp Company carried insurance. Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673; Hill v. Jackson, 272 S.W. 105; Hannah v. Butts, 330 Mo. 876, 51 S.W.2d 4; Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961; Weininger v. Bennett, 104 S.W.2d 413; Rytersky v. O'Brine, 335 Mo. 22, 70 S.W.2d 538; Whiteman v. Carver, 337 Mo. 1247, 88 S.W.2d 885; Nolen v. Halpin Dwyer Const. Co., 225 Mo.App. 224, 29 S.W.2d 215. (3) The court erred in giving Instruction No. 4 in behalf of the defendant Luke. Elkin v. St. Louis Public Serv. Co., 335 Mo. 951, 74 S.W.2d 600. (4) The court erred in giving Instruction No. 7 at the request of defendant Luke. Said instruction erroneously authorized the jury to reject all or any part of the testimony of any witness they believed had knowingly sworn falsely to any material fact in issue. State v. Willard, 142 S.W.2d 1046; State v. Kelly, 9 Mo.App. 512, Id. 73 Mo. 608; State v. Barnes, 204 S.W. 264; Keeline v. Sealy, 257 Mo. 498, 165 S.W. 1088; State v. Anderson, 19 Mo. 241; State v. Schoenwald, 31 Mo. 147. (5) The verdict should be set aside because of its excessiveness, especially in view of the improper introduction of evidence regarding defendant's insurance, and other incidents during the trial tending to produce an unjust result. Olian v. Olian, 332 Mo. 689; Pitcher v. Schoch, 139 S.W.2d 463; O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085.

Mark D. Eagleton, James A. Waechter and Roberts P. Elam for respondent.

(1) There was no reversible error in the trial court's action in refusing to consider and give the peremptory instruction in favor of appellant's co-defendant Luke, requested by appellant at the close of plaintiff's evidence. Clay v. Owen, 338 Mo. 1061, 93 S.W.2d 914; Kelso v. W. A. Ross Const. Co., 337 Mo. 202, 85 S.W.2d 527; Emory v. Emory, 53 S.W.2d 908; State ex rel. Cunningham v. Haid, 328 Mo. 208, 40 S.W.2d 1048. (2) Since an insurance company was concededly defending the case on behalf of appellant, and interested in the case as appellant's insurer, the jury had the right to know the relationship between it and the witnesses produced by it at its expense, in passing upon the weight and credibility of their testimony. Jablonowski v. Modern Cap Mfg. Co., 312 Mo. 173, 279 S.W. 89; Snyder v. Wagner Elec. Co., 284 Mo. 285, 223 S.W. 911; Grindstaff v. J. Goldberg & Sons S. S. Co., 328 Mo. 72, 40 S.W.2d 702. (a) In any event, the appellant is in no position to complain of such testimony, in that: (b) There was no objection to such testimony, and no motion made to strike it out -- in fact, no effort to cure any error in its admission -- by appellant, in the absence of which the point is not properly preserved for review. Harrison v. St. Louis-S. F. Ry. Co., 339 Mo. 821, 99 S.W.2d 841; Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903; Donnell v. Stein, 53 S.W.2d 903; Brackett v. James Black Masonry & Cont. Co., 326 Mo. 387, 32 S.W.2d 288. (c) Other evidence relating to the insurance company's connection with the case was admitted without objection by appellant, and without complaint here. Keyes v. Chicago, B. & Q. Ry. Co., 326 Mo. 236, 31 S.W.2d 50; Huhn v. Ruprecht, 2 S.W.2d 760. (3) There was no reversible error in the giving of defendant Luke's Instruction No. 4. Homan v. Mo. Pac. Ry. Co., 334 Mo. 61, 64 S.W.2d 617. (4) There was no reversible error in the giving of defendant Luke's Instruction No. 7, because: (a) Appellant did not properly preserve in its motion for a new trial any point regarding this particular instruction. Davenport v. Silvey, 265 Mo. 543, 178 S.W. 168; Szuch v. Ni Sun Lines, 332 Mo. 469, 58 S.W.2d 471. (b) The instruction was substantially correct and proper. Peterson v. Pusey, 237 Ill. 204, 86 N.E. 692; Garza v. State, 47 S.W. 983; 35 C. J., p. 918. (c) The instruction properly advised the jury respecting the maxim falsus in uno, falsus in omnibus. State v. Willard, 142 S.W.2d 1046; State v. Barnes, 204 S.W. 264. (5) The verdict and judgment are not in the least excessive. Manley v. Wells, 292 S.W. 67; Potashnick v. Pearline, 43 S.W.2d 790; Vitale v. Duerbeck, 338 Mo. 556, 92 S.W.2d 691; Capstick v. T. M. Sayman Prod. Co., 327 Mo. 1, 34 S.W.2d 480; Messing v. Judge & Dolph Drug Co., 322 Mo. 901, 18 S.W.2d 408; Brickell v. Fleming, 281 S.W. 951; Lewis v. St. Louis Independent Packing Co., 3 S.W.2d 214; Christiansen v. St. Louis Pub. Serv. Co., 333 Mo. 408, 62 S.W.2d 828; Hart v. Chicago, R. I. & P. Ry. Co., 264 S.W. 902; Mayne v. Kansas City Ry. Co., 287 Mo. 235, 229 S.W. 386; Keehn v. D. R. F. Realty Co., 328 Mo. 1031, 43 S.W.2d 416; Pandjiris v. Oliver Cadillac Co., 339 Mo. 711, 98 S.W.2d 969.

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

OPINION

WESTHUES

Respondent, Rubye Cheffer, filed this suit to recover damages for personal injuries sustained in a collision of two cars. The defendants were Eagle Discount Stamp Company, a corporation, and Andrew Luke. A trial resulted in a verdict in favor of plaintiff and against the Stamp Company in the sum of $ 15,000. The jury returned a verdict in favor of the defendant Luke. From the judgment defendant Stamp Company appealed.

Questions of law raised on this appeal, which will be later considered require a rather full statement of the facts. Ned Cheffer, plaintiff's husband, was, at the time plaintiff sustained her injuries, an employee and agent of the defendant Stamp Company. On July 17, 1937, he was at Blythesville, Arkansas, on business for the company. He was called by his superiors to come to St. Louis, Missouri. Cheffer, accompanied by his wife, proceeded in his Chrysler on highway number 61 toward St. Louis. He reached the junction of highways 61 and 25 in Jefferson County, Missouri, about 7:00 P. M., when and where the collision occurred. Highway number 61, running north and south, is a two lane highway south of the junction. At the junction and for a number of miles north thereof it is a four lane highway. Highway number 25 does not cross highway 61, but runs easterly therefrom towards St. Genevieve. The approach and junction of highway number 25 with highway 61 was made by the construction of a "Y." That is to say, about three hundred feet or so east of highway 61 highway number 25 divides, one arm going in a southerly direction to highway 61, for travelers desiring to go south, and another arm extending in a northwesterly direction, for travelers desiring to go north, thus leaving a triangular plot of ground surrounded by highways, referred to in the evidence as an island. The collision occurred on highway 61 immediately north of this so called island. The evidence revealed that Cheffer, while going north toward the point of collision, was following another car. These two cars were traveling in the lane immediately east of the center line of the four lane highway. Witnesses estimated their speed at forty-five to sixty-five miles per hour. At the same time defendant Luke was traveling south in a car on highway 61. He too was following a car, and these cars were traveling south in the lane immediately west of the center line of the four lane highway. The driver of the car ahead of Luke desired to turn left, or east, on highway 25, and for the purpose of doing so stopped a short distance north of the island to permit the approaching cars, Cheffer's and the car ahead of Cheffer, to pass. Immediately after Cheffer's car passed the car waiting to turn left, the Chrysler driven by Cheffer and the car driven by Luke collided head-on. Plaintiff was seriously injured as the result of this collision. There was little dispute as to what occurred up to this point. The real controversy at the trial was as to what transpired immediately before and at the time of the collision. Plaintiff testified that she noticed what she called a truck stop near the center of the highway; that the car traveling ahead of them turned and passed around that car; that her husband turned his car to the left to pass but failed to get by. That was all she remembered until she recovered consciousness in a hospital. Cheffer, the husband, who was also seriously injured, testified that he did not remember anything that happened after he stopped to have his car serviced a few miles north of Blythesville, Arkansas. This lapse of...