Clayton v. St. Louis Public Service Co.

• Decision Date: 15 March 1955
• Docket Number: No. 29077,29077
• Parties: Mary CLAYTON (Plaintiff), Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 621

276 S.W.2d 621

Mary CLAYTON (Plaintiff), Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation (Defendant),

Appellant.

No. 29077.

St. Louis Court of Appeals, Missouri.

March 15, 1955.

Motion for Rehearing or for Transfer to Supreme Court Denied

April 15, 1955.

Carroll J. Donohue, Robert O. Hetlage, Salkey & Jones, St. Louis, for appellant.

Hullverson & Richardson, James E. Hullverson, St. Louis, for respondent.

HOUSER, Commissioner.

This is an action for damages brought by Mary Clayton against St. Louis Public Service Company as a result of injuries sustained by her while a passenger on one of defendant's streetcars. A trial jury returned a verdict for $6,250 for plaintiff. The carrier has appealed from the judgment of the circuit court entered upon the verdict, claiming that the trial court erred in failing to declare a mistrial for improper cross-examination and improper argument on the part of plaintiff's counsel with reference to the subject of insurance, and in ruling that plaintiff's doctor's records were available to both parties, thus denying defendant's right to comment in final argument upon the failure of the doctor to produce his records in court; and that the verdict is grossly excessive.

The first question is whether the subject of insurance was improperly and illegally injected into the case. Robert Wieland, an employee of Transit Casualty Company which insured defendant's liability, called on plaintiff the day after the accident, took a signed statement, and thereafter visited plaintiff on several occasions over a period of two or three months. Defendant's counsel in cross-examining plaintiff and certain of plaintiff's witnesses with reference to Mr. Wieland referred to him as a claim agent and representative of or 'young man from' the Public Service Company. Defendant produced Mr. Wieland as a witness for defendant, introducing him to the jury as 'the representative of the Public Service Company, the claim agent who called on' plaintiff. Prior to the time Mr. Wieland was placed on the stand counsel for defendant, anticipating that the name of Transit Casualty Company would be brought out during the cross-examination, made an objection out of the hearing of the jury to any reference to the name 'Transit Casualty Company' which appeared at the top of memoranda written by the witness in the course of his investigation. The court ruled that plaintiff's counsel had a right to ask Mr. Wieland by whom he was employed. Thereupon the following occurred during the cross-examination of Mr. Wieland by plaintiff's counsel:

'Q. Now, in order to clear up something, I think, did you state you represented Public Service Company when you went out to see Mrs. Clayton? A. I did.

'Q. Now, is that true? A. Yes.

'Q. Is that who you are employed by? A. No.

'Q. Well, who were you employed by the time this happened? A. Transit Casualty Company.

'Q. And who were you representing when you went out to see this lady? A. Public Service Company.

'Q. Were you ever in their employ? A. No.

'Q. But you were representing them when you went out to see her, is that correct? A. I was.

'Q. Would it be possible that you were representing Transit Casualty Company when you went out to see them?

'Mr. DeVoto: Your Honor, I am going to object.'

Thereupon, the following occurred outside the hearing of the jury:

'Mr. DeVoto: Counsel has stated, as he indicated at the outset of the testimony, that he would ask one question as to where this man is employed, and I feel any further reference to the Transit Casualty is trying to inject insurance into this case, and I am going to ask for a mistrial.

'Mr. Hullverson: Well, as I said, there is no question of injecting insurance in this case. I want to get to the bottom of the facts. The man said he had no connection with Public Service and he does work for Transit Casualty, and yet he is going out and seeing Mrs. Clayton. Why? I know why, but I don't know whether there is any connection as far as the jury----

'The Court: Well, you are getting on dangerous ground. I will let you ask one question, whether or not he was representing Transit Casualty when he went out; that is the question I will let you ask.

'Mr. DeVoto: Is that motion overruled?

'The Court: Yes, overruled.'

The trial was resumed before the jury as follows:

'Mr. Hullverson: Q. Were you representing Transit Casualty when you went out there? A. Yes.

'Q. So before when you said you were not, that it not true, is that correct? So before when you stated you were not representing them or that you were representing Public Service, that is untrue or ambiguous? A. I think your question is ambiguous. I didn't say I----

'Mr. DeVoto: I object to that, your Honor.

'The Court: Wait a second. I will sustain the objection because the question is argumentative.'

In closing argument the following occurred during the argument by plaintiff's counsel:

'I do want to say this with respect to Mr. Wieland, the gentleman who can't remember who he is working for. Now, isn't that something? A man comes in, under oath, and he can't remember who his employer is. Now, doesn't that strike you as a little odd that a man can come in and have such a remarkable memory for everything except who he works for, and did he admit, after I said, 'Now, are you sure you work for Public Service Company?' 'Yes, I am sure.' And then, 'Don't you honestly work for Transit Casualty Company?' 'Well, yes.' Now, I don't care, you can say, well, it hasn't too much to do with this lawsuit, you can excuse it in any way you want; Mr. DeVoto didn't excuse it in any way, he just overlooked it, but I can't overlook that type of thing, I can't overlook a man who is employed by the Transit Casualty Company comes in and testifies that he works for somebody else, ladies and gentlemen, it was not true.'

Thereupon, the following occurred outside the hearing of the jury:

Mr. DeVoto: I am going to make a motion at his time for a mistrial, your Honor, on counsel's repeated reference to Transit Casualty Company. It is an attempt to inject insurance in the case and prejudice the jury.

'The Court: Motion overruled. Don't go into that.'

On this appeal defendant takes the position that counsel for plaintiff, not acting in good faith, unjustifiably and deliberately injected the fact that the liability of defendant was covered by insurance, as a result of which defendant was deprived of a fair trial and an excessive verdict rendered on the basis of the ability of defendant to bear the loss and not on the merits of the case. Defendant claims that the subject of insurance was not relevant, and that there was no necessity for any reference to it; that the cross-examination was not justified in order to establish Wieland's interest in the case because, having admitted that he represented St. Louis Public Service Company, no greater interest could be shown by establishing that Mr. Wieland was employed by Transit Casualty Company.

We find no error in the action of the trial court in this connection. It is always competent, insofar as it bears upon a witness' credibility, to show the connection between a witness and a party to the cause. Carlson v. Kansas City, Clay County & St. Joseph Auto Transit Co., 221 Mo.App. 537, 282 S.W. 1037, loc. cit. 1041. Wieland's connection with the insurance company was relevant on the question of the interest of the witness. Whether an investigator for an insurance company has a greater or lesser interest in the outcome of a claim against an insured than an investigator for the insured would have is debatable, but it is undeniable that a different interest is involved, and plaintiff had a right to reveal the true connection between Wieland, the defendant and the insurance company. Furthermore, the element of credibility is implicit in this situation. Having in mind the reference which counsel for defendant made to the witness Wieland both in the cross-examination of plaintiff and in the direct examination of Mr. Wieland it is impossible to escape the conclusion that the jury was given the mistaken impression that Mr. Wieland was an employee of defendant. Wieland testified that in visiting Mrs. Clayton he represented the Public Service Company. Although indirectly true it was only a half truth, and plaintiff's counsel had the right to correct the impression by showing that he was never employed by the Public Service Company but was an employee of Transit Casualty Company even though it was thereby revealed that there was an insurance carrier in the background. In so doing we cannot attribute to plaintiff's counsel the motive of injecting the subject of insurance into the case for an ulterior purpose, Lindsey v. Rogers, Mo.App., 220 S.W.2d 937, loc. cit. 939, Keynote 3, any more than we could could ascribe to defendant's counsel the intention of purposely concealing the facts concerning insurance carriage for selfish advantage. We do not think that bad faith on the part of counsel for plaintiff has been demonstrated. Nor do we think that there was undue repetition of the reference to Transit Casualty Company or that plaintiff's counsel transcended the bounds of legitimate argument, as claimed. There was no extended inquiry in this connection during the cross-examination of Mr. Wieland, and no more emphasis in the final argument than the situation warranted. This point must be resolved against appellant.

The next question is the effect of the action of the court in sustaining an objection to a comment by defendant's counsel in closing argument that plaintiff's chiropractor did not bring his records to court. This involved the court's ruling that defendant could have subpoenaed the records of plaintiff's chiropractor. The record, excerpted from defendant's closing agreement, follows:

'In regard to her injuries that we have been talking about here, about this blood pressure and what I have to phrase--I know of no other way--the remarkable memory of...