Conrad v. Twin Oaks, Inc.

• Decision Date: 06 March 1961
• Docket Number: No. 23197,23197
• Citation: 344 S.W.2d 286
• Parties: Della CONRAD, Plaintiff-Appellant, v. TWIN OAKS, INC., a Corporation, and Otto F. Long and A. J. Hicks, d/b/a Southside Moving and Storage Company, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 286

344 S.W.2d 286

Della CONRAD, Plaintiff-Appellant, v. TWIN OAKS, INC., a Corporation, and Otto F. Long and A. J Hicks, d/b/a Southside Moving and Storage Company Defendants-Respondents.

No. 23197.

Kansas City Court of Appeals, Missouri.

March 6, 1961. of clothing and personal effects left in the

front closet of an apartment when she moved, against the

owner and the movers. The Circuit Court, Jackson County, J.

Donald Murphy, J., rendered a judgment for the defendants,

and the plaintiff appealed. The Kansas City Court of

Appeals, Hunter, P. J., held that the refusal to declare a

mistrial because of the mention of 'no insurance' was not an

abuse of discretion.

Edward F. Aylward, Kansas City, for appellant.

Frank J. O'Leary, O'Leary & O'Leary, Kansas City, for respondent Southside Moving and Storage Co.

A. E. Margolin, F. Philip Kirwan, Robert C. Richard, Kansas City, for respondent Twin Oaks, Inc.

HUNTER, Presiding Judge.

This is a suit by plaintiff-appellant, Della Conrad, against defendants-respondents, Twin Oaks, Inc., a corporation; and Otto F. Long and A. J. Hicks, d/b/a Southside Moving and Storage Company, for $2,276.95; and punitive damages in the sum of $2,500 against Twin Oaks, Inc. Plaintiff, in two counts, sued the defendants for the loss of certain of her clothing and personal effects which she states she left in the front closet of her apartment in Twin Oaks Apartment when she moved to a new address. She employed Southside Moving and Storage Company to move her belongings, and in Count I asks damages for failure to deliver. In Count II she places responsibility for the loss of clothing on Twin Oaks, Inc. The jury-tried case resulted in a defendants' verdict and judgment.

The sole contention of error on this appeal is that the trial court wrongfully refused to declare a mistrial when counsel for the moving company elicited from respondent Hicks the statement that there was no insurance in the case.

The complained of incident occurred late in the trial during the direct examination of defendant Hicks.

'Q. Did anyone ever talk to you about any claim of any kind (prior to receiving the summons and petition in this case)? A. No. * * *

'Q. Did * * * Mrs. Conrad ever call you about this matter at any time? A. No.

'Q. Either before you were served or after? A. No, she did not.

'Q. What division of the business do you have charge of, or divisions of the business do you have charge of? A. Well, I handle general administrative affairs and claims and insurance, office management.

'Q. By that you mean insuring goods and so on? A. That's right.

'Q. There is no insurance in this case. A. No.'

At that point appellant's counsel objected to the mention of insurance; asked that the jury be directed to disregard the answer; and asked for a mistrial. The trial court sustained the objection, and in the manner suggested by appellant's counsel instructed the jury to entirely disregard the question and answer with reference to insurance; but refused to discharge the jury.

It is appellant's position that the mention of no insurance was prejudicially erroneous and of such a nature that it could not be cured by any instruction to disregard. This is the first time in this state that this precise contention has been raised for appellate review.

Respondent Moving and Storage Company's counsel asserts he did not ask the question in bad faith but that it resulted impulsively as a result of the preceding answer which he felt might be misconstrued by the jury to have indicated liability insurance coverage. With commendable frankness he admits that by hindsight the asking of the question was error but denies that it required a mistrial to be declared.

It is the well established general rule that any plea of poverty as such ordinarily is immaterial to the issues of the case and has no proper place or proper purpose in the trial of the law suit. See, Mo.Digest Trial k125(4); Gunter v. Whitener, Mo.App., 75 S.W.2d 588, 591; Monpleasure v. American Car & Foundry Co., Mo.App., 293 S.W. 84; Davis v. Quermann, Mo.App., 22 S.W.2d 58, 60. The usual purpose of such a plea is to arouse jury sympathy for a party through the mention of circumstances of poverty and hardship beyond the issues of the case. It is the converse of the mention of insurance, occasionally adroitly injected into a case for the purpose of prejudicing the jury in favor of a party by inferring a substantial verdict will not have to be paid by the losing litigant but rather by a wealthy insurance company.

We have no hesitancy in holding and do hold that where, as here, insurance coverage is outside of the issues of the case, and where nothing has been done or said from which the jury might reasonably infer that the defendant is protected by insurance against the loss in litigation it is both improper and erroneous for the defendant to show that he does not have insurance protection. This is the established rule in the majority of jurisdictions, and is in accord with the companion rule--that it is improper and erroneous to go beyond the legitimate issues in the case and show that a defendant is protected by insurance against the loss in litigation. See, Annotation, Showing As to Liability Insurance, 4 A.L.R.2d 761, 773; Clayton v. Wells, 324 Mo. 1176, 26 S.W.2d 969; Wallace v. Whitzel, Mo.App., 324 S.W.2d 157, 161; McCaffery v. St. Louis Public Service Co., ...