Decker v. Liberty

• Decision Date: 05 June 1931
• Docket Number: No. 29664.,29664.
• Citation: 39 S.W.2d 546
• Parties: DECKER v. LIBERTY.
• Court: Missouri Supreme Court

39 S.W.2d 546

DECKER v. LIBERTY.

No. 29664.

Supreme Court of Missouri, Division No. 2.

June 5, 1931.

Appeal from Circuit Court, St. Louis County; Jerry Mulloy, Judge.

Action by Cecile Decker against James A. Liberty. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Patrick A. Lavin and William Kohn, both of St. Louis, for appellant.

Brackmann & Versen, of St. Louis, for respondent.

WESTHUES, C.

Plaintiff sued defendant for personal injuries alleged to have been sustained as a result of a collision of the automobile in which she was riding, and the car driven by defendant. Plaintiff's petition pleads that defendant's negligence caused the collision, and asks $15,000 as compensation for her injuries. A trial resulted in a verdict for defendant. Plaintiff was denied a new trial and she appeals.

Since we have concluded that the cause must be reversed and remanded for a new trial, only a short statement of the case will be made.

Plaintiff was riding in a Ford coupé driven by her husband and accompanied by her mother-in-law. Defendant was also driving a Ford coupé. The collision occurred at or near the intersection of Olive street and Denny road. Olive street runs east and west, and Denny road, north and south. The car in which plaintiff was riding was traveling east on Olive street road and defendant's north on Denny road.

According to plaintiff and her witnesses, the car in which she was riding was traveling on the south side of Olive street, going east at a rate of speed not exceeding twenty miles per hour, and slowed down considerably as it approached Denny road. That defendant's car was going north on Denny road at a high rate of speed, on the west or left side of the street. That defendant attempted to cut the corner at the intersection and struck the car in which plaintiff was riding, while it was on the south side of Olive street and west of the west line of Denny road, causing it to turn over. Plaintiff was found under the car, and, according to her witnesses severely injured.

Defendant's testimony tended to show that he was traveling north on the east side of Denny road. At this point there is a sharp upward grade toward Olive street. Defendant further testified he was driving in low gear at about five miles an hour and made a left hand turn on Olive street; that he did not cut the corner, and plaintiff struck him near the center of the intersection east of the center line of Denny road.

Appellant has briefed two assignments of error. The first complains of the trial court's action in refusing to permit plaintiff to inquire on the voir dire examination of the veniremen, whether any of them knew any one connected with the Western Automobile Insurance Company. The record on this point discloses the following:

"Mr. Lavin: Mr. Brackman, out of the hearing of the jury I will ask you, will you admit that the Western Insurance Company are defending this suit on behalf of this defendant?

"Mr. Brackman: I will admit that Mr. Liberty has a policy of insurance in the Western Automobile Insurance Company and we have been employed by them and are now acting in their behalf and also in behalf of Mr. Liberty himself.

"Mr. Kohn: We are going to ask the jury, if the court please, whether they know anybody connected with this Western Automobile Insurance Company.

"The Court: Let the record show that the request of the plaintiff is denied. Don't ask that question."

To which action and ruling of the court counsel for plaintiff then and there duly excepted and still excepts.

This ruling of the court was reversible error. Since it was admitted that the company referred to was the insurer of defendant and employed attorneys to defend the suit, it follows that it was vitally interested in the outcome of the litigation. Therefore the attorney for plaintiff had a right to make the inquiry suggested, to the end that he might intelligently strike his allotted number of names from the list of qualified jurors. The inquiry might also have developed a legal challenge for cause. The parties to a civil suit are entitled to eighteen qualified jurors. It is not an answer to this contention that during the trial no fact developed tending to prove that defendant was insured by the named company. Who can say but that some member of the jury might have been closely connected with the company...