Fortner v. Kelly

• Decision Date: 01 May 1933
• Citation: 60 S.W.2d 642,227 Mo.App. 933
• Parties: MINNIE FORTNER, ADMX., ETC., RESPONDENT, v. THOMAS J. KELLY, APPELLANT
• Court: Kansas Court of Appeals

60 S.W.2d 642

227 Mo.App. 933

MINNIE FORTNER, ADMX., ETC., RESPONDENT, v. THOMAS J. KELLY, APPELLANT

Court of Appeals of Missouri, Kansas City

May 1, 1933

Appeal from Circuit Court of Cass County.--Hon. Leslie A. Bruce Judge.

AFFIRMED.

Judgment affirmed.

Silvers & Sheppard for respondent.

Harris & Koontz for appellant.

SHAIN P. J. Bland, J., concurs; Trimble, J., dissents.

OPINION

SHAIN, P. J.-

This is an action commenced in the Circuit Court of Bates County Missouri, by William F. Fortner, now deceased, as plaintiff against Thomas J. Kelly, William Nix and Frank A. Hentschel, defendants. Change of venue was taken to Cass county, Missouri, where trial was had. Judgment was had in the trial court for the plaintiff, as against the defendant Thomas J. Kelly. This defendant duly appealed and the cause was sent to this court. After the case was here on appeal, William F. Fortner, the plaintiff, died and by due process Minnie Fortner, as administratrix of the estate of William F. Fortner, was substituted as the respondent herein.

It appears from the record that William F. Fortner, the owner and the operator of a Ford truck, was driving his truck south on State Highway No. 71 and that when he approached a place on the highway, about one-half mile south of Rich Hill, in Bates county, Missouri, he met a wagon and team traveling north on said highway; that behind said wagon and team there was a Ford coach automobile belonging to the defendant Hentschel but was being driven by defendant William Nix. This Ford occupied by the owner, Hentschel, but being driven by Nix was also proceeding north on said highway. Behind the Ford coach and also traveling north, the defendant Kelly was driving a Hupmobile automobile owned by him in which was his wife and one passenger.

The evidence is conflicting as to many details of occurrence immediately preceding the accident. The people in the Ford sedan testified that Fortner came around the wagon and team and across the center line of the road and into the Ford sedan. Fortner testifies that the driver of the Ford sedan attempted to pass the wagon and team and ran into him.

During the progress of the trial there was a dismissal as to the defendants Nix and Hentschel and the trial concluded with Kelly as the sole defendant. It will suffice for the issues as presented herein to state that the evidence discloses that, regardless of whose fault, the truck being driven by Fortner was caused to be projected across the center line of the left slab of the road going south. It is shown that the car of defendant Kelly coming from the south crashed into the Fortner Ford truck, damaging said truck and injuring Fortner. As there is no claim that the verdict is excessive, we need not amplify here on the extent of injury. The plaintiff alleges that the defendant Kelly was negligent in the following respects, to-wit:

"1st. That defendant saw or by the exercise of the highest degree of care should have seen that the highway at said point was congested and blocked, yet he carelessly and negligently drove his car into the truck of plaintiff.

"2nd. In that he was driving his car at a high, dangerous and reckless rate of speed and carelessly and negligently failed to keep his car under control, considering the amount of vehicular traffic at said place and considering the hill over which defendant had just passed.

"3rd. In that he was driving his car with defective brakes.

"4th. That defendant failed to bring his car to a full and complete stop before he reached the point of congestion and before he struck the plaintiff's truck.

"5th. That defendant, by the exercise of ordinary care could have changed the course of his automobile so as to have avoided striking plaintiff's truck, but carelessly and negligently failed to do so."

Kelly, the appellant, hereinafter referred to as defendant, presents in his brief ten (10) specifications of error as follows:

"I. The court erred in its refusal to discharge the jury when the plaintiff improperly brought into the case the question of insurance for the reason that the question of insurance was not in the case and on the voir dire examination the insurance question had not been mentioned, and the effect of the answers of the plaintiff and of the witness Miller on direct examination by plaintiff's counsel was highly prejudicial.

"II. The court was in error in the giving of plaintiff's instruction No. 1 in which the court mentioned the sum of $ 5,000 as to personal injuries and $ 500 as to property damage without in anywise explaining why the amount was mentioned or stating to the jury that that was the limit of the prayer of the plaintiff, but simply mentioned it without explanation which was highly prejudicial to the defendant.

"III. The court erred in the giving of plaintiff's instruction No. 2 which attempted to cover the whole case, in that the court told the jury in effect that if the defendant's car did not have two complete sets of adequate brakes in good working order, that the plaintiff must prevail. There was no such requirement pleaded and there was no evidence upon which to base the instruction and gave undue prominence to a feature not in the case and it did not necessarily create a condition of negligence, and also because the instruction was broader than the pleadings and did not present the issue of contributory negligence which was pleaded by defendant.

"IV. The court erred in refusing to give Instruction E which was offered by the defendant. There were five charges of negligence and on only two was there any evidence to support the charges. Therefore, Instruction E, which was withdrawing from the attention of the jury one of the charges of negligence upon which there was no proof, was improperly refused.

"V. The court erred in refusing to give Instruction G, which was another instruction withdrawing from the jury the charges of allegations of negligence which were not supported by the evidence and the instruction should have been given for the reasons set out with reference to Instruction E.

"VI. The court erred in refusing to give Instruction H which was a withdrawal instruction withdrawing another distinct act of negligence charged in the petition upon which there was no substantial evidence to support it and it was error to refuse this instruction for the reasons heretofore set out under the Instructions E and G.

"VII. The court erred in refusing to give Instruction I which was also a withdrawal instruction which should have been given as there was no evidence on which to base such an act of negligence. Therefore, it should have been withdrawn from the consideration of the jury.

"VIII. The court erred in refusing to give Instruction J which was an instruction covering the whole case from the standpoint of the defendant. The principle is so general and its application so dependent on facts, that any general statement of the law is of no benefit. Hence, no authorities are cited.

"IX. The court erred in refusing to give Instruction K asked by the defendants which specifically covers this particular case and the particular facts in this case, and specifically presents the theory that if the accident or collision between the defendant and plaintiff was caused solely by a third person or by the combined negligence of a third person and plaintiff, plaintiff cannot recover. This simply being an abstract proposition of law dependent upon the particular facts, we have cited no authorities, because authorities would be of no help unless the facts were exactly the same, and no such case is found.

"X. The defendant complained of the action of the court in permitting the witness Dr. Crabtree to testify to the reputation and standing of two other doctors who were not witnesses and whose testimony was not offered. There being no similar situation discovered in the books, we conceive it to be a matter of first impression and no authorities are cited."

The first specification of error presents a question of oft recurring frequency. There are so many ways, legal and otherwise, of getting the fact of the existence of liability insurance before the jury that it is the exception for liability cases to reach a court of review without involving some phase of the issue. Much judicial discussion has resulted wherein distinguishment of facts do not entirely harmonize.

The basis of all complaint on the insurance issue is a somewhat justifiable presumption that the jury's knowledge of the insurance works prejudice to the defendant. The thought presents itself that there would be less prejudicial results if a frank and open statement were made by the court that insurance was involved and an examination of the panel under oath as to whether or not the fact of insurance would in anywise influence them in the consideration of the case. It may be that a jury, with a full knowledge of the fact being thus placed upon honor, would be less prejudicially influenced than when brought into the case under conditions where it is made manifest that the defendant is trying to keep it out. A reading of the cases justifies the assertion that when the fact of insurance is properly admitted over the objections of counsel that the psychological prejudicial effect is greater than if admitted under a rule such as is above presented.

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