150 S.W. 1088
LOVEY GALENTINE, RESPONDENT,
AXEL BORGLUM ET AL., APPELLANTS.
Kansas City Court of Appeals, Missouri.
April 7, 1941.
[150 S.W. 1089]
Appeal from Gentry Circuit Court. — Hon. Ellis Beavers, Judge.
JUDGMENT AS TO WM. COE, REVERSED AND REMANDED. JUDGMENT AS TO REMAINING DEFENDANTS REVERSED.
A.F. Harvey and Mayer, Conkling & Sprague for appellants, Axel Borglum, John A. Knudsen and Edward Knudsen.
(1) The trial court erred in refusing to give to the jury, over the exception of these appellants, the peremptory Instruction "C" in the nature of a demurrer to all the evidence in the case, which said Instruction "C" was requested by these appellants at the close of all the evidence in the case. (a) The evidence in the case as a whole establishes that William Coe was not an agent, servant or employee of these appellants. The trial court correctly ruled that the evidence was not sufficient to establish the relationship of master and servant between these appellants and William Coe, correctly ruled that the doctrine of respondeat superior did not apply here, and correctly refused to submit plaintiff's case to the jury as against these appellants upon that theory. The evidence in the case does establish that, as to these appellants, Coe was an independent contractor engaged in an independent trucking business of his own, and that either these appellants nor any one else had any control or right of control over Coe, or his trucking business, or his truck driving. Dorsett v. Pevely Dairy Co. (Mo. App.), 124 S.W. (2d) 624; Vert v. Met. Life Ins. Co., 342 Mo. 629, 117 S.W. (2d) 252; Skidmore v. Haggard (Mo.), 110 S.W. (2d) 726; Barnes v. Real Silk Hosiery, 341 Mo. 563, 108 S.W. (2d) 58; Bernat v. Star-Chronicle Pub. Co. (Mo. App.), 84 S.W. (2d) 429. (b) There was no evidence upon which a finding could be based that Coe, the independent contractor, was incompetent or unfit to drive the truck in the collection and delivery of milk cans, which was the work he contracted to do. Burns v. McDonald Mfg. Co., 213 Mo. App. 640, 645, 646; Allen v. Lumber Co., 171 Mo. App. 492, 501; Tucker v. Telephone Co., 132 Mo. App. 418, 426; Lee v. Iron Works, 62 Mo. 565; Igo v. Boston R. Co. (Mass.), 90 N.E. 574, 575; Naniko v. Transit Co., 125 N.Y. Supp. 389, 391; Jas. Stewart & Co. v. Newby, 266 Fed. 287, 291; Pittsburgh R. Co. v. Thomas, 174 Fed. 591; Morstad v. Railroad Co. (N. Mex.), 170 Pac. 886, 888; James v. Coal Co. (Iowa), 169 N.W. 121, 124. (2) The court committed reversible error in giving plaintiff's Instruction No. 1, over the objection and exception of these appellants. (3) The trial court erred in giving to the jury, over the objection and exception of these appellants, Instruction No. 2, requested by plaintiff, which authorized the jury to allow plaintiff damages for loss of past and future earnings. The evidence failed to support such submission in the measure of damages instruction. Chilcutt v. Le Clair (Mo. App.), 119 S.W. (2d) 1; Putnam v. Unionville Granite Works (Mo. App.), 122 S.W. (2d) 389. (4) The trial court erred in giving to the jury, over the objection and exception of these appellants, Instruction No. 7, which was given by the court to the jury at the request of the plaintiff, and which told the jury that the opinions of experts "are merely advisory and not binding upon the jury." Conduitt v. Trenton Gas & Elec. Co., 326 Mo. 133, 144, 145, 41 S.W. (2d) 21; Scanlon v. Kansas City, 325 Mo. 125, 28 S.W. (2d) 84, 95; Davis v. Independence, 330 Mo. 201, 49 S.W. (2d) 95; Phares v. Century Elec. Co., 236 Mo. 961, 968, 82 S.W. (2d) 91; Zeikle v. St. Paul, etc., R. Co. (Mo. App.), 71 S.W. (2d) 154, 156. (5) The trial court, over the exception of these appellants, erred in overruling and denying the motion of these appellants to discharge the jury panel which was made by these appellants during the voir dire examination of the jury panel because plaintiff's counsel, in an attempt to prejudice the jury, injected into the case the suggestion to the jury that one or all defendants were protected by liability insurance. (a) It is the well-established rule in Missouri that where good faith is not shown, it is prejudicial to the defendants in an automobile accident case to have injected into the case the suggestion that the defendants are protected by liability insurance and therefore will not or may not have to pay the judgment rendered, but that an invisible insurance corporation will ultimately have to bear the burden of the payment of any judgment rendered. Carter v. R.I. Bus Lines (Mo.), 139 S.W. (2d) 458, 461; Rytersky v. O'Brine, 355 Mo. 22, 27, 28, 70 S.W. (2d) 538, 540; Olian v. Olian, 332 Mo. 689, 693, 698, 699, 59 S.W. (2d) 673, 677; Hannah v. Butts, 330 Mo. 876, 51 S.W. (2d) 4; Robinson v. McVay (Mo. App.), 44 S.W. (2d) 238, 240. (b) The voir dire question asked by plaintiff's counsel was an obvious attempt to convey to the jury the idea and suggestion that these appellants or all the defendants were protected by liability insurance on the automobile collision in this case. Plaintiff's counsel took the deposition of defendant Borglum on November 24, 1939, and then asked Borglum the question and was then told that there was no liability insurance protection in the case. The trial began on March 20, 1940. Upon the trial, and prior to asking the insurance question of the jury panel, plaintiff's counsel made no inquiry of any of defendants' counsel with regard to liability insurance coverage, made no statement to either the court or defendants' counsel that he believed or had any reason to believe there was any insurance coverage in the case and asked no permission of the court to ask any such question. The conduct and behavior of plaintiff's counsel, the statements made and questions asked by plaintiff's counsel of the witnesses during the inquiry into the insurance question out of the hearing of the jury, the argument of plaintiff's counsel to the jury about "the insurance company," all clearly reflect an intentional effort to prejudice the jury by causing the jury to believe there was insurance coverage when in truth and in fact there was not and plaintiff's counsel had no cause to believe that there was. Where no good reason appears of record for the injection of the insurance question into the case, the appellate courts indulge the legal presumption that it was not done in good faith. The trial court recognized the guiding principles laid down by the appellate courts that plaintiff's counsel, before asking such a question, should first state out of the hearing of the jury that he believes there is insurance coverage, ask defendants' counsel whether there is, or prove the existence of such coverage, but the trial court nevertheless declined to discharge the jury panel. It affirmatively appears here that there was no insurance coverage, and that plaintiff's counsel had no reasonable cause to believe there was. Carter v. R.I. Bus Lines (Mo.), 139 S.W. (2d) 458, 462; Olian v. Olian, 332 Mo. 689, 692, 698, 59 S.W. (2d) 673; Wack v. Schoenberg Mfg. Co., 331 Mo. 197, 53 S.W. (2d) 28, 30; Smith v. Star Cab Co., 323 Mo. 441, 19 S.W. (2d) 467, 469; Maurizi v. Western C. & M. Co., 321 Mo. 378, 11 S.W. (2d) 268, 274. (6) The trial court, over the exception of these appellants, erred in refusing the request of these appellants, after the testimony taken conclusively established there was no liability insurance coverage in the case, to instruct the jury that plaintiff's counsel had no authority to ask the insurance question, and the court likewise erred in refusing to instruct the jury that no insurance company was defending the case. (7) The trial court erred in refusing, upon the motion of these appellants and over the exception of these appellants, to discharge the jury because of the misconduct and the prejudicial argument of plaintiff's counsel in telling the jury in his final argument to the jury at the close of the case that he (plaintiff's counsel) wanted the jury to "find out about the insurance company and see if you (the jury) don't think we (plaintiff and his attorney) are right." The argument was rendered more prejudicial by the insurance question asked by plaintiff's counsel on voir dire and by the refusal of the court to state to the jury that there was no liability insurance coverage in the case. Rytersky v. O'Brine, 335 Mo. 22, 28, 70 S.W. (2d) 538; Hannah v. Butts, 330 Mo. 876, 51 S.W. (2d) 4. (8) The trial court, over the exception of these appellants, erred in admitting in evidence the testimony of William Coe that prior to September 10, 1938, there was a collision between the Frank Lykins car and Coe's truck, and that there was a collision between the Oliver Jennings car and Coe's truck, because such testimony was immaterial to any issue in the case, had no probative value and did not tend to prove (a) incompetency of Coe, (b) that Coe could not safely operate a truck, (c) that Coe was ever negligent, (d) that the collision in issue resulted from any incompetency of Coe, (e) that any incompetency of Coe was or should have been known to appellants, or (f) that after knowledge, actual or constructive, of any incompetency of Coe, these appellants thereafter negligently permitted Coe to haul milk to their plant. There being no evidence of prior negligence and no evidence of incompetency to safely operate a truck, such excursions into the facts and circumstances of other accidents under different conditions at different places were not only not material to any issue on trial, but also opened the door to side issues which misled and prejudiced the jury. Friedman v. United Rys. Co., 293 Mo. 235, 245; Hipsley v. Railroad, 88 Mo. 348, 354; Horr v. Ry. Co., 156 Mo. App. 651; Jones v. Hedges (Cal.), 12 Pac. (2d) 111, 116; Anderson v. Eaton (Okla.), 68 Pac. (2d) 858, 861; Neely v. Railroad Co. (S.C.), 117 S.E. 55, 56; Alaga Coach Lines v. McCarroll (Ala.), 151 So. 834, 836;...