Gerran v. Minor
| Citation | 192 S.W.2d 57 |
| Decision Date | 15 January 1946 |
| Docket Number | 26868 |
| Parties | GERRAN v. MINOR |
| Court | Court of Appeal of Missouri (US) |
'Not to be reported in State Reports.'
Karl P Spencer and David J. Tompkins, both of St. Louis, for appellant.
Francis R. Stout and J. Neal LaVelle, both of St. Louis, for respondent.
McCULLEN
This action was brought by respondent, as plaintiff, against appellant, as defendant, to recover damages for personal injuries alleged to have been sustained by plaintiff as the result of defendant's negligence. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff and against defendant in the sum of $ 5,700 actual and $ 550 punitive damages. After an unavailing motion for a new trial, defendant duly appealed.
The accident out of which this action arose occurred on Thanksgiving night, November 25, 1943, between 8:45 and 9:30 o'clock, on Easton Avenue near its intersection section with Pendleton Avenue in the City of St. Louis, Missouri. Easton Avenue runs generally east and west. Pendleton Avenue runs north and south. Pendleton Avenue comes into Easton Avenue from the south, offsets or jogs to the west about a half block and then proceeds northward from Easton Avenue. Plaintiff was attempting to walk across Easton Avenue from the north curb to the south curb thereof, where Pendleton Avenue enters Easton Avenue from the south, but was struck by an automobile driven by defendant before he reached the south curb of Easton Avenue.
Plaintiff's petition alleged that defendant was guilty of numerous acts of negligence, but he submitted his case to the jury solely on the humanitarian doctrine.
Defendant's answer to plaintiff's amended petition contained a general denial, coupled with a plea of contributory negligence on the part of plaintiff.
Defendant earnestly insists that the trial court committed prejudicial error in permitting plaintiff's counsel to interrogate the jurors on voir dire about their interest in or connection with the Commercial Casualty Insurance Company.
It appears that plaintiff's suit was originally begun against Dr. Cornell, who was the owner of the automobile driven by defendant at the time of the accident. Dr. Cornell was not in the automobile at the time of the accident and the cause as to him was dismissed by plaintiff before trial.
At the beginning of the trial plaintiff's counsel, out of the hearing of the jurors, stated to the court that he understood that a public liability policy had been written by an insurance company covering the automobile involved in this accident, and that he wished to inquire of the jurors if any of them had worked for or were interested in the insurance company. Plaintiff's counsel stated that Dr. Cornell had been dropped from the case because of plaintiff's inability to prove the agency of defendant Minor for Dr Cornell, but said counsel presented to the court testimony of defendant in a deposition showing that defendant got Dr. Cornell's automobile about 6 o'clock on the evening in question from the doctor himself; that Dr. Cornell had come to the hotel where defendant was working and picked up defendant in the car and told defendant to take the doctor to the Ambassador Theatre and to bring the car back to the Ambassador Theatre and pick the doctor up when the doctor was ready; that the doctor said he would call defendant when he was ready; that Dr. Cornell voluntarily turned over to defendant at the Ambassador Theatre the keys to his automobile with the intention on the part of Dr. Cornell that defendant should drive the car away from the theatre and bring it back for the doctor after the show was over.
Plaintiff's counsel stated to the court that it was his understanding that the policy of liability insurance covering Dr. Cornell's automobile also covered anyone driving the same with the doctor's permission; that the original employment of defendant's counsel in the case was by the insurance company that had issued the policy mentioned, and that an investigation of the case had been made by the office of defendant's counsel on behalf of the insurance company.
Plaintiff's counsel read to the court parts of defendant's deposition wherein defendant had testified that it was his habit to drive the automobile for the doctor and to go on various errands for him during the past eight years, and that the doctor paid him for doing this work; that when he drove the doctor to the Ambassador Theatre he got one-half dollar to a dollar; that he (defendant) would lock the car and keep the keys until he received a call from the doctor; that on the night in question three hours would intervene between defendant's completion of his work at the hotel and the doctor's call to him to bring the car to the theatre.
Defendant's counsel stated to the court that plaintiff's counsel was not acting in good faith in injecting into the case a suggestion that an insurance company was interested in the matter, and objected to plaintiff's counsel introducing the testimony of defendant in the deposition mentioned. During the progress of the hearing on this issue defendant's counsel stated to the court a number of times that there was no insurance covering the accident; that he did not represent any insurance company in the defense of the action against the defendant Minor, but was acting under private employment of Minor only.
It was the contention of plaintiff's counsel in the hearing on this issue before the court, all of which was out of the hearing of the jury, that the accident occurred while the automobile in question was being used by defendant with Dr. Cornell's permission. In this connection, counsel for plaintiff stated to the court:
'The Court: Do I understand this automobile, while it was out on this permissive use, did the alleged damage?
J. Neal LaVelle, one of plaintiff's attorneys, testified before the court that at the time Dr. Cornell was a defendant in the case, John Arnold, who was in the office of defendant's counsel, called him and asked him to come over to the office to discuss a matter with him; that Mr. Arnold asked him for a medical report and items of expense that Mr. Gerran (plaintiff) had incurred, and requested LaVelle to arrange to have plaintiff come to the office to make a statement; that Arnold told LaVelle that as soon as he got the information together he would be in a position to discuss settlement of the case; that there was insurance on the automobile and that the driver was covered. Defendant's counsel objected to all this testimony and moved that it be stricken out, but was overruled by the court. LaVelle further testified that Arnold told him at that time that he, Arnold, was going to discuss with defendant's counsel, Mr. Spencer, the matter of letting LaVelle interview the driver of the car at the same time that defendant's counsel took the statement of Mr. Gerran; that when Mr. Arnold told him that the automobile was covered by insurance he asked what company it was and Arnold told him that it was one of Karl Spencer's Loyalty group. Defendant's counsel made numerous objections to such testimony as being irrelevant and moved that it all be stricken out, and added: 'That is made out of whole cloth just like this testimony regarding the insurance.' LaVelle further testified that Arnold told him that Mr. Minor (defendant) had taken Dr. Cornell and his wife to the show and was supposed to pick them up after the show, but because of the accident he was delayed and unable to do so. LaVelle further testified that his interview with Mr. Arnold in the office of defendant's counsel took place after he, LaVelle, had written a letter to Dr. Cornell stating that he was representing the plaintiff.
During the hearing on this issue it was stipulated by counsel for both sides that John T. Arnold, referred to in LaVelle's testimony, had been in the Navy and was then on foreign service in the Pacific.
Karl P. Spencer was duly sworn as a witness and testified before the court that he was attorney for defendant, Isaac Minor. Mr. Spencer read to the court parts of the deposition of Minor wherein Minor had testified that on the day in question his purpose in driving out in the neighborhood of Pendleton Avenue and Easton Avenue was to call for his friend Otto Watkins at the home of Watkins' aunt who had invited Watkins out to dinner; that he didn't have any business to attend to there for Dr. Cornell; that he had never used the doctor's car before on his (Minor's) own business; that the doctor never gave him permission to use the car on his own business while the doctor was in the theatre. In this connection, the deposition of defendant, as read to the court by defendant's counsel, Spencer, showed:
Mr Spencer read to the court a portion of the deposition of Dr. Cornell which had been taken by plaintiff's counsel, Mr. LaVelle, in May, 1944, wherein the doctor had testified that Minor had let the doctor and his wife out at the Ambassador Theatre. Further testimony of the doctor in...
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