Gildehaus v. Jones

• Decision Date: 10 March 1947
• Docket Number: 39800
• Citation: 200 S.W.2d 523,356 Mo. 8
• Parties: Evelyne Gildehaus, Appellant, v. Harvey Jones, Doing Business as Jones Truck Line, and Jessie D. Neill
• Court: Missouri Supreme Court

200 S.W.2d 523

356 Mo. 8

Evelyne Gildehaus, Appellant, v. Harvey Jones, Doing Business as Jones Truck Line, and Jessie D. Neill

No. 39800

Supreme Court of Missouri

March 10, 1947

Appeal from Circuit Court of City of St. Louis; Hon. Waldo C Mayfield, Judge.

Affirmed.

Louis E. Miller, Miller & Landau and B. Sherman Landau for appellant.

(1) It was unduly prejudicial to plaintiff to have her insurance coverage disclosed to the jury, and the court erred in refusing to discharge the jury and call a new panel. Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961; Rytersky v. O'Brine, 335 Mo. 22, 70 S.W.2d 538; Landau v. Fred Schmitt Contracting Co., 179 S.W.2d 138. (2) It was prejudicial error to permit defendants to cross-examine plaintiff collaterally regarding her marriages. Bush v. Kansas City Public Serv. Co., 350 Mo. 876, 169 S.W.2d 331; Khan v. Zemansky, 59 Cal.App. 324, 210 P. 529; State ex rel. Dick & Bros. Quincy Brewing Co. v. Ellison, 287 Mo. 139, 229 S.W 1059; Southern Pac. Co. v. Ralston, 67 F.2d 958. (3) It is improper to cross-examine a party generally regarding previous claims where there is no contention that the injuries for which he was previously compensated in whole or in part are the same as those for which recovery is sought in the pending action. Marrah v. J. & R. Motor Supply Co., 165 S.W.2d 271; Dietz v. Southern Pacific R Co., 225 Mo.App. 39, 28 S.W.2d 395; Dent v. Monarch Life Ins. Co., 231 Mo.App. 283, 98 S.W.2d 123. (4) The harmful effect of the erroneous cross-examination was conclusively demonstrated by the jury's verdict against the plaintiff. State v. Shipley, 174 Mo. 512, 74 S.W. 612; Gurwell v. Jefferson City Lines, Inc., 192 S.W.2d 683; State v. Byrnes, 177 S.W.2d 909. (5) The court erred in refusing plaintiff's refused Instruction 1, on burden of proof, which was offered to complement defendants' Instruction 3, on burden of proof, and to neutralize the vice of its misleading quality. Mackler v. Barnert, 49 S.W.2d 244.

Moser, Marsalek, Dearing & Carpenter and Will B. Dearing for respondents.

(1) As the transcript of the record reflects that the plaintiff did not interpose an objection or move for a mistrial following the statement to the jury by counsel for the Automobile Club Inter-Insurance Exchange concerning its interest in the case and did not thereafter assign such alleged adverse ruling of the trial court as ground for a new trial in the motion for a new trial, there is nothing before this court for review. Bremer v. Simpson, 226 S.W. 947; Ross v. Kansas City, Fort Scott & Memphis Railroad Co., 141 Mo. 390; Adelsberger v. Sheehy, 332 Mo. 954; Dougherty v. Whitehead, 31 Mo. 255. (2) For the purpose of establishing plaintiff's identity and to develop the truth concerning her alleged injuries, the cross-examination of plaintiff as to her marriage was competent. Bartlett v. Kansas City Public Serv. Co., 349 Mo. 13. (3) In the absence of an objection to questions propounded to plaintiff on cross-examination concerning her prior claim and where the motion for a new trial failed to show that such assignment was therein raised, there is nothing preserved for review by this court. Menard v. Goltra, 328 Mo. 368; Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517. (4) The court did not err in refusing plaintiff's refused Instruction 1 because Instruction 3 given at the request of defendants, correctly declared the law concerning the burden of proof. Rouchene v. Gamble Construction Co., 338 Mo. 123.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Action for $ 9,763.44 for personal injuries alleged to have been proximately caused by defendants' negligence in driving a tractor-trailer truck into collision with the automobile driven by plaintiff at the intersection of Sulphur and Chippewa Streets in St. Louis, July 14, 1945. The plaintiff's case was submitted to the jury upon negligence under the humanitarian rule; the jury returned a verdict for defendants; and plaintiff has appealed from the judgment subsequently rendered.

Plaintiff-appellant contends that, at the outset of the trial, she was placed in a prejudicial position by the disclosure to the jury of the fact she was insured against property damage to her automobile; it is said a mistrial should have been declared for that reason. Plaintiff-appellant further assigns errors of the trial court in permitting defendants-respondents to cross-examine plaintiff concerning her marriages, and concerning another claim for personal injury; and in the refusal of plaintiff-appellant's proffered Instruction No. 1.

Plaintiff's petition was originally in two counts, for personal injuries and for damage to her automobile. Plaintiff had a contract of insurance protecting her against property damage to her automobile, and the Insurance Company was permitted to intervene in the action upon a theory of subrogation. Thereafter, plaintiff dismissed the count for property damage, whereupon the court entered an order rescinding the order permitting the Insurance Company's intervention. These orders were entered in the Assignment Division (Division No. 1, Circuit Court of the City of St. Louis). Counsel for the Insurance Company did not understand the order allowing intervention had been rescinded, and appeared in the trial court (Division No. 7) and made an opening statement telling the jury of Insurance Company's intention to prove that plaintiff had a contract of insurance under the terms of which her car was insured for $ 675; that the car was damaged to the extent of $ 475 of which plaintiff, under the terms of the policy, was to pay the first $ 22.50; and that the Insurance Company had an interest "in that automobile to the extent of $ 452.50." The judge of the Assignment Division, having learned counsel for the Insurance Company had failed to apprehend the order permitting intervention had been rescinded, appeared near the trial courtroom and signified a wish to speak with the trial judge and counsel in chambers. The trial judge and his official reporter, the judge of the Assignment Division, and counsel retired to the trial judge's chambers; the judge of the Assignment Division reiterated the ruling rescinding the order allowing Insurance Company's intervention; and the trial judge announced the Insurance Company would not be permitted to further participate in the trial. (Counsel for the parties, plaintiff and defendants, do not agree as to the import of further conversation between the trial judge and counsel for the parties.) The trial judge and reporter, and counsel for the parties plaintiff and defendants then returned to the trial courtroom and into the presence of the jury; and the trial judge orally advised the jury that "at the beginning or outset of the trial, we had three parties litigant; there are now remaining only two of those parties, namely, the lady here as plaintiff, and Jones and the driver as the defendant." The trial court further told the jury the Insurance Company was no longer in the case, "not by reason of anything done by the parties to this litigation but by reason of a legal ruling" made by the judge of the Assignment Division, and that they, the jury, were not to "take into consideration in any manner whatsoever the question of any damages to the automobile involved in the accident, property damage." Plaintiff objected to the action of the court in orally stating to the jury "that the element of property damage is out of the case for the reason that the statement would imply that some arrangement or agreement had been reached by or between the parties . . . to settle or dispose of the plaintiff's claim for damages to her automobile." Plaintiff in her motion for a new trial assigned error of the trial court in refusing "plaintiff's request to discharge the jury after orally instructing the jury in substance and effect that the question of insurance was no longer in the case."

No request for a declaration of a mistrial, because of any question of insurance being prejudicially present in the case, shows in the transcript of the record as originally prepared by the court reporter and tendered to counsel for their approval. Upon the record as shown by the transcript as originally prepared, the error assigned herein (of refusing to declare a mistrial on the ground plaintiff's insurance was prejudicially present in the case) should not be considered herein upon appeal because such transcript does not show plaintiff's counsel made known to the court that plaintiff desired the declaration of a mistrial upon that ground (Civil Code of Missouri, sec. 122, Laws of Missouri 1943, p. 389, Mo. R.S.A. sec. 847.122); however, plaintiff's counsel refused to agree to the transcript so prepared, contending a request for a mistrial upon that ground had been made in judge's chambers, and filed a motion (supported by affidavits) to correct the transcript to so show. The trial court considered the motion and supporting affidavits, and heard the testimony of the reporter upon the question; overruled the motion to correct the transcript; and certified the transcript, as originally prepared and tendered by the reporter, to be a correct transcript of the proceedings in the cause. Plaintiff contends that, "under the circumstances," the request for a declaration of a mistrial should have been shown in the transcript, and that the trial court erred in overruling plaintiff's motion directed to that end.

Where a full transcript of the record upon appeal is filed, it is not necessary for the trial judge to authenticate it, if it is agreed to by the parties. Of course, if they cannot agree as to any part of it, the difference must be settled by the judge and he must sign it. Connoley v. Beyer Crushed Rock Co. et al., 355 Mo. 684...