Gooch v. Avsco, Inc., 47884

• Decision Date: 14 November 1960
• Docket Number: No. 47884,No. 1,47884,1
• Citation: 340 S.W.2d 665
• Parties: John F. GOOCH, Respondent, v. AVSCO, INCORPORATED, and Robert L. Fetters, Appellants
• Court: Missouri Supreme Court

Page 665

340 S.W.2d 665

John F. GOOCH, Respondent, v. AVSCO, INCORPORATED, and Robert L. Fetters, Appellants.

No. 47884.

Supreme Court of Missouri, Division No. 1.

Nov. 14, 1960.

Rehearing Denied Dec. 12, 1960.

Robert E. Coleberd, Hale, Coleberd, Kincaid & Waters, Liberty, for appellants.

Stephen R. Pratt, Thomas E. Hudson, Hudson, Cavanaugh & Fox, by Thomas E. Hudson, Kansas City, for respondent.

COIL, Commissioner.

Mrs. Gooch, respondent's wife, was a passenger in an automobile being operated north over the ASB Bridge in Kansas City when that car was struck by an automobile driven by appellant Robert L. Fetters as the agent of appellant Avsco, Incorporated. See Gooch v. Avsco, Inc., Mo., 337 S.W.2d 245, for a statement of the circumstances of the accident. We shall hereinafter refer to the parties as they were designated in the trial court. Plaintiff sought damages allegedly accruing to him as a result of his wife's injuries and defendants (prior to January 1, 1960) have appealed from a judgment for plaintiff in the sum of $13,500.

Defendants contend that the trial court erred in refusing to discharge the jury panel as a result of inquiries by plaintiff's counsel on voir dire. The record shows the following questions and answers during the examination of the panel:

'Q. Is there any member of the jury panel who is a stockholder in the Central Surety and Insurance Company? Is there any member of the jury panel who either works for the Central Surety and Insurance Company or any of your relative employed by the Central Surety and Insurance Company? Is there any member of the jury panel who has a policy issued by the Central Surety and Insurance Company? I take from your silence that none of your have. Is there any member of the jury panel that has ever been a defendant in a law suit or been sued for damages arising out of an automobile accident? Thank you. Has any member ever been involved in an automobile accident? Well, we'll start down the list then. Yes, sir, what is your name?

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'Q. Is there any member of the jury panel or any of your immediate family that is a claim adjuster or handles claims or investigations for any insurance companies? Any claims whatsoever? A. Yes, sir. I'm a sales representative for the Farmers' Insurance Group.

'Q. Sales representative for Farmers'. What is your name, sir? A. Groner.

'Q. Where do you live, sir? A. 4925 North Lawn, Kansas City, North.

'Q. Okay. Anyone else on the jury panel or your family?'

Defendant's counsel objected to the question pertaining to claim adjusters and moved for a discharge of the panel on the ground that the inquiry as to whether a panel member of one in his family was a claim adjuster for any insurance company was improper in that it unnecessarily had prejudicially injected insurance into the case. Defendants here argue that while the questions as to the panel members' connections with the named insurance company was proper, to later revive the word 'insurance' by a question as to whether they or members of their families adjusted claims for any insurance company, was prejudicial and that the failure of the court to discharge the panel constituted reversible error.

It is, of course, proper on voir dire to ascertain what connection, if any, prospective jurors have with an insurance company which is interested in the defense of the case on trial, provided pertinent inquiries are properly made for the purpose of determining the qualifications of prospective jurors. Dooley v. Dooley, Mo.App., 290 S.W.2d 856, 857. And it is within the province of the trial judge to reasonably circumscribe the voir dire inquiry in that respect by limiting the number of questions and imposing other curbs on the nature of the examination. While it was undoubtedly proper on voir dire to determine whether any member of the panel was employed as a claims investigator or adjuster, it perhaps would have been desirable to have inquired generally rather than to have limited the question to insurance company adjusters. It seems apparent however, that the adjuster question as asked could not have injected the matter of insurance any more surely into the case than had been done by the three prior questions which defendants concede were proper and to which no objection was made. In any event, the record heretofore set forth makes it clear that the trial court did not abuse its discretion in refusing to discharge the panel. Haley v. Edwards, Mo., 276 S.W.2d 153, 160[4-6].

Defendants contend that the trial court erred in giving instruction 1. That instruction hypothesized the manner in which the accident occurred and directed a verdict for the plaintiff if the jury found that defendant Fetters negligently drove his automobile into the rear of the vehicle in which plaintiff's wife was riding and that as a direct result plaintiff's wife was injured.

Defendants argue that the instruction was erroneous because it failed to hypothesize an essential element of plaintiff's right to recover, viz., that plaintiff sustained loss and damage resulting from his wife's injuries. Defendants point out the general rule that an instruction which purports to cover the whole case and authorizes a verdict is erroneous if it fails to hypothesize an essential fact, and that such error is not cured by another instruction which correctly requires the finding of the omitted essential fact. McDaniel v. McDaniel, Mo., 305 S.W.2d 461, 467[6, 7]. Defendants, however, overlook the fact that the well-established general rule noted above does not require reversal where, as here, a verdict--directing instruction in a husband's action to recover damages resulting from injury to his wife required the jury to find that plaintiff's wife was injured and where, as here, plaintiff's damage instruction authorized the jury to assess damages only in the event that if found that plaintiff had incurred expenses and had sustained loss on account of his wife's injuries, and where, as here, there was no evidence adduced controverting plaintiff's evidence as to his damage resulting from his wife's injury. In Hausherr v. Kansas City Public Service Co., Mo.App., 268 S.W.2d 433, 438, a case involving the precise question being presently considered, the court correctly said: 'This identical question was fully discussed by the Supreme Court in Pandjiris v. Oliver Cadillac Co., 339 Mo. 726, 98 S.W.2d 978, and State ex rel. Fourcade v. Shain, 342 Mo. 1190, 119 S.W.2d 788. The effect of the holding in those two cases is that a submission such as is contained in Instruction No. 1 is technically erroneous. Nevertheless, it may not be reversible error if there is no evidence refuting plaintiff's evidence relative to his damage from the loss of services and consortium due to his wife's injuries and if other instructions properly define his damages.'

In the present case there was no evidence refuting plaintiff's evidence relative to his damage due to his wife's injuries and instruction 2 properly defined his damages. Thus, plaintiff's erroneous instruction 1 does not require a reversal of the judgment.

Defendants contend that ...