Handshy v. Nolte Petroleum Co., 52107

• Decision Date: 13 November 1967
• Docket Number: No. 52107,No. 2,52107,2
• Citation: 421 S.W.2d 198
• Parties: Orville HANDSHY, Appellant, v. NOLTE PETROLEUM COMPANY, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 198

421 S.W.2d 198

Orville HANDSHY, Appellant, v. NOLTE PETROLEUM COMPANY, a Corporation, Respondent.

No. 52107.

Supreme Court of Missouri, Division No. 2.

Nov. 13, 1967.

Motion for Rehearing or for Transfer to Court En Banc Denied

Dec. 11, 1967.

William P. Byrne, Whalen, O'Connor & Byrne, St. Louis, for appellant.

Heege & Heege, George F. Heege, III, Clayton, for respondent.

HOLMAN, Judge.

Action for damages in which plaintiff sought to recover $45,000 for personal injuries. A trial resulted in a verdict for defendant. Plaintiff has appealed.

In a previous trial plaintiff recovered a judgment. Upon appeal that judgment was reversed and the case was remanded for a new trial because of error in an instruction. Handshy v. Nolte Petroleum Co., Mo.App., 387 S.W.2d 161.

On December 5, 1959, plaintiff was engaged in the moving business and maintained an office in a small room in the back part of his residence. On that morning he was in the office shortly after 8 o'clock with an employee, Elvard Izeman. Plaintiff's wife was not at home and his four children were asleep upstairs. At about that time defendant's truck arrived to make a delivery of fuel oil. The oil tank was located in the basement with an intake pipe close to the outside door of plaintiff's office. Defendant's regular employee, Eugene Wood, placed the nozzle in the pipe and started the oil flow. He left the nozzle in charge of Clifford Black while he went to the truck and 'revved up' the motor. Black was a new employee and had not received any instruction as to how to shut off the hose. The oil started overflowing and Black could not stop it. Before the hose was shut off about five gallons of oil overflowed onto plaintiff's patio, and there was evidence that some ran under the door and onto the floor of the office.

Plaintiff who, according to Wood, 'appeared mad,' came out and either he or Wood swept the oil into a drain. At about that time Wood suggested that there might be some spillage in the basement. Plaintiff had an automatic gas water heater in the basement and was apparently afraid that oil may have spilled and might be ignited by the gas water heater. He immediately went through his office and kitchen to the doorway leading to the basement. As he started down the steps his feet 'went out from under him' and he fell down the remaining steps to the basement floor and was injured. A short time later he examined his shoes and found that the soles were 'full of oil.'

It was shown on cross-examination of plaintiff that he had sustained injuries in three accidents occurring subsequent to the one in question.

Mr. Wood testified that the oil being delivered would not ignite until heated to a temperature of 154 F.; that the mat outside the door was only one-third saturated with oil; that he followed plaintiff into the house and wiped his feet on the dry portion of the mat; that he did not see plaintiff wipe his feet.

Plaintiff's case was submitted upon a required finding of negligence in that 'the defendant failed to properly instruct its employee how to shut off the hose.' Defendant contended that plaintiff was guilty of contributory negligence and the submission thereof required a finding that plaintiff either 'walked through the spilled oil, or failed to wipe his shoes off on the door mat * * *.'

The first point briefed by plaintiff is that the court erred in overruling his objection to a question asked the jury panel by defendant's counsel on voir dire examination. The question was as follows: 'Mr. Heege: If the law and the evidence shows you Mr. Handshy is not entitled to recover, are there any of you who couldn't give a verdict for the defendant?' Plaintiff's attorney made an objection which was overruled and then the following statement was made: 'Mr. Heege: I take it by your silence you could do this.'

Plaintiff contends that the ruling was erroneous because it permitted interrogation by defendant's attorney which sought to commit the jurors to a verdict prior to hearing the evidence. It is undoubtedly an established rule in this state that an attorney on voir dire examination may not cause the veniremen to pledge or speculate as to their action in certain contingencies which may later occur during the trial.

In State v. Pinkston, 336 Mo. 614, 79 S.W.2d 1046, 1048, we held it was reversible error to permit the prosecuting attorney to ask the following question: 'If you were accepted as a juror in this case, if you believe and found from the evidence beyond a reasonable doubt that the defendant was guilty, if you believe from that evidence that the death penalty was proper penalty to follow a finding of guilty, would you vote for it?' It was held to be reversible error in State v. Katz Drug Co., Mo.Sup., 352 S.W.2d 678, 684, to permit the following question on voir dire examination: 'Now, if I prove to your satisfaction and beyond a reasonable doubt that February 22, 1959, was a Sunday, and that the Katz Drug Company at their 8th and Washington store sold goods, wares and merchandise which were not medicines or drugs and not items of immediate necessity, and if the Court instructs you that that is a violation of the law, will you convict?' In ruling the contention the court stated that this 'was an improper attempt to commit jurors before they had heard evidence, instructions of the court or argument of counsel.' In Smith v. Nickels, Mo.App., 390 S.W.2d 578, the court affirmed the action of the trial court in granting a new trial because of error in permitting counsel to ask the following question: 'Mr. Cleary: * * * would any of you have any hesitancy in holding my client blameless, finding in his favor, if you felt that he was not responsible for this accident?'

In our consideration of the question presented we should bear in mind the following rules: "The extent to which parties should be allowed to go in examining jurors as to their qualifications cannot well be governed by any fixed rules. The examination is conducted under the supervision and direction of the trial court, and the nature and extent of the examination and what questions may or may not be answered must necessarily be left largely to the sound discretion of the court, the exercise of which will not be interfered with unless clearly abused." State v. Hoffman, 344 Mo. 94, 125 S.W.2d 55, 57.

We think the question in the case at bar may readily be distinguished from the question in the Pinkston, Katz, and Smith cases. This for the reason that the question in those cases definitely sought to commit...