Hannah v. Butts

• Citation: 51 S.W.2d 4,330 Mo. 876
• Decision Date: 13 June 1932
• Docket Number: 30299
• Parties: H. K. Hannah v. E. Aaron Butts, Appellant
• Court: Missouri Supreme Court

51 S.W.2d 4

330 Mo. 876

H. K. Hannah v. E. Aaron Butts, Appellant

No. 30299

Supreme Court of Missouri

June 13, 1932

Rehearing Overruled May 27, 1932. Motion to Modify and to Transfer to Banc Overruled June 13, 1932.

Appeal from Clay Circuit Court; Hon. Ralph Hughes, Judge Opinion filed at October Term, 1931, April 2, 1932; Motion for rehearing filed; motion overruled at April Term, May 27 1932; motion to modify and transfer to court en banc overruled June 13, 1932.

Reversed and remanded.

James S. Simrall and Lyons & Ristine for appellant.

(1) The court erred in refusing to discharge the jury panel in voir dire examination and later the trial panel during the opening statement and trial, when counsel for plaintiff insisted on making repeated references to the fact that the defendant carried a liability insurance policy and insisted upon making the trial one between the plaintiff and an insurance company rather than one between the plaintiff and the defendant. Gore v. Brockman, 138 Mo.App. 231; Trent v. Printing Co., 141 Mo.App. 437; Burrows v. Likes, 180 Mo.App. 455; Snyder v. Wagner Electric Mfg. Co., 284 Mo. 313; Jablonowski v. Modern Cap Mfg. Co., 312 Mo. 201, 279 S.W. 89; Simmer v. May Dept. Stores, 282 S.W. 117; Edwards v. Smith, 286 S.W. 430; Warner v. Oriel Glass Co., 319 Mo. 1219; Bobos v. Krey Packing Co., 323 Mo. 224; Jones v. Mo. Freight Transit Corp., 40 S.W.2d 470; Potashnick v. Pearline, 43 S.W.2d 790. (2) The court erred in refusing to sustain the defendant's motion for judgment on the pleadings. Hannah v. Butts, 222 Mo.App. 1098, 14 S.W.2d 31; Sec. 965, R. S. 1929.

Burrus & Burrus and Mosman, Rogers & Buzard for respondent.

(1) The court did not err in refusing to discharge the jury panel in voir dire examination. (a) This purported assignment is not reviewable. Because it does not conform to the ground laid in the motion for new trial. Sterrett v. Met. St. Ry. Co., 225 Mo. 99, 123 S.W. 877. Because it was not presented to the court in the motion for new trial. Howlett v. Randol (Mo. App.), 39 S.W.2d 463; Gary v. Averill, 12 S.W.2d 747; Adams v. Kendrick, 11 S.W.2d 16; Grott v. Johnson, 2 S.W.2d 785; Huhn v. Ruprecht, 2 S.W.2d 760. (b) Because respondent's question to the panel, "Now, gentlemen, it will appear in evidence that an insurance company." Is an incomplete sentence, incomplete in thought, conveys no meaning, and is therefore trivial. Bobos v. Krey Packing Co., 19 S.W.2d 633. (c) Assuming, as appellant assumes, that it means "an insurance company is involved," the statement is within the pleadings and issues of the case, as shown by appellant's answer (R. 5-7) and the reply thereto, by appellant's motion for judgment on the pleadings, by appellant's opening statement, by the issues developed under the same pleadings in the first appeal of this case, 14 S.W.2d 31, and by Instruction 2. Hannah v. Butts, 14 S.W.2d 31; Dees v. Skrainka Const. Co., 8 S.W.2d 877; Thompson v. Ry. Co., 183 S.W. 636; Steinman v. Brownfield, 18 S.W.2d 530. (d) Was therefore made in good faith -- good faith in such cases being the test of reversible error. Wendel v. City Ice Co., 22 S.W.2d 218; Bobos v. Krey Packing Co., 19 S.W.2d 630; Jablonowski v. Modern Cap Mfg. Co., 312 Mo. 173, 279 S.W. 89; Warner v. Oriel Glass Co., 319 Mo. 1196, 8 S.W.2d 846; Jones v. Mo. Freight Transit Corp., 40 S.W.2d 465; Snyder v. Wagner Electric Mfg. Co., 284 Mo. 285; Boten v. Sheffield Ice Co., 180 Mo.App. 96, 166 S.W. 883; Edwards v. Smith, 286 S.W. 428; Duncan v. City Ice Co., 25 S.W.2d 536; Cazzell v. Schoffield, 8 S.W.2d 580; Maurizi v. Coal & Mining Co., 11 S.W.2d 274; Steinman v. Brownfield, 18 S.W.2d 529. (e) Is not prejudicial since, among other reasons, appellant does not contend the verdict is excessive or for the wrong party. Bennett v. O'Maley Tractor Co. (Mo. App.), 238 S.W. 147; Edwards v. Smith (Mo. App.), 286 S.W. 431; Jones v. Mo. Freight Transit Corp., 40 S.W.2d 471; Boten v. Sheffield Ice Co. (Mo. App.), 166 S.W. 883; Bishop v. Musick Plating Works, 3 S.W.2d 261; Potashnick v. Pearline, 43 S.W.2d 793. (2) The court did not err in refusing to discharge the jury because of the opening statement made to the jury by counsel for respondent. This purported assignment is not reviewable because it was not presented to the trial court in the motion for new trial. R. S. 1929, sec. 1061; Steinman v. Brownfield, 18 S.W.2d 529; Wulze v. Aquardo, 6 S.W.2d 1017; Papke v. Stadelman (Mo. App.), 300 S.W. 845; Bobos v. Krey Packing Co., 19 S.W.2d 634; Boten v. Sheffield Ice Co., 166 S.W. 883; Garvey v. Ladd (Mo. App.), 266 S.W. 727; Edwards v. Smith, 286 S.W. 428; Dees v. Skrainka Const. Co., 8 S.W.2d 873; Thompson v. Ry. Co., 183 S.W. 636; Hannah v. Butts, 14 S.W.2d 31. (3) The court did not err in refusing to sustain appellant's motion for judgment on the pleadings. (a) This purported assignment is abandoned, since it is not otherwise presented. Davis v. Fleming (Mo. App.), 253 S.W. 798; Johnson v. Underwood, 24 S.W.2d 133, 324 Mo. 578; St. Louis v. Smith, 30 S.W.2d 733. (b) Because the motion for judgment on the pleadings when presented to the court was violative of Sections 812 and 813 of the Revised Statutes 1929, in that it was not called up on previous notice to the respondent, was made orally, and assigned no reason in support of said motion. R. S. 1929, Secs. 812, 813; Brown v. Adams Transfer Co., 31 S.W.2d 120. (c) Because the facts stated in respondent's reply, which said motion admits, state facts in avoidance of the alleged defense set up in appellant's answer. Hannah v. Butts, 14 S.W.2d 31. (d) Because the alleged matters of defense set up in appellant's answer were denied by respondent's reply. Sullivan v. Bank of Harrisonville (Mo.), 293 S.W. 129, 131.

Ragland, J. Atwood, J., concurs; Frank, J., and Gantt, P. J., concur in the result.

OPINION

RAGLAND

This is an action for personal injuries and property damage resulting from a collision on a highway between a farm wagon which plaintiff owned and in which he was riding and an automobile driven by defendant. A trial of the cause in the circuit court resulted in a judgment in favor of plaintiff and against defendant for $ 9,000. The cause comes here on defendant's appeal. As the only questions raised relate to the pleadings and plaintiff's alleged improper references to an insurance company at the beginning of the trial and thereafter during its continuance, only so much of the record as is necessary to an understanding of those questions will be set out or referred to. The curious will find a very full and complete statement of the evidentiary facts in the opinion of the Kansas City Court of Appeals given on a former appeal. [Hannah v. Butts, 222 Mo.App. 1098, 14 S.W.2d 31.]

The petition contained no unusual feature, and it is in no wise in question. It set forth a cause of action bottomed on negligence, alleged that defendant was negligent in doing and omitting to do certain specific things and that such negligence proximately caused the damages for which it prayed a recovery.

The answer, among other things, pleaded in bar a full release of the cause of action as follows:

"Defendant for further answer states that on account of the accident and injuries alleged in plaintiff's petition, the plaintiff presented a claim for damages against the defendant, and that thereafter, on the 4th day of December, 1926, the said claim was compromised, settled and fully satisfied by the plaintiff with the defendant, E. Aaron Butts, whereby in consideration of the payment to the plaintiff of the sum of one hundred sixty-five ($ 165) dollars, the plaintiff released and forever discharged the defendant, E. Aaron Butts and all others from all claims, demands, on account of said accident; that as evidence of said compromise and settlement the plaintiff executed a release on said 4th day of December, 1926, a copy of which release is hereto attached and marked 'Exhibit A' and made a part hereof; that said release is a full and complete bar to the prosecution of this action."

The paper, "Exhibit A," referred to in the pleading and attached thereto, purported to have been signed by both H. K. Hannah and E. L. Hannah, his name appearing first.

The reply was as follows:

"Now comes the plaintiff and replying to the answer of the defendant herein, denies each and every allegation in said answer made or contained, and the plaintiff specifically denies that he executed the pretended release or settlement alleged in the said answer.

"Plaintiff states that the facts regarding the alleged payment of the money referred to in defendant's answer are, that on the second day after plaintiff received the injuries as alleged in the petition, and at a time while plaintiff was totally paralyzed and unconscious, one J. Leo Morgan, a claim agent or adjuster for an indemnity insurance company, the exact name of which is unknown to the plaintiff but is well known to the defendant, came to plaintiff's home and tendered to plaintiff's wife, E. L. Hannah, one hundred sixty-five ($ 165) dollars, the sum mentioned in defendant's answer as a part payment of the account due to plaintiff for his said injuries, from the defendant and then falsely and fraudulently represented and stated to plaintiff's wife that he desired to have her sign a receipt for the said sum and falsely and fraudulently represented to her that his company would pay any additional sum that would be necessary to compensate plaintiff for his said injuries, and falsely stated to her that said payment did not constitute a full settlement of plaintiff's claim against the defendant.

"Plaintiff states that at all of the times mentioned the said J. Leo Morgan was acting as the agent of the defendant and was so acting within the due course of his...