Hatton v. Sidman
| Decision Date | 02 March 1943 |
| Docket Number | No. 26257.,26257. |
| Parties | HATTON v. SIDMAN et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of City of St. Louis; David J. Murphy, Judge.
"Not to be reported in State Reports."
Action by Richard D. Hatton against Edward Sidman and Halo Mae Sidman, individuals, doing business as Sidman & Son Ambulance Service, and Bert Smith for injuries sustained in a collision between defendant Smith's automobile and defendants Sidmans' ambulance. From a judgment for plaintiff against defendants Sidman and in favor of defendant Smith, defendants Sidman appeal.
Affirmed.
Anderson, Gilbert, Wolfort, Allen & Bierman and G. H. Suelthaus, all of St. Louis, for appellants.
Everett Hullverson and Erwin C. Fischer, both of St. Louis, for respondent.
This suit was begun by respondent as plaintiff, against Edward Sidman and Halo Mae Sidman, individuals doing business as Sidman and Son Ambulance Service, and Bert Smith, as defendants. A trial before the court and a jury resulted in a verdict and judgment for seventy-five hundred dollars in favor of plaintiff and against defendants Sidman, and in favor of defendant Bert Smith. A joint motion for a new trial filed by defendants Edward Sidman and Halo Mae Sidman having been overruled by the court, they duly appealed.
The petition of plaintiff alleged that on or about July 30, 1941, he was a passenger in an automobile being operated by defendant Bert Smith eastwardly on Lawton Boulevard when said automobile collided with and was struck by an automobile ambulance owned and operated by defendants Sidman, through their agent and servant, then and there not in emergency service, northwardly along Channing Avenue, both open public streets in the City of St. Louis, Missouri, whereby plaintiff was injured as a direct result of the negligence of defendants.
There were five assignments of negligence in the petition, but plaintiff submitted the case to the jury on two only. They were:
4. Negligence of defendants under the humanitarian rule by failure to stop their automobile ambulance.
5. That Lawton Boulevard was a boulevard and major street stop, and defendants Sidman, their agent and chauffeur, failed to come to a complete stop before entering it, in violation of Ordinance 41386 of the City of St. Louis, Sections 2513 and 2514 thereof, although their ambulance was not in use at said time as an ambulance or emergency vehicle.
Defendant Bert Smith filed an answer containing a general denial, as did defendants Sidman.
Defendants Sidman complain against the action of the trial court in refusing to discharge the jury on voir dire examination of jurors.
The record shows that Mr. Hullverson, counsel for plaintiff, out of the hearing of the jury, asked Mr. Anderson, of counsel for defendants Sidman, if the General Casualty Insurance Company was interested in the outcome of the case. Mr. Anderson answered, "very slightly." Mr. Hullverson stated he intended to ask the jurors one general question as to any one interested in that company. He then asked Mr. White, counsel for defendant Bert Smith, if he represented an insurance company, to which Mr. White answered, "No, I represent the defendant Bert Smith." Whereupon, in the presence of the jury, the following occurred:
At this point Mr. Anderson, out of the hearing of the jurors, moved the court to discharge the jury and declare a mistrial on the ground that Mr. Hullverson, instead of asking one general question, had asked at least four or five detailed questions and unduly brought the insurance feature into the case in connection with defendants Sidman. The Court overruled Mr. Anderson's motion, after which the following occurred:
At this point, out of the hearing of the jurors, the following occurred:
The court overruled Mr. Anderson's motion for a mistrial.
Counsel for defendants Sidman earnestly insist that the conduct of counsel for plaintiff was particularly reprehensible and a mistrial should have been declared; that the attorney asking the questions was one who had considerable experience in the trial of cases in the courts; that under his questioning there could be no doubt in the minds of the jurors that some one of the defendants in the case might not have to pay any judgment rendered against him because such defendant had an insurance company which would pay it for him; that since the jury then knew that Mr. Anderson and Mr. Suelthaus both represented Mr. Sidman, and that Mr. Suelthaus was Mr. Sidman's personal attorney, the person who had the insurance and would not have to pay any judgment against him was Mr. Sidman.
Plaintiff's counsel contends that he was entitled to qualify the jurors as to their relation, if any, with insurance companies interested in the result of the trial, and that defendants' counsel raised every possible technical objection because of his dissatisfaction with the panel of jurors which looked like it was a plaintiff's jury.
There is no doubt that the law is well settled in this state that where counsel for a plaintiff intentionally attempts to instill into the jurors' minds the idea that the defendant is not really interested in the outcome of the case because someone else will have to bear the loss regardless of the outcome, such conduct is ground for reversal of a judgment in favor of a plaintiff. Rytersky v. O'Brine, 335 Mo. 22, 70 S.W.2d 538; Bright v. Sammons, Mo.App., 214 S.W. 425; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463. However, it is also well settled law that a plaintiff is entitled to interrogate jurors as to their relations, if any, with insurance companies which may be interested in the result of the trial. We cannot say that the questions asked in the first episode were not legitimate and necessary to test the jurors' relationship, if any, with the insurance company which was conceded to be interested in the case. Schuler v. St. Louis Can Co., 322 Mo. 765, 18 S.W.2d 42; Smith v. Star Cab Co., 323 Mo. 441, 19 S.W.2d 467; Dillinder v. Weeks, Mo.App., 50 S.W.2d 152; Ulmer v. Farnham, Mo. App., 28 S.W.2d, 113; Wack v. Schoenberg Mfg. Co., 331 Mo. 197, 53 S.W.2d 28; Maurizi v. Western Coal & Mining Co., 321 Mo. 378, 11 S.W.2d 268.
As to the second episode, it appears that Mr. Suelthaus had entered his appearance in the case only a short while before the voir dire examination was begun. Plaintiff's counsel was, therefore, justified in asking the jurors questions concerning their knowledge of him as a basis for possible challenge for cause, or for peremptory challenges in making his selection of jurors to try the case. The fact that Mr. Suelthaus was referred to as Mr. Sidman's personal attorney is not, as we view it, sufficient to justify us in holding that the jurors would conclude that an insurance company would pay any judgment rendered against Sidman, and that the jurors could not give him a fair trial under the law and the evidence. In the absence of anything to the contrary, it is presumed that jurors are sensible honorable men and that they perform their duties in accordance with their oaths.
The trial judge who saw and took part in everything that occurred did not believe that the questions of plaintiff's counsel were of such a character as to justify the discharge of the jury, and we are of the opinion that he did not abuse the discretion vested in him by refusing to sustain the motion for a mistrial. See cases last cited, supra.
Defendants Sidman contend that the court erred in refusing to permit them to amend their answer so as to plead contributory negligence on the part of plaintiff. The request to amend was made after plaintiff had concluded his case and all the evidence on the part of said defendants had been adduced. Up to that point the case had been tried on plaintiff's amended petition and the answers of all defendants, which were merely general denials. It is argued that the evidence showed that plaintiff was guilty of contributory negligence as a matter of law, but that even if that view should not be sustained, plaintiff's conduct was such that defendants Sidman were entitled to plead that he was...
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