Henry v. Tinsley
| Decision Date | 02 March 1949 |
| Parties | John B. Henry, Appellant, v. Walter Tinsley, Respondent |
| Court | Missouri Court of Appeals |
Rehearing Denied March 26, 1949.
Appeal from Circuit Court, Division No. 2, Jasper County; Hon Woodson Oldham, Judge.
Affirmed.
Burden & Shortridge for appellant.
The trial court erred in sustaining the defendant's motion for a new trial for the Court's failure to discharge the jury after the plaintiff, testifying on direct examination mentioned that defendant had referred to his, the defendant's insurance company. Plaintiff's statement was not prejudicial error because it was inadvertently made, plaintiff's counsel were acting in good faith, the jury was promptly admonished to disregard such mention of insurance and the mentioning of insurance was incidental to and part of the defendant's admission of liability. Vesper v. Ashton 233 Mo.App. 204, 118 S.W. 2d 84; Jones v. Missouri Freight Transit Corporation, (Mo. App.) 40 S.W. 465; Garvey v. Ladd, (Mo. App.) 266 S.W. 727; Steinman v. Brownfield (Mo. App.) 18 S.W. 2d 528; Fortner v. Kelly, 227 Mo.App. 933, 60 S.W. 2d 642; Nixon v. Hill 227 Mo.App. 312, 52 S.W. 2d 208. The trial court erred in sustaining defendant's motion for a new trial upon the ground that the damages were excessive and plaintiff failed to enter remittitur of $ 300.00. The amount recovered was the difference between the reasonable market value of plaintiff's automobile immediately before and immediately after the collision described in the evidence and this amount is the true measure of damages in this case. Said amount was less than prayed for by the petition and was authorized by the instructions of the Court and sustained by the evidence. Barnes v. Elliott, (Mo. App.) 251 S.W. 488; Brunk v. Hamilton-Brown Shoe Company 334 Mo. 517, 66 S.W. 2d 903. The authority of a trial court to order a remittitur on account of an excessive verdict is limited to cases where the jury finds for more than the amount authorized by the pleadings, the facts and the instructions. City of Kennett v. Katz Construction Company, (Mo. Sup.) 202 S.W. 558; Warden v. Southards, (Mo. App.) 187 S.W. 2d 510. The trial court in ordering a remittitur can exercise no discretion as to the law of a case. It is only when the Court's ruling is directed to the facts that the exercise of discretion is permissible. City of Kenneth v. Katz Construction Company, supra; Loftus v. Metro Street Railway Company 220 Mo. 470, 119 S.W. 942. The trial court erred in sustaining defendant's motion for a new trial because the errors, if any, did not materially affect the merits of this cause. Mo. R. S. A., 1939, 847.140 (a).
Roy Coyne and Max Patten for respondent.
The trial court erred in not discharging the jury on the Voir Dire examination because no proper foundation had been laid for the question. Olian v. Olian 59 S.W. 2d 673; Maurizi v. Western Coal & Mining Co., 11 S.W. 2d 268. The trial court erred in not discharging the jury when counsel for plaintiff asked a member of the jury whether or not he was prejudiced for or against auto liability companies as counsel could not be acting in good faith in asking such a question and it could only have been given to convey to the jury that auto liability might be involved in the case, especially when no foundation had been laid. Olian v. Olian 59 S.W. 2d 673; Maurizi v. Western Coal & Mining Co., 11 S.W. 2d 268. The trial court erred in not discharging the jury when plaintiff testified that defendant said "His insurance company" when said statement was not a part of an admission of liability as plaintiff testified in regard to the conversation in question (Tr. 20): Q. Did he make any statements about whose fault it was? A. Well, no, sir, he didn't. . . . Olian v. Olian 59 S.W. 2d 673; Whitman v. Carver 88 S.W. 2d 885. The court erred in refusing to sustain the motion to dismiss made by defendant at the close of plaintiff's case because plaintiff cannot recover because of his contributory negligence. Tierney v. Riggs 141 Wash. 437, 252 P. 163; Weaver v. Stephens et al., 78 S.W. 2d 903. The court erred in refusing to sustain the motion to dismiss made by defendant at the close of all the evidence because the plaintiff was guilty of violation of the city ordinance and Section 8386, Missouri Revised Statutes, 1939, making him guilty of negligence per se, therefore contributorily negligent. Taylor v. Silver King Oil & Gas Co. 203 S.W. 2d 147; Cotton v. Ship-By-Truck Co., 85 S.W. 2d 80; 45 C. H. 720 Section 103. That the court erred in permitting the plaintiff to testify over the objection of the defendant what the cost of future repairs would be when there was no showing that the said cost and repairs were reasonable, necessary and the result of the alleged accident, and which permitted the jury to speculate on the measure of damages. Blashfield, Encyclopedia of Auto Law, Section 3416. The court did not err in ordering a remittitur as that is within the discretion of the trial court when plaintiff's evidence shows that repairs were only $ 549.85, and that was all the damage which was done. Huston v. Quincy, O. & K. C. R. Co., 151 Mo.App. 335, 131 S.W. 714; Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W. 2d 157; Stokes v. Wabash R. Co., 197 S.W. 2d 304; Southern v. Keene, 203 S.W. 2d 917.
This is an appeal from the action of the trial court is sustaining a motion for new trial, filed by the defendant.
The action was filed in the Circuit Court of Jasper County, Missouri, June 5th, 1947. Plaintiff claimed $ 1250.00 damages against defendant for injury to his automobile alleged to have been caused by the negligence of the defendant in running into and damaging plaintiff's car while parked on a public street in Joplin, Missouri. The cause was tried before a jury in Division No. 2, of the Circuit Court, on the 22nd day of October, 1947, resulting in a judgment for plaintiff for $ 1,000.00. A motion for a new trial was filed by the defendant on the 27th day of October, 1947, which motion was sustained by the court on December 11th, 1947. From the action of the court in sustaining the motion for new trial, plaintiff appeals to this court.
Two grounds of error are relied upon by plaintiff for reversal: First, plaintiff complains that the trial court erred in sustaining defendant's motion for new trial because of error committed by injecting liability insurance protection into the case; and second, by finding that the verdict was excessive.
The evidence in this case shows that the plaintiff was the owner of a 1941 Buick Sedan automobile, which was parked in front of his home on West Fourth Street in the City of Joplin, Missouri; that on the 30th day of May, 1947, defendant, driving his 1946 Oldsmobile, ran into and against plaintiff's car, causing the damage complained of. It is admitted that plaintiff's car was parked, at the time of the collision, in violation of a city ordinance.
During the voir dire examination of the jurors the following questions and answers were given:
In the trial of the case the plaintiff was testifying and gave the following answers to questions asked by his attorney:
The record does not disclose that there was any liability insurance in this case.
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...by the case law. Whitman v. Carver, supra; Olian v. Olian, supra; Hanna v. Butts, 330 Mo. 876, 51 S.W.2d 9 (1930); Henry v. Tinsley, 240 Mo.App. 163, 218 S.W.2d 771 (1949). Cf., Walton v. United States Steel Co., 362 S.W.2d 617, 627 (Mo.Sup.1962) (dictum); Taylor v. Kansas City Southern Ry.......