Hollenbach v. McCord

• Decision Date: 05 December 1910
• Parties: HOLLENBACH v. McCORD.
• Court: Missouri Court of Appeals

132 S.W. 1189

152 Mo. App. 248

HOLLENBACH v. McCORD.

Kansas City Court of Appeals. Missouri.

December 5, 1910.

Rehearing Denied January 2, 1911.

1. NEW TRIAL (§ 70) — AUTOMOBILE ACCIDENT —EVIDENCE.

In an action for injuries alleged to have been sustained by plaintiff by being thrown from his wagon by his horses becoming frightened at defendant's automobile, plaintiff's evidence as to the manner in which the accident occurred held not so improbable and contrary to physical possibility as to require vacation of a verdict based thereon.

2. JURY (§ 149) — DISCHARGE — GROUNDS— NEWSPAPER PUBLICATION.

In an action for injuries in the operation of defendant's automobile, one venireman when asked his occupation stated that he was the agent of an insurance company. Plaintiff's attorney then asked that the venireman be excused from the panel, as the insurance company was defending the case. To this defendant objected, whereupon the juror was examined and excused, and on the same day a newspaper published an account of the proceedings, whereupon defendant moved to discharge the jury because of such publication. Held, that such publication did not constitute ground for discharging the jury or the granting of a new trial, in the absence of proof that the jury as sworn were unduly influenced by the publication to defendant's prejudice.

Appeal from Circuit Court, Buchanan County; L. J. Eastin, Judge.

Action by Andrew Hollenbach against James H. McCord. Judgment for plaintiff, and defendant appeals. Affirmed.

R. L. Spencer, Vinton Pike, and O. C. Mosman, for appellant. Charles F. Strop, James W. Boyd, and Jule A. Sanders, for respondent.

BROADDUS, P. J.

This is a suit for damages sustained by the plaintiff as the result of the alleged negligence of defendant's chauffeur in charge of and operating his automobile.

The injury was received on the 18th day of January, 1908. On that day plaintiff, according to his account of the occurrence, was in his wagon driving his team of horses along a public road in Buchanan county, known as the Amazonia road leading to St. Joseph. When near the residence of a Mr. Woods he met an automobile which alarmed his horses and caused them to run away with the wagon, which overturned, and threw plaintiff to the ground, whereby he was severely injured. There was no dispute but what plaintiff was found in the road near Mr. Woods' house partially unconscious with several broken bones and other injuries.

Defendant denied that it was his automobile that alarmed plaintiff's horses and caused them to run away. In the vehicle, besides the chauffeur named McFall, were Mrs. McCord, defendant's wife, and Mrs. Garner and Miss Burke. They were all called, except Mrs. McCord, as witnesses at the trial. McFall testified that he did not meet plaintiff driving his team on the public road on the day in question, and the testimony of Mrs. Garner and Miss Burke was to the same effect.

The plaintiff's testimony was to the effect that he saw the automobile approaching when it was from 100 to 150 yards away, at a speed of about 35 miles per hour; that his team showed some alarm; that he turned them as far as he could to the right side of the road; that the automobile came on without turning to the right and passed so close that he was not certain whether or not it struck his wagon; that when the automobile was within 15 or 20 feet, the horses suddenly jumped to the left and got far enough over on that side of the road to escape being struck. Plaintiff's evidence also tends to show that if he was struck as he claims he was, it was by defendant's automobile, as it was the only one that passed over the road on that day.

There had been a previous trial of the case in which the verdict was for the plaintiff, but it was set aside and a new trial granted, because the court was of the opinion that it was not supported by the evidence. At another time, after trial had begun, the order for hearing was set aside on account of the sickness of a juror. The trial lasted more than one day, and during the time the court adjourned the proceedings from on Saturday until the following Monday, on which day the defendant filed a motion to discharge the jury because of a certain publication in a newspaper printed in St. Joseph since the court had adjourned. The article gave a history of the case, including the former trial, and the reason the verdict was set aside, and it also contained the following statement: "Yesterday a question arose as to whether Colonel McCord himself is defending the case, or the Accident Insurance Company in which he carried a policy. The challenging of the jury was in progress. One venireman, Roy Brill, when asked as to his occupation, said he was an agent of the Travelers' Insurance Company. C. F. Strop, representing Hollenbach, asked that Brill be excused from the panel, as the Travelers' Insurance Company, and not McCord, he said, was defending the case. Attorneys for defense objected. The court then ordered that evidence be heard as to whether...