Ivey v. Hanson
| Decision Date | 14 August 1931 |
| Citation | 41 S.W.2d 840,226 Mo.App. 38 |
| Parties | H. L. IVEY, RESPONDENT, v. HARRY E. HANSON AND EMERY S. MATTHEWS, PARTNERS, APPELLANTS |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Dallas County.--Hon. C. H. Skinker Judge.
Reversed and remanded.
Barbour & McDavid and F. W. Barrett for appellants.
(1) No matter how broad the petition may be, only the specific acts of negligence should be submitted, and to submit a general assignment in such case is error. Croak v. Croak, 33 S.W.2d 998; Hearon v. Himmelberger-Harrison Lumber Co., 224 S.W. 67; McNamee v. Mo. P. Ry. Co., 135 Mo. 440; McCarthy v. Rood Hotel Company, 144 Mo 397. (2) It is error to instruct the jury on an assignment of negligence, alleging negligence for failure to give a signal of warning when the plaintiff saw the movement of the truck and when signal of warning would in no way give the plaintiff any further information than he already had. Rubick v. Sandler, 219 S.W. 401; Wren v. Suburban Motor Transfer, 241 S.W. 464; Lumb v. Farney, 190 S.W. 988; McNamee v. Mo. P. Ry. Co., 135 Mo. 440; Sleigleder v. Lonsdale et al., 253 S.W. 487; Peterson v. United Rys. Co., 192 S.W. 938; De Wolf v. Baer & Fuller Dry Goods Co., 240 S.W. 1094. (3) The right to examine the panel with reference to their interest in an indemnity insurance company is permitted where preceding these questions the opposing counsel had been asked whether he represented an insurance company that was interested in the defense of the case and the counsel had answered affirmatively. Kinney v. Street Ry. Co., 261 Mo. 97; Meyer v. Mfg. Co., 67 Mo.App. 389; Yates v. House Wrecking Co., 185 S.W. 549.
Sizer, Gardner & Lockmiller for appellants.
(1) It was not error for plaintiff's counsel to inquire of the jury whether or not they were financially interested in the insurance company which made the defense in this case. Such was a proper subject of inquiry. Steinkeny v. Chamberlin Co., 294 S.W. 762; Wendel v. City Ice Co., 22 S.W.2d 215, 219; Maurizi v. Western Coal & Mining Co., 11 S.W.2d 268; Smith v. Scudiro, 204 S.W. 565; Dubacs v. Hotel Statler, 295 S.W. 826; Wagner v. Golsinite Construction Co., 220 S.W. 890, 897; Willis v. Quarry Co., 218 Mo.App. 698, 709; Kinney v. Metropolitan Street Ry. Co., 261 Mo. l. c. 114.
--Action for damages for personal injuries received by plaintiff in a collision between a truck driven by a servant of defendants and an automobile driven by plaintiff. Trial by jury; finding and judgment for plaintiff. Defendants appealed.
The assignments of error are that plaintiff's Instructions Nos. 1, 2, and 4, were erroneous and that the court erred in permitting counsel for plaintiff to ask the jurors on their voir dire examination as to their interest in the Union Automobile Indemnity Association and whether or not they were acquainted with T. K. Faulkner, an insurance agent of Springfield, Missouri.
We shall notice the last assignment of error first. The appellant contends that when the questions were asked of the jurors, the attorneys for plaintiff were not informed that defendants carried indemnity insurance and hence the questions were not asked in good faith. Appellants' abstract of record shows that after this voir dire examination, the following occurred outside the hearing of the jury. By MR. GARDNER: "I would like for the record to show that outside the presence of the jury and in the presence of the court, plaintiff's counsel inquired of Senator McDavid, counsel for defendants, whether or not the defendants were protected by insurance in this case and whether or not he represented an insurance company and that Senator McDavid advised the court and plaintiff's counsel that he did represent in this case the Union Indemnity Automobile Association" By MR. McDAVID: "That is right."
The facts just stated would authorize the inquiry as to the insurance company but would not authorize it as to Mr. Faulkner. Whether what was said occurred before or after the questions were asked the jurors, we do not regard as very material. The objection to the question did not separate Mr. Faulkner from the insurance company and hence the appellant is not in position to take advantage of the error as to him. There is one reason why appellants could not now profit by error in the voir dire examination of jurors and that is that the point is not mentioned in the motion for new trial. That assignment of error must be ruled against appellants.
The other assignment of error relates to Instructions 1, 2, and 4 given to the jury on behalf of plaintiff. No. 1 referred the jury to the other instructions for a definition of what would constitute negligence in this case. That in itself was not erroneous. If the other instructions had correctly told the jury what facts they would have to find in order to convict defendants by their servant of negligence, then No. 1 which referred to these instructions for the definition of negligence would not have been erroneous, but since the other instructions referred to in No. 1 were, as we think, erroneous, that made No. 1 erroneous also.
We think Instruction No. 2 was erroneous. As a basis for our consideration of this instruction we refer back to the petition which charges the following specific acts of negligence, to-wit:
(a) That the driver of the truck "negligently started and ran said truck backward into the automobile in which plaintiff was driving when said driver knew, or by the exercise of ordinary care could have known, that plaintiff was approaching and passing along and near the rear end of said truck and in such position that such a movement of said truck backward would result in a collision thereof with said car."
(b) That the driver of the truck...
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