Joyce v. Biring

• Decision Date: 08 December 1931
• Citation: 43 S.W.2d 845,226 Mo.App. 162
• Parties: MRS. D. E. JOYCE, RESPONDENT, v. JOUN BIRING, SR., AND JOHN BIRING, JR., APPELLANTS. *
• Court: Missouri Court of Appeals

43 S.W.2d 845

226 Mo.App. 162

MRS. D. E. JOYCE, RESPONDENT, v. JOUN BIRING, SR., AND JOHN BIRING, JR., APPELLANTS. *

Court of Appeals of Missouri, St. Louis

December 8, 1931

Appeal from the Circuit Court of the City of St. Louis.--Hon. Frank Landwehr, Judge.

AFFIRMED.

Judgment affirmed.

Leahy Saunders & Walther for appellants.

(1) There was insufficient evidence of the agency of John Biring Jr., for John Biring, Sr., to take the case to the jury as to John Biring, Sr. Greenleaf on Evidence (16 Ed.), sec. 169, p 291; Robert v. Melugen, 9 Mo. 170; Binewicz v. Haglin (Minn.), 115 N.W. 271; 2 Wigmore, Evidence, pp. 1222-1224. (2) The testimony of plaintiff and her husband of the alleged statement of John Biring, Sr., that he had sent his son to deliver a pair of shoes, unsupported by any other evidence of agency, was insufficient to raise an issue of agency for the jury. (3) The repeated attempt of counsel on voir dire examination, during the taking of testimony, and again during his argument, to inject insurance into the case showed a lack of good faith, and the refusal of the court to discharge the jury and declare a mistrial was reversible error. Crapson v. United Chautauqua Co., 27 S.W.2d 722; Hill v. Jackson, 218 Mo.App. 210, 272 S.W. l. c. 106; Trent v. Lechtman Printing Co., 141 Mo.App. l. c. 449-452. (4) Defendants were entitled to an instruction from the court directing the jury to disregard any reference to insurance in considering the case, and the court erred in refusing defendants' requests for such instruction. Chambers v. Kennedy, 274 S.W. 726; Trent v. Lechtman Printing Co., 141 Mo.App. l. c. 451; Miller v. Harrison Constr. Co., 298 S.W. l. c. 261. (5) The admission of the testimony of plaintiff that defendant John Biring, Sr., told plaintiff that "he and Mrs. Biring had sent the boy to deliver shoes to a customer," etc., was error, in that it was voluntary and not responsive to the question asked, and was highly prejudicial. (6) The court erred in admitting testimony of John Joyce that defendant John Biring, Sr., told the witness that the insurance company was fighting the case, for the reason that said statement was not responsive to the question asked, was unnecessary, and was prejudicial. The court should have discharged the jury and declared a mistrial. Nolen v. Halpin-Dwyer Construction Co., 29 S.W.2d 219, 220; Melvin v. Cater, 221 Mo.App. 1212. (7) Counsel's argument to the jury, with reference to insurance, was improper and highly prejudicial, and the court erred in denying defendant's motion for a mistrial. Allen v. Autenrieth, 280 S.W. l. c. 80-81. (8) The court's refusal to instruct the jury to disregard counsel's reference to the insurance company, and his statement that the evidence has got to be taken into consideration, was tantamount to telling the jury that such evidence was proper and must be considered in arriving at their verdict. Foulks v. Lehman, 17 S.W.2d 996. (9) The court erred in giving and reading to the jury instruction No. 1, because the evidence did not make out a case for the jury under the humanitarian or last chance doctrine. Croak v. Croak, 33 S.W.2d l. c. 1001. (10) The court erred in giving and reading to the jury instruction No. 2 requested by the plaintiff, because it constituted a direction to the jury to disregard entirely the negligence of John Joyce.

Mark D. Eagleton and Allen, Moser & Marsalek for respondent.

(1) The court did not err in refusing to discharge the jury because plaintiff's counsel, during the voir dire examination of the jury, interrogated them to learn their connection, if any, with the Insurance Company or its claim agents. It was admitted that the insurance policy covered defendant, John Biring, Sr. Under such circumstances, plaintiff's counsel was within his rights in asking the questions objected to, even if the other defendant was not insured. Malone v. Small, 291 S.W. 163; Smith v. Star Cab Co., 19 S.W.2d 467. (2) The trial court properly refused the peremptory instruction requested by defendant John Biring, Sr. The evidence showed that said defendant told plaintiff that he and Mrs. Biring, in response to the telephone request of a customer, had sent their son, John Biring, Jr., to deliver some shoes the customer had purchased. The evidence further showed that thereafter defendant, John Biring, Sr., when questioned by plaintiff's husband regarding the son's denial of this fact, told plaintiff's husband not to mind the boy's statement; that he, defendant, had been over to see plaintiff; that the Insurance Company was fighting the case, and that was the reason the boy had made the statement referred to. (a) Said admissions constituted ample evidence to take to the jury the question whether John Biring, Jr., on the occasion of the accident, was operating the automobile at the request of and as agent for his father, the defendant, John Biring, Sr. Bank v. Nichols, 202 Mo. 309; Kirkpatrick v. Street Ry. Co., 211 Mo. 68; Bank v. Epstein, 221 Mo. 286; Forrister v. Sullivan, 231 Mo. 345; Kirkwood v. Van Ness, 61 Mo.App. 361; Latham v. Hosch, 207 Mo.App. 381; Pinteardd v. Hosch, 233 S.W. 81; Scott v. McLennan, 242 S.W. 140; Curtis v. Harrison, 253 S.W. 474; Kilcoyne v. Metz, 258 S.W. 4. (b) The credibility of the witnesses, and the weight to be given their testimony, are questions solely for the jury and trial court, and will not be considered on appeal. Bonnell v. Express Co., 45 Mo. 422; Reid v. Ins. Co., 58 Mo. 421; Sutter v. Ry. Co., 188 S.W. 65; Biondi v. Coal & Coke Co., 297 S.W. 171, affirmed, 9 S.W.2d 596; Patchin v. Biggerstaff, 25 Mo.App. 534; Granneman v. Auto Body Co., 296 S.W. 437. (3) The evidence that the defendant was insured was relevant to the issues, and the court did not err in refusing to strike it from the record. The statements made by defendant, John Biring, Sr., as to what his son was doing at the time of the accident, and in explanation of his son's denial that he was using the automobile with the consent of Biring, Sr., were admissible in evidence as a whole. The court properly refused to exclude the references made by Mr. Biring to the Insurance Company, for the reason that said evidence tended in each case to explain the admission, support the probability that it was actually made, and to accentuate it. Wulze v. Aquardo, 6 S.W.2d 1017; Lochmann v. Brown et al., 20 S.W.2d 561; Lanham v. Vesper-Buick Auto Co., 21 S.W.2d 890; Huhn v. Ruprecht, 2 S.W.2d 760; Warner v. Glass Co., 319 Mo. 1196; Bishop v. Musick Plating Works, 3 S.W.2d 256; Plannett v. McFall, 284 S.W. 850; 3 Jones, Evidence (2 Ed.), p. 1957, sec. 1063; Mutual Benefit Life Ins. Co. v. Newton, 22 Wall. (U.S.) 32, 22 L.Ed. 793; Evidence, 22 C. J. 413. The court did not err in overruling the objections made by appellants' counsel and his motion to discharge the jury during the argument. No error was committed by plaintiff's counsel in referring to the matter of defendant's insurance, in view of the fact that the evidence relative thereto was properly in the record. Authorities, Point 2 (1), supra, Point 3, supra; Evans v. Town of Trenton, 112 Mo. 390; Gidionson v. The Union Depot Rys. Co., 129 Mo. 392; Huckshold v. R. R., 90 Mo. 548; Yost v. R. R., 245 Mo. 219. (5) The court did not err in giving plaintiff's instruction No. 1. There was ample evidence to take the case to the jury on the humanitarian theory. Bruns v. United Rys. Co., 251 S.W. 411; Ellis v. Met. St. Ry. Co., 234 Mo. 657; Dauber v. Josephson, 209 Mo.App. 531; Elliott v. Richardson (Mo. App.), 28 S.W.2d 408; Jageles v. Berberich (Mo. App.), 20 S.W.2d 577. (6) The court did not err in gving plaintiff's instruction No. 2. The instruction did not preclude consideration of the negligence, if any, of plaintiff's husband. The legal rule is correctly stated in the instruction. Moon v. St. Louis Transit Co., 237 Mo. 425.

NIPPER, J. Becker, J., concurs; Haid, P. J., not sitting.

OPINION

NIPPER, J.

--This is an action for damages for personal injuries sustained by plaintiff on a Sunday afternoon, on May 9, 1926, as the result of a collision between an automobile driven by John Biring, Jr., and one driven by plaintiff's husband, John Joyce, at the intersection of Lillian avenue and Davison avenue, in the city of St. Louis.

Plaintiff recovered judgment against John Biring and John Biring, Jr., and defendants have appealed.

The petition charged that John Biring, Jr., was operating the automobile at an excessive rate of speed; that he failed to stop or give any signal or warning of approach; that he failed to stop, slacken the speed of, turn or swerve the automobile; that he failed to exercise due care to discover the automobile in which plaintiff was riding, and failed to have the automobile under such control that it could be readily and easily stopped at the first appearance of danger; and negligence under the humanitarian doctrine.

The answer, after a general denial, alleged that at the time of the collision, plaintiff was engaged in a joint mission or enterprise with her husband, who was driving the automobile in which she was riding, and that the injuries were the result of contributory negligence of the husband who was driving at an excessive rate of speed; that he failed to stop; that he failed to turn or swerve the automobile which he was driving; that he failed to give the right of way to the automobile being driven by defendant John Biring, Jr.; that he failed to have his automobile under control so that it could be readily stopped upon the first appearance of danger; and that he failed to keep as near the right-hand curb of Davison Avenue as possible.

The accident occurred, as stated in the petition, at the intersection of Lillian avenue and Davison avenue, in the city of St. Louis. Lillian avenue...