Kaley v. Huntley
| Decision Date | 07 October 1935 |
| Docket Number | No. 18380.,18380. |
| Citation | 88 S.W.2d 200 |
| Court | Missouri Court of Appeals |
| Parties | KALEY v. HUNTLEY et al. |
Appeal from Circuit Court, Jackson County; Emory H. Wright, Judge.
"Not to be published in State Reports."
Action by Helene J. Kaley against D. J. Huntley and another. Judgment for plaintiff, and defendants appeal.
Affirmed.
See, also, 333 Mo. 771, 63 S.W.(2d) 21.
Cowgill & Popham and John F. Cook, all of Kansas City, for appellants.
James Luther Roberts and Paul C. Sprinkle, both of Kansas City, for respondent.
REYNOLDS, Commissioner.
While riding as a guest in an automobile owned by the defendant D. J. Huntley and driven by his daughter, the defendant Cynthia Huntley, the plaintiff, Helene J. Kaley, in May, 1927, received painful personal injuries through the alleged negligence of the driver of the car in the operation thereof. The plaintiff has since married, and her name is now Helene Ford. She lives in Philadelphia; but, at the time of her injury, she resided and was working in Kansas City, Mo., and was living here at the time that this suit was filed in the circuit court of Jackson county.
There is evidence tending to show the following:
At the time of plaintiff's injury, she was sitting in the rear seat of the car at the left side of the defendant D. J. Huntley, who occupied the right side of such seat. The plaintiff was seated immediately behind the defendant Cynthia Huntley, the driver of the car, who occupied the left side of the front seat. Miss Parsons, another guest in the car, was seated upon the front seat at the right of the driver.
The car in which plaintiff was riding was being operated north on Wornall road in Kansas City, Mo.; and, at a point near Eighty-Ninth street, it left the highway and struck a tree standing at the side thereof about fifteen feet from the paved portion. The impact was sufficient to tear the windshield out of its frame and throw it to the left rear of the car where plaintiff was seated. The windshield or parts thereof struck her on the top of her head, making a long cut leading from the right eyebrow in a diagonal line to the center of plaintiff's forehead and back across the top of her head to the crown or back.
Wornall road was a smooth, paved highway, some eighteen or twenty feet in width. There were no obstructions of any kind upon it and no traffic at or near the point where the car left the highway. The day was a bright and sunshiny one. The pavement was smooth and dry. The car was being driven at a rate of speed estimated at from twenty to twenty-five miles per hour. The car was in satisfactory working condition; the brakes thereon working in perfect order, and nothing found to be wrong with the steering gear or other mechanism of the car. At the time that the car left the highway, the driver had turned her head to speak to her father in the rear seat.
The laceration upon plaintiff's head and forehead bled profusely; and, soon after the accident, she was taken to the offices of a physician who dressed the wound, cleaned it with antiseptic, and stitched back the scalp. At about 9 o'clock that evening, plaintiff called Dr. Poorman to see her, who, after making an examination of her head, made arrangements for her to go to St. Joseph's Hospital, where she went about two days later. She remained at the hospital for some three or four weeks, where she was attended by Dr. Poorman.
Upon a trial had, the cause being submitted to the jury, the jury returned a verdict for the plaintiff in the sum of $2,500; and from a judgment thereon in said sum of $2,500, the defendants, after unsuccessful motions for new trial and in arrest of judgment, prosecute this appeal.
1. The assignment of errors made by defendants relates chiefly to the action of the trial court in the overruling of their objections to questions asked by plaintiff's counsel of jurors upon voir dire examination, relating to their connection with the Standard Mutual Casualty Company of Springfield, Ill., and to the questions asked plaintiff when a witness and defendant Cynthia Huntley when a witness upon her cross-examination, and to the answers made thereto by such witnesses, bringing out the fact that the defendants had liability insurance; in the overruling of their motions to discharge the jury on account of the wrongful conduct of the plaintiff and the witness Cynthia Huntley in answering such questions and of plaintiff's counsel in asking them; in the exclusion by the court of certain evidence offered by defendants of written statements made by plaintiff; in the admission of evidence offered by plaintiff relating to the medical bill of plaintiff's attending physician, Dr. Poorman; and in the giving of instruction 6 for the plaintiff. They also assign error upon the verdict of the jury, in that it was excessive in amount. Such assignments appear brought forward under the five points made by defendants in their brief and argument, the first of which points is as follows: "The trial court erred in overruling appellant's objections and motions to discharge the jury made repeatedly throughout the trial when plaintiff and plaintiff's counsel wrongfully and prejudicially, through questions and answers to the jury panel on voir dire examination and to the plaintiff during her testimony and to the defendant Cynthia Huntley during her cross-examination, wrongfully and viciously and prejudicially injected and kept before the jury the thought and idea that the defendants in this case were fully protected by liability insurance and that the defendants were not interested in the outcome of the trial."
The record shows that, in response to questions by plaintiff's counsel, outside the hearing of the jury, seeking to lay the foundation for the voir dire examination of the jury, the defendants' attorney stated that a policy of liability insurance had been issued to defendant D. J. Huntley by the Standard Mutual Casualty Company of Springfield, Ill., effective only in the territory of Chicago, Ill., unless notice of change of location to some other territory be first given; that there was a grave question whether Huntley had any insurance covering the accident in question in Kansas City, inasmuch as he had failed to give any notice of any change from Chicago territory to Kansas City territory; and that such company had no office in Kansas City, Mo., and did not write any insurance in such state. Objections to the questions asked, to which such answers were made, were made by the defendants' counsel at the time that the same were asked and were overruled; and the court thereupon ruled that plaintiff's counsel might inquire by whom the defense in the case was being made and by whom the counsel for defendants was employed. The defendants' counsel stated that he was employed by a lawyer named Rupert Morris, who, he thought it fair to assume, was acting in behalf of the company; that he was told by Mr. Morris that, when they got through with the case, he would be paid; and that the defense was being made under the policy contract. Thereupon and thereafter, upon the impaneling of the jury, the counsel for the plaintiff asked the jurors if any of them were employed by the Standard Mutual Casualty Company of Springfield, Ill., or if any member of the family of any were so employed. He also made inquiry as to whether any member of the family of any of them was a policyholder of that company or had been in the past a policyholder therein or an adjuster therefor or had been employed as an agent thereof, or if any of them had any connections, directly or indirectly, with such company.
We find no error in this regard.
2. It further appears from the record that afterward, when plaintiff was called as a witness upon the trial and was being questioned by defendants' counsel upon cross-examination, she was asked if she had signed a written statement regarding the facts in the case. Upon objection thereto by plaintiff's counsel, to the effect that no written statement was being presented to the witness, which objection was overruled, the defendants' counsel again inquired as follows: "I asked you if you signed a statement—tell whether you did or not." To which she answered: "I signed a statement for Mr. Huntley's insurance man, if that is the one you are talking about." Defendants' counsel thereupon objected to the answer and asked that it be excluded for the reason that it was improper. Such objection the court overruled and remarked at the time that the witness had said she had signed a certain paper but that the court did not know whether that was it or not. The witness interrupted and volunteered the statement that she did not know what paper counsel was referring to. Defendants' counsel thereupon exhibited the written statement referred to by him to the witness, who, in answer to his question, stated that she had signed it; and such statement was thereupon offered by defendants' counsel in evidence and, with the exception of the fourth paragraph therein, was by the court admitted in evidence.
It does not appear that defendants have any just ground for complaint of plaintiff's action in making answer to the question or of the action of the court in refusing to strike out and exclude such answer. The answer came naturally from the witness in response to the question asked her by defendants' counsel at the time that the question was first asked and the answer complained of made. It was a mere general question and was not directed to any specific written statement. Under such circumstances, the witness quite naturally explained that she had signed a statement which she identified as being one for the defendants' insurance man. The defendants cannot now complain. The very matter of which they make complaint was brought about by the manner of the examination of the witness and the character of the question asked her by their own counsel. Zeller v. Wolff-Wilson Drug...
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