Kelsey v. Kelsey

• Decision Date: 17 November 1959
• Docket Number: No. 30322,30322
• Citation: 329 S.W.2d 272
• Parties: Annabelle Jennewien KELSEY (Plaintiff) Respondent, v. Joseph KELSEY and William A. Ruzicka (Defendants), Joseph Kelsey (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 272

329 S.W.2d 272

Annabelle Jennewien KELSEY (Plaintiff) Respondent, v. Joseph KELSEY and William A. Ruzicka (Defendants), Joseph Kelsey (Defendant), Appellant.

No. 30322.

St. Louis Court of Appeals, Missouri.

Nov. 17, 1959.

Byron A. Roche, Doris J. Banta, St. Louis, for appellant.

Philip A. Foley, Geo. E. Murray, Clayton, for respondent.

WOLFE, Presiding Judge.

This is an action for damages arising out of personal injuries sustained by reason of an automobile collision between the automobiles of Joseph Kelsey and William A. Ruzicka. The plaintiff was a passenger in Kelsey's automobile. She dismissed as to Ruzicka, and the jury returned a verdict for her and against Joseph Kelsey in the sum of $7,000. From the judgment on the verdict defendant Kelsey prosecutes this appeal.

The collision giving rise to this action occurred on November 22, 1947. Ruzicka and a young woman riding with him were returning from a trip to Columbia, Illinois. At some time after midnight he was driving northwardly on Kirkwood Road approaching a point where it is intersected by Madison Avenue, in the City of Kirkwood, Missouri. His speed had been about 30 miles per hour, but he slowed to about 20 or 25 miles per hour as he approached a railroad crossing a short distance south of the Madison Avenue intersection. At or within the intersection of Madison Avenue and Kirkwood Road, Ruzicka's car was struck in the rear by the car driven by Kelsey.

The plaintiff, who was engaged to be married to defendant Kelsey, was riding in the front seat with him. They were later married and were husband and wife at the time of trial. In the rear seat were her sister and a young man. All of them were returning from a dance in Valley Park. It was raining and the windows of the car were clouded or fogged. They were traveling northwardly on Kirkwood Road at a speed of about forty miles per hour. Near the Madison Avenue intersection a bus was about to pull out from the curb. Defendant Kelsey drove his car around the left of the bus and collided with the rear end of Ruzicka's car, which was ahead of the bus. The collision turned Ruzicka's car over on its side, and Kelsey's car went to the left and came to rest facing south on Kirkwood Road. This substantially summarizes all of the evidence offered by the plaintiff in relation to the cause of the collision. The defendant did not testify either as a witness in the plaintiff's cause or in his own defense.

The plaintiff suffered a laceration of the right side of her forehead and right eyelid, a laceration of the knee, and multiple bruises. She has a permanent scar from the cut on the forehead and on the knee.

The appellant contends that the argument of plaintiff's counsel was prejudicially erroneous in several respects. First it was asserted that the court erroneously permitted counsel to comment upon and draw inferences from the failure of the defendant to testify. It is asserted that the case was defended by appellant's insurance company, and this was freely admitted in the course of the trial. In view of this appellant argues that the defendant was available as a witness to the plaintiff, and that no unfavorable inference can be drawn from his failure to testify in his own behalf. We are cited to Johnson v. St. Louis Public Service Co., 363 Mo. 380, 251 S.W.2d 70, 74, and other cases of like import holding that 'no unfavorable inference is to be drawn or comment made by counsel on account of the non-production of witnesses equally available'. See also Litt v. Allen, Mo.App., 313 S.W.2d 183. This rule is without application to a situation where a party to the action fails to testify in his own behalf when he has knowledge of the facts and circumstances bearing upon the issues. In such cases the failure of the party to testify raises a presumption that his testimony would have been unfavorable to his cause. Block v. Rackers, Mo.Sup. 256 S.W.2d 760; Irle v. Irle, Mo.App., 284 S.W.2d 44.

The presumption thus raised may therefore be properly mentioned in the argument. It is true that the named adversaries here were husband and wife, and because of this it is urged that the husband was more accessible as a witness to the plaintiff than he was to the defending insurance company. In Hamilton v. Fulkerson, Mo.Spp., 285 S.W.2d 642, the Supreme Court held that a wife could sue her husband for damages arising out of an antenuptial tort. They are therefore parties to an adversary action regardless of their marital status, and the comment of counsel inferring that the defendant did not take the stand because his testimony would have been damaging to his cause was permissible. Another remark complained of arose in the following manner. Ruzicka had testified that his claim for damages arising out of the collision and the claim of the young woman who had been with him had been paid by the insurance company. Counsel for plaintiff stated in argument:

'Now, you heard Mr. Ruzicka tell you they paid him, the insurance company, for his damages, his automobile. Do you think they would have paid him if he was not at fault? They paid the girl who was riding in his automobile. Do you think they would have paid her if he was not at fault? No, you know they wouldn't. We are trying this lawsuit because I will not take a bag of peanut shells for my lawsuit.'

Counsel for the defendant objected and requested the court to instruct the jury to disregard the statement. The court they stated: 'Counsel, please confine your remarks as far as the case is concerned.' If this was an admonition its meaning is...