Kunz v. Munzlinger

• Decision Date: 10 September 1951
• Docket Number: No. 42047,No. 1,42047,1
• Citation: 242 S.W.2d 536
• Parties: KUNZ v. MUNZLINGER
• Court: Missouri Supreme Court

Page 536

242 S.W.2d 536

KUNZ v. MUNZLINGER.

No. 42047.

Supreme Court of Missouri, Division No. 1.

Sept. 10, 1951.

Rehearing Denied Oct. 8, 1951.

George F. Heege, Clayton, Edmund C. Albrecht, Jr., St. Louis, for appellant.

Orville Richardson, John H. Haley, Jr., and Thomas R. McGinnis, all of St. Louis, for respondent.

LOZIER, Commissioner.

Respondent Kunz sued appellant Munzlinger for $15,000 for the wrongful death of his wife. Munzlinger counterclaimed. Kunz had a verdict for $10,000 on his petition and against Munzlinger on the counterclaim. Munzlinger appealed. He assigns error in admission of evidence, in multiplicity of instructions, and in Instruction No. 6.

Determination of these issues requires only a brief statement of the facts. The action arose out of a collision between Kunz's and Munzlinger's cars at the intersection of Ballas and Dougherty Ferry Roads in St. Louis County, on May 20, 1949. Kunz was driving west on Dougherty Ferry, accompanied by his wife and three children. Munzlinger was driving north on Ballas, accompanied by his wife and daughter and Mr. and Mrs. Reed. About 5 feet west of the Ballas centerline, the right front side of Munzlinger's car struck the left front side of Kunz's car. Mrs. Kunz was fatally injured. Other facts are hereinafter mentioned.

Kunz's petition, filed on August 5, 1949, pleaded primary and humanitarian negligence. Munzlinger filed a general denial on October 4, 1949. The case was set for trial on February 6, 1950. On January 31, 1950, Munzlinger filed an amended answer and counterclaim. In his answer, after denying generally, he pleaded contributory negligence. In his counterclaim, he pleaded primary negligence, and asked $15,000 for damages to his car, his own hospital and medical expenses and those of his wife and daughter and loss of the services of the latter two.

Munzlinger's first assignment is that Kunz's counsel was permitted to ask two lay witnesses 'legal questions that call for legal answers.' In his counterclaim Munzlinger set out, and both he and his wife testified to, the personal injuries sustained by his wife and daughter, and the resulting medical costs. Mrs. Munzlinger also testified that she had a claim against Kunz in which her husband's counsel also represented her. Upon cross-examination, she was asked whether she believed that her own claim was included in Munzlinger's counterclaim and if she expected to recover upon her claim 'in this particular suit.' She replied, 'Yes, I suppose so. I don't know.'

The trial court correctly ruled: 'It touches her interest in this suit to ask her if she expects an allowance in this suit. The plaintiff's attorney is * * * asking her if she expected to recover her damages in this suit. Whether it could be or not is of no concern. It is what her interest is.' The interest of a witness, party or otherwise, may be shown as affecting his credibility. Sec. 491.010, Mo. RS 1949, Sec. 1887, Mo. RSA. 'The interest of a witness with respect to the issue on trial is never irrelevant'. Arnold v. Alton R. Co., 348 Mo. 516, 154 S.W.2d 58, 62. 'Considerable latitude is permissible on cross-examination in probing a witness as to his interest or bias, but the extent to which such examination may go rests largely in the discretion of the court.' Holden v. Berberich, 351 Mo. 995, 174 S.W.2d 791, 793, 149 A.L.R. 929.

Mrs. Munzlinger was asked if she believed her own claim was being tried. As the trial court observed, whether Mrs. Munzlinger's claim was actually being tried was not material. But her admission that she 'supposed' it was in issue was of significance. The jury was entitled to weight her testimony in the light of that admission. See Riner v. Rick, Mo.App., 57 S.W.2d 724, and Golden v. Onerem, Mo.App., 123 S.W.2d 617, involving cross-examination of passenger witnesses having claims arising out of the same collision. See also Joice v. Missouri-Kansas-Texas R. Co., 354 Mo. 439, 189 S.W.2d 568, 161 A.L.R. 383; and Breitschaft v. Wyatt, Mo.App., 167 S.W.2d 931.

Munzlinger's counterclaim included specific amounts for his wife's and daughter's hospital and medical bills to trial time, such bills thereafter and past and future loss of their services. After he had testified as to the 6 or 7 year old child's injuries and medical treatment, Kunz's counsel was permitted to ask him what he meant by 'having lost the services of his daughter * * * as stated in the paper your lawyer prepared and filed,' meaning the counterclaim. The reply was, 'That is something I can't answer.'

Of course, Munzlinger's understanding of 'loss of services' was of no consequence, was not an issue and was wholly immaterial. However, like the trial judge, we cannot see wherein the error was prejudicial or in any way could have inflamed the jury against him. He replied that he didn't know what 'loss of services' meant, and there were no more questions as to his understanding of the phrase. That his claim for loss of services was first made in his counterclaim, filed six days before trial day, was in evidence. He later submitted other evidence as to his daughter's injuries and medical expenses, including the testimony of her doctors. The child was present in court, sat on her mother's lap while Mrs. Munzlinger was testifying, and was referred to by the doctors. Kunz offered no evidence on the issue. Munzlinger's instruction on damages under his counterclaim included 'whatever loss of services the defendant has sustained because of the injuries of his said daughter' as well as her past and future medical bills. And one of Kunz's instructions excluded from recovery under the counterclaim the child's personal claim.

'It is generally true that 'the admission in evidence of facts entirely immaterial to the issues and without probative force cannot constitute prejudicial or reversible error,' especially when the facts evidenced are of such character that they do not have a natural tendency to inflame or arouse hostile passions and their prejudicial effect is not otherwise made to appear.' Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646, 648, 157 A.L.R. 598. In the cases cited by Munzlinger, the cross-examination inquiries either called for inadmissible testimony upon material issues or related to highly prejudicial immaterial matters. That is not the situation here.

Munzlinger next complains of the multiplicity of instructions. 'Assuming,' he says, 'every instruction in the case correctly stated the law, it is submitted that their length and number alone brought about error by misleading and confusing the jury.'

We cannot see how the jury could have been misled by the number of instructions. There were fourteen instructions. Two (credibility of witnesses and nine man verdict) were the court's. Of Kunz's seven, one defined Munzlinger's degree of care; one submitted primary negligence, and another, humanitarian negligence; one placed upon Munzlinger the burden of proof as to contributory negligence and stated the effect of such negligence upon Kunz's primary and humanitarian cases, respectively; and one was his measure of damages. Kunz's No. 6, hereinafter discussed, arose out of Munzlinger's sole cause instruction. Kunz's No. 11 confined recovery upon the counterclaim to Munzlinger's own claims, excluding those of his wife and daughter.

Five instructions were Munzlinger's. No. 2 defined Kunz's degree of care. No. 5 submitted Kunz's negligence as sole cause. No. 7 submitted Kunz's primary negligence. No. 8 defined Kunz's burden of proof. No. 10 was the measure of damages under the counterclaim.

It is obvious that there was no multiplicity of instructions. Each was confined to a single matter. Most were concise and short. Others (three on each side), of necessity, were long. None were verbose, repetitious or argumentative. Considering the issues made by the pleadings and the evidence, the instructions fairly submitted each party's case. See Mavrakos v. Mavrakos Candy Co., 359 Mo. 649, 223 S.W.2d 383. This assignment is ruled against Munzlinger.

Munzlinger next challenges Kunz's Instruction No. 6 as being erroneous in two particulars. He asserts that the instruction improperly shifted the burden of proof on his counterclaim and that it submitted general negligence.

As No. 6 referred to Munzlinger's No. 5 and Kunz's No. 4, we mention these first. No. 5 was the converse of No. 4. See Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743. It authorized a verdict in favor of Munzlinger and against Kunz if either Kunz's dangerous speed or failure to keep a lookout was the sole cause of the collision without any negligence upon Munzlinger's part. No. 4, Kunz's humanitarian submission, was based upon either failure to stop or to warn. It authorized a verdict upon both the petition and the counterclaim, upon a finding that negligence 'in either or both of the two respects submitted in this instruction directly caused or contributed to cause said collision,' even though Kunz was contributorily negligent.

Instruction No. 6 was: 'You are instructed that Instruction No. 5 just read to you is what is known as a 'sole cause' instruction. By that is meant that the negligence, if any, therein submitted by the defendant against the plaintiff would have to be, if found by you, the sole and exclusive cause of the collision before defendant would be entitled to a verdict thereunder. On the other hand, if you find that the defendant was negligent, if so, in any respect submitted in Instruction No. 4 and in any manner whatsoever contributing in any degree, no matter how small, to cause the collision, then you are instructed that your verdict must be in favor of the plaintiff and against the defendant not only on plaintiff's own cause of action for the death of his wife, but also on the defendant's counterclaim.'

Munzlinger first contends that the jury might read No. 6 as requiring him to prove 'he was not negligent, not only in any respect submitted in Instru...