Lindsey v. Rogers

• Decision Date: 17 May 1949
• Docket Number: 27524
• Parties: LINDSEY v. ROGERS
• Court: Missouri Court of Appeals

220 S.W.2d 937

LINDSEY
v.
ROGERS

No. 27524

Court of Appeals of Missouri, St. Louis

May 17, 1949

'Not to be reported in State Reports.'

Roy Hamlin, of Hannibal, Hilbert & Veatch, of Monticello, for appellant.

J. Andy Zenge, Jr., of Canton, Gaylord Wilkins, of Shelbyville, Fred C. Bollow, of Shelbina, for respondent.

OPINION

WOLFE; PER CURIAM [220 S.W.2d 938]

This is an action for damages arising from personal injuries and property loss sustained by reason of an automobile collision. A counterclaim was filed and the trial resulted in a verdict for the plaintiff on his petition and also on defendant's counterclaim. From the judgment entered the defendant has appealed.

The facts of the case reveal that prior to the collision a truck driven by defendant and an automobile driven by the plaintiff had proceeded in a westwardly direction on State Highway B toward the town of Newark in Knox County. The highway there intersects with a street, running northwardly and southwardly, called Fresh Street. The defendant's truck having arrived at the intersection turned slightly to the right and then made a 'U' turn. Plaintiff traveling at the time toward Fresh Street collided with the truck at the center of the intersection. Defendant and his wife and daughter, who were with him, testified that they looked to the rear before the 'U' turn was made and that no car was in sight. Plaintiff stated that as he was traveling toward the intersection there was no car ahead of him until the truck making the turn came in front of his automobile and in such close proximity to it that, although applying his brakes, he was unable to stop. The resulting collision damaged both cars and inflicted personal injuries upon the drivers.

At the time this case was argued on appeal counsel for the defendant asked leave to file an addition to the transcript. This addition was the transcript of the voir dire examination. The court permitted it to be filed but granted the plaintiff-respondent time to file suggestions in opposition to its consideration as a part of the record. These suggestions were submitted to be ruled upon with the case. The opposition to considering the transcript is bottomed on rule 1.03 of the Supreme Court, which specifies the time in which application for amendment of the record should be made, and the application here was not within the time specified. However, the same rule permits this court on its own motion to order a completed transcript and since the plaintiff relied in his brief upon certain things that transpired on the voir dire examination, it appears to be a portion of the record necessary for the full consideration of the case and for its proper determination. The court might well have ordered, on its own motion, the addition supplied and it should therefore be received and considered as a part of the transcript of the record.

The first point urged by this appeal charges the trial court with error for not having declared a mistrial at the request of the defendant when plaintiff was asked the following questions and gave the following answers:

'Q (By Mr. Wilkins) Did he make statements to you? A Yes, he made a statement.

'Q Tell us what he said. A He said, 'Tom, I am sorry this happened. I have got plenty insurance' -- '

Counsel for the defendant at once objected and requested the court to declare a [220 S.W.2d 939] mistrial because of 'improper matter brought before the jury.' The court ruled that part of the answer was improper and directed the jury to disregard it, after which counsel for plaintiff asked the further question:

'Q Now, Mr. Lindsey, will you tell us what Mr. Rogers said to you, if anything, after he made the statements that you have already testified to, and the Court has stricken; if he said anything after that -- don't repeat what he said first -- but if he said anything afterwards to you, after he said those words to you you just said, if he said anything more, give it; if he didn't -- ? A Well, he said he had liability insurance.'

Defendant's counsel renewed his request for a mistrial and discharge of the jury and the court stated:

'Now ladies and gentlemen of the...