Malone v. Small

• Decision Date: 11 January 1927
• Docket Number: No. 19292.,19292.
• Citation: 291 S.W. 163
• Parties: MALONE v. SMALL et al.
• Court: Missouri Court of Appeals

291 S.W. 163

MALONE v. SMALL et al.

No. 19292.

St. Louis Court of Appeals. Missouri.

January 11, 1927.

Rehearing Denied February 21, 1927.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Allie Malone against Chesly T. Small and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Joseph C. McAtee, of Clayton, for appellant Small.

Watts & Gentry, of St. Louis, for appellants Clymer.

Chas. Claflin Allen and Raymond S. Davis, both of St. Louis, for respondent.

NIPPER, J.

This is an action for damages, brought by Allie Malone, who was riding in an automobile driven by Lottie L. Clymer, when a collision occurred between the automobile in which she was riding, and a Ford coupe which was being driven by defendant Small. The accident occurred at the intersection of Enright and Goodfellow avenues, in the city of St. Louis. Goodfellow avenue runs north and south, and Enright avenue east and west. Mrs. Clymer was driving north on Goodfellow avenue, at a rate of speed estimated at 20 to 25 miles an hour, and Small was driving westwardly on Enright avenue at something like the same rate of speed. Plaintiff and a Mrs. Weinrich were riding in the rear seat of the automobile being driven by Mrs. Clymer. When the car in which plaintiff was riding reached the intersection of these two streets, plaintiff says she looked east and saw the car being driven by Small' coming. Mrs. Clymer increased the speed of her car in an attempt to beat the other car across, and, before she had completely crossed the intersection, the rear end of the Clymer car was struck by the front end of the Ford coupe, and plain" tiff received serious injuries to her person, and brought action for damages against Mrs. Clymer, her husband, Harry G. Clymer, the owner of the car which Mrs. Clymer was driving, and defendant Small.

It appears that Mr. and Mrs. Clymer, the plaintiff, and Mrs. Weinrich, as well as others, were members of a fraternal order, and decided to give a food sale for the purpose of raising funds for their order. A store building on the north side of Delmar avenue was rented, and some of the members loaned tables, dishes, and other things needed in connection with the sale. Others made donations of money and foodstuffs, and the ladies who were officers of the organization went to the store and arranged the articles, and conducted the sale until about 8 o'clock in the evening. Some of the gentlemen members of the organization were present at different times during the day. Harry G. Clymer, one of the defendants, arrived at the store where the sale was being conducted about 5 o'clock p. m., and remained there for a time.

The defendant Harry G. Clymer was the owner of two automobiles—one he used customarily in his business, and the other, a sedan, he kept and maintained, but permitted his wife to use it at times for her own pleasure. On the day of the food sale, defendant Harry G. Clymer was using the machine he usually used in his business, and Mrs. Clymer was using the sedan. About the time they were getting ready to leave the place, it appears from the evidence, when considered most favorable to plaintiff, that defendant Harry G. Clymer, when discussing the question of getting the personal property away from the store building, and the people to their respective homes, said to his wife: "You can" take Mrs. Malone and Mrs. Weinrich home." He then stated that he had to go out to keep a dinner engagement; that, if his wife needed him later, she would know where to get him. Mrs. Clymer told her husband that she would be at Mrs. Weinrich's, where he could come after his dinner engagement. The evidence discloses that defendant Harry G. Clymer was a member of the order or organization which was giving the food sale, and was interested with his wife and others in the success of the undertaking.

There were various assignments of negligence in the petition, which it is unnecessary to discuss in detail at this time.

Plaintiff recovered judgment for $5,000, and all the defendants appeal.

At the beginning of the trial in the court below, plaintiff's counsel called counsel for defendants to the bench, and, out of the hearing of the jurors, the following took place:

"Mr. Davis: Mr. Gentry, I request you to state to the court, out of the hearing of the jury at this time, whether or not the defendants Mr. and Mrs. Clymer are covered by any liability insurance company in this ease, and if so to give me the name of the company.

"Mr. Gentry: The defendants Mr. and Mrs. Clymer had at the time of the accident referred to in this case a liability insurance policy with the Automobile Underwriters of America, which is therefore defending this case and interested in it.

"Mr. Davis: I desire to put the following questions to the jurors: Are you, or any member of your family, financially interested in the Automobile Underwriters of America? Are you, or any member of your family, employed or connected financially with this insurance company?

"Mr. McAtee: The defendant Small makes the statement that that question should not apply to him, because he is not connected with them, or any other insurance company, and doesn't carry any insurance, and didn't carry any insurance at this time, and makes that statement to the court, and asks leave to make that statement to the jury if that question is asked.

"The Court: You object?

"Mr. Gentry: I object because it would be unfair to the other defendants if such a statement was made by Mr. McAtee.

"The Court: I sustain that objection.

"Mr. McAtee: Note my exception."

Counsel for plaintiff then proceeded to examine the jurors individually as to their connection with the Automobile Underwriters of America. After examining one or two members of the panel, counsel for defendants Harry G. Clymer and Lottie L. Clymer objected to plaintiff's counsel examining the jurors individually as to their connection with the insurance company in question, and insisted that the question should be addressed to the jury collectively. Counsel for defendant Small made no objection during the 'examination other than what we have heretofore noted.

There are various objections to the court's action in giving and refusing certain instructions and other assignments of error, which we will deal with later.

It is insisted by counsel for defendants Clymer and Clymer that the court erred in permitting counsel for plaintiff to examine the members of the jury panel individually as to their connection and relationship with an insurance company. It is urged by counsel for defendant Small that the court erred in not permitting him to state to the jury that he was not covered by any insurance; and that the questions did not apply to him.

That counsel for plaintiff generally have the right to ask jurors on their voir dire examination as to their relationship and connection with an insurance company under such a state of facts as...