Mavrakos v. Mavrakos Candy Co.

Decision Date12 September 1949
Docket Number41170
Citation223 S.W.2d 383,359 Mo. 649
PartiesMadeline Mavrakos, Respondent, v. Mavrakos Candy Company, a Corporation, and Ladue Contracting Company, a Corporation, Appellants
CourtMissouri Supreme Court

Motion for Rehearing or to Transfer to Banc Overruled October 10 1949.

Appeal from Circuit Court of City of St. Louis; Hon. James E McLaughlin, Judge.

Reversed and remanded (with directions).

SYLLABUS

Plaintiff was injured when a family corporation automobile driven by her husband collided with a truck. Plaintiff sued both the family corporation and the truck company. After a verdict for both defendants the trial court granted a new trial. Where both defendants were insured by the same insurance carrier, disclosure of insurance coverage by one, but not both defendants, was not grounds for a new trial. Nor the fact that 29 instructions were given. There was evidence to support an instruction that the driver's negligence could be imputed to plaintiff. Testimony as to an insurance payment was cured by an instruction. The verdict for defendants should be reinstated.

E. C. Hartman, Thomas J. Guilfoil and Edmund C. Albrecht, Jr., for appellant Mavrakos Candy Company.

(1) Plaintiff's motion for a new trial was not verified. The unverified statements of plaintiff's counsel as to the officers and agents of T. H. Mastin & Company, alleged conduct of such alleged parties, and alleged conduct of the lawyers for T. H. Mastin & Company, are not borne out by evidence and are not substantiated. (2) This defendant committed no error in admitting that its counsel was representing an insurance company after plaintiff's counsel had interrogated the jury on voir dire examination relative to such insurance company. Grindstaff v. J. Goldberg & Sons Structure Steel Co., 328 Mo. 72, 40 S.W.2d 702; Bishop v. Musick Plating Works, 222 Mo.App. 370, 3 S.W.2d 256; Jablonowski v. Modern Cap Mfg. Co., 312 Mo. 173, 279 S.W. 89; Tramill v. Prater, 152 S.W.2d 684; Schuler v. St. Louis Can Co., 322 Mo. 765, 18 S.W.2d 42. (3) The trial court erred in overruling this appellant's motion for a directed verdict at the close of plaintiff's case and at the close of the whole case as plaintiff and her husband, the driver of the Mavrakos Candy Company's automobile, were fellow-servants. Boston v. Kroger Grocery & Baking Co., 320 Mo. 408, 7 S.W.2d 1006; Kemmler v. City of Richmond Heights, 114 S.W.2d 994; Chappee v. Gus V. Brecht Butchers' Supply Co., 30 S.W.2d 35; Thompson v. Kansas City, 153 S.W.2d 127.

Orville Richardson for appellant Ladue Contracting Company.

(1) The trial court in sustaining plaintiff's motion for a new trial on Grounds 11 and 13 overruled all other assignments, including those charging that the verdict was against the weight of the evidence. Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297. (2) Whether error was committed in either one of the grounds assigned involves no factual matter over which the trial judge could exercise discretionary power, and his action is freely reviewable on appeal. Schipper v. Brashear Truck Co., 132 S.W.2d 993; Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121; McDonald v. Heinemann, 141 S.W.2d 177. (3) Even if discretion was involved in the trial court's ruling, which we deny, such discretion may not be abused or arbitrarily exercised and is open to judicial review on appeal. King v. K.C. Life Ins. Co., 350 Mo. 75, 164 S.W.2d 458. (4) As to Ground 11 of the motion: the instructions were not so numerous as to constitute prejudicial error "by their very numbers." Ward v. Mo. Pac. Ry. Co., 311 Mo. 92, 277 S.W. 908; Kidd v. Chicago, R.I. & P. Ry. Co., 310 Mo. 1, 274 S.W. 1079; Siberell v. St. Louis & S.F. Ry. Co., 320 Mo. 916, 9 S.W.2d 912; Block v. U.S. F. & G. Co., 316 Mo. 278, 290 S.W. 429; Laird v. Keithley, 201 S.W. 1138; Henry v. Ill. Cent. R. Co., 282 S.W. 423; Wolfe v. Payne, 294 Mo. 170, 241 S.W. 915; Rowe v. Missouri-Kansas-Texas R. Co., 339 Mo. 1145, 100 S.W.2d 480; Young v. Missouri-Kansas-Texas R. Co., 100 S.W.2d 929. (5) There is an obvious distinction between a refusal at trial to give instructions because of the number offered, and the granting of a new trial because such instructions were given at trial. Hogan v. K.C. Pub. Serv. Co., 322 Mo. 1103, 19 S.W.2d 707; McCarthy v. Sheridan, 336 Mo. 1201, 83 S.W.2d 907; Schipper v. Brashear Truck Co., 132 S.W.2d 993; Schuler v. St. Louis Can Co., 332 Mo. 765, 18 S.W.2d 42; Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254. (6) As to Ground 13 of the motion: there was no error in the manner in which attorneys hired by T. H. Mastin & Co. That portion of Ground 13 of the motion relating to the officers and agents of the insurance company was not supported by affidavit or testimony and was not relied upon or found by the court in its order sustaining the motion for new trial, as disclosed in its memorandum. Such allegations may be wholly ignored. Dougherty v. Whitehead, 31 Mo. 255; Daggs v. Smith, 193 Mo. 494, 91 S.W. 1043; Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721. (7) The same rule applies to plaintiff's allegation that the lawyers for the two defendants conspired to present no defense for the Candy Company. (8) It was wholly proper for Mr. Hartman to disclose and for Mr. Richardson to withhold the insurance coverage carried by T. H. Mastin & Co. with respect to the defendants. State ex rel. Tramill v. Shain, 349 Mo. 82, 161 S.W.2d 974. (9) It would have been a gross breach of ethics for any one lawyer to attempt to represent these two defendants, particularly in view of the fact that the suit was for damages far in excess of insurance coverage. Rules of the Supreme Court, Rule 1.06; In re Buder, 217 S.W.2d 563. (10) It was not error, and certainly not prejudicial error, to show that T. H. Mastin & Co. had paid the property damages of the Ladue Company. The Candy Co. had paid Mrs. Mavrakos' doctor and hospital bills. The interest of witnesses may always be shown, and such interest was involved here. State ex rel. Natl. Ammonia Co. v. Daues, 320 Mo. 1234, 10 S.W.2d 931; State v. Johnson, 349 Mo. 910, 163 S.W.2d 780. (11) The objection came after the witness Gilbert had answered and therefore too late. Rockenstein v. Rogers, 326 Mo. 468, 31 S.W.2d 792. (12) The court sustained the objection and thus gave plaintiff all of the relief that she asked. Spencer v. Quincy, O. & K.C.R. Co., 317 Mo. 492, 297 S.W. 353. (13) Plaintiff did not move for a mistrial, but instead opposed Mr. Hartman's motion for mistrial and stated that the matter could be handled by an instruction to the jury. Plaintiff is certainly estopped from complaining of error, if any, in this respect. Taylor v. Cleveland, C.C. & St. L. Ry. Co., 333 Mo. 650, 63 S.W.2d 69. (14) Plaintiff put Mr. Mavrakos on the stand to deny that the Candy Company had paid anything to the Ladue Company, and, at plaintiff's request, the court gave an instruction of the jury that there was no evidence that the insurance company had paid any damages. If there was any error it was fully cured. Orr v. Shell Oil Co., 352 Mo. 288, 177 S.W.2d 608. (15) Plaintiff's own negligence and that of her husband, with which she was chargeable, barred recovery on these allegations. Contributory negligence of plaintiff. Chawkley v. Wabash Ry. Co., 317 Mo. 782, 297 S.W. 20; Gersman v. Atchison, T. & S.F. Ry. Co., 229 S.W. 167; McGlothin v. Thompson, 347 Mo. 708, 148 S.W.2d 588; Sullivan v. Atchison, T. & S.F. Ry. Co., 317 Mo. 996, 297 S.W. 945; Woodward v. Bush, 282 Mo. 163, 220 S.W. 839; Friedman v. United Rys. Co. of St. Louis, 293 Mo. 235, 238 S.W. 1074; Cox v. St. Louis-S.F. Ry. Co., 98 S.W.2d 96; McFadden v. Baldwin, 119 S.W.2d 37; Fechley v. Traction Co., 119 Mo.App. 358, 96 S.W. 421; Leapard v. K.C. Rys. Co., 214 S.W. 268; Burton v. Pryor, 198 S.W. 1117. (16) Joint venture: the negligence of John Mavrakos. Tannehill v. Kansas City, C. & S. Ry. Co., 279 Mo. 158, 213 S.W. 818; McKerall v. St. Louis-S.F. Ry. Co., 257 S.W. 156; Roland v. Anderson, 282 S.W. 752; Smith v. Wells, 326 Mo. 525, 31 S.W.2d 1014; Counts v. Thomas, 63 S.W.2d 416; Hill v. St. Louis Public Serv. Co., 64 S.W.2d 633; Anderson v. Northrup, 96 S.W.2d 521; Haynie v. Jones, 127 S.W.2d 105; Mendenhall v. Neyer, 149 S.W.2d 366; Lucey v. John Hope & Sons Engraving & Mfg. Co., 45 R.I. 103, 120 A. 62.

Everett Hullverson and Arthur G. Heyne for respondent; Forrest Boecker of counsel.

(1) The trial court has a wide range of discretion on granting a motion for new trial. Gottschalk v. Wells, 274 S.W 399; Reichmuth v. Adler, 348 Mo. 812, 155 S.W.2d 181; Valois v. Warner, 1 Mo. 730; Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482; Zesch v. Abrasive Co. of Philadelphia, 353 Mo. 558, 183 S.W.2d 140; Cameron v. Howerton, 174 S.W.2d 206; Nagolski v. Foundation Co., 199 S.W. 176; Peetz Bros. Livery Co. v. Vahlkamp, 11 S.W.2d 26; Alexander v. St. L.-S.F. Ry., 327 Mo. 1012, 38 S.W.2d 1023. (2) The action of the trial judge in granting a new trial on the ground that the multiplicity of instructions was such as to confuse and mislead the jury, was a sound exercise of judicial discretion. Clark v. T. & E. Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Lloyd v. Alton Ry. Co., 352 Mo. 44, 175 S.W.2d 819; Coe v. Griggs, 76 Mo. 619; Desberger v. Harrington, 28 Mo.App. 632; City of Hannibal v. Richards, 35 Mo.App. 15; Kinney v. City of Springfield, 35 Mo.App. 97; McAllister v. Barnes, 35 Mo.App. 668; Norton v. St. L. & H. Ry., 40 Mo.App. 642; Doan v. St. L.K. & N.W. Ry., 43 Mo.App. 450. (3) The concepts of fellow servant and joint adventurer as defined in our courts cannot be reconciled in one set of facts. Hobart Lee Tie Co. v. Grodsky, 329 Mo. 706, 46 S.W.2d 859; Wall v. Boat Co., 333 Mo. 619, 62 S.W.2d 764. (4) It is error to give inconsistent instructions of this...

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3 cases
  • Bray v. Bi-State Development Corp.
    • United States
    • Missouri Court of Appeals
    • April 22, 1997
    ...are in fact representing a liability insurance carrier, "if they desire to incur the risk thereby involved." Mavrakos v. Mavrakos Candy Co., 359 Mo. 649, 223 S.W.2d 383, 387 (1949). In Mavrakos, the Missouri Supreme Court observed that the fact that a jury is more likely to render a verdict......
  • Robinson v. Wampler, 50707
    • United States
    • Missouri Supreme Court
    • May 10, 1965
    ...the motion for a new trial did not act upon discretionary grounds.' Wallace v. Whitzel, Mo., 324 S.W.2d 157, 159; Mavrakos v. Mavrakos Candy Co., 359 Mo. 649, 223 S.W.2d 383. The first point, founded solely on plaintiff's failure to move for directed verdicts (RSMo 1959, Secs. 510.280, 510.......
  • State v. Hendrix
    • United States
    • Missouri Court of Appeals
    • December 14, 1982
    ...trial tactics of counsel, nor otherwise restrict the function of advocacy fairly and ethically practiced. Mavrakos v. Mavrakos Candy Co., 359 Mo. 649, 223 S.W.2d 383, 388[11-13] (1949). Thus, while a court may restrict a party to one lawyer to cross-examine a witness [Thompson v. Curators o......

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