Moss v. Mindlin's, Inc.

• Decision Date: 10 December 1956
• Docket Number: No. 1,No. 45108,45108,1
• Citation: 301 S.W.2d 761
• Parties: Lawrence MOSS, Respondent, v. MINDLIN'S, Incorporated, a Missouri Corporation, Appellant
• Court: Missouri Supreme Court

Page 761

301 S.W.2d 761

Lawrence MOSS, Respondent, v. MINDLIN'S, Incorporated, a Missouri Corporation, Appellant.

No. 45108.

Supreme Court of Missouri, Division No. 1.

Dec. 10, 1956.

Transferred to Court en Banc Jan. 14, 1957.

Remanded in Division No. 1 May 13, 1957.

Richard H. Beeson, David P. Dabbs, Dean F. Arnold, Kansas City, for appellant.

Lyman Field, Rogers, Field, Gentry & Jackson, Marvin P. Richmond, Kansas City, Charles L. Carr, Kansas City, of counsel, for respondent.

COIL, Commissioner.

Lawrence Moss was injured when he fell on the floor of Mindlin's, Inc., a retail store in Kansas City, shortly after he had departed from an elevator. He obtained a judgment for $50,000 and Mindlin's appealed therefrom.

Plaintiff's evidence was that defendant's employee pushed a hand truck (referred to as a dolly) into plaintiff's right ankle as plaintiff walked from the elevator. Defendant's evidence was that its employee with the dolly remained stationary and that plaintiff fell when his feet entangled with each other, contributed to by the fact that he was, as he turned partially to his right, looking over his left shoulder at live models who were then in the process of showing sportswear in the store. The dolly was a wood platform about 2 1/2 X 5 feet resting on four wheels about 6 inches high. One end of the platform was open; at the other were three steel bars, above the topmost of which was a handle bar (about 3 feet from the floor) by which the dolly could be propelled.

Defendant contends the trial court erred in overruling its motion to discharge the jury on the ground that plaintiff's counsel in jury argument prejudicially injected the fact of defendant's insurance coverage. It appears to have been conceded that Central Surety & Insurance Corporation was interested in the defense of the action. Without objection, plaintiff's voir dire examination included the usual questions concerning connection with that company and acquaintance with certain of its employees. Insurance was not mentioned during plaintiff's case. Defendant's John McNutt, whom plaintiff claimed pushed the dolly into him, testified on cross-examination that he had met defendant's trial counsel two weeks preceding the trial and volunteered that such counsel had not talked with him when the accident happened. Plaintiff's counsel disclaimed any implication that defendant's trial counsel was present at the time of the accident, whereupon the witness volunteered, without objection and without subsequent motion to strike: 'No, I mean he was not the insurance man, you know, that came, the lawyer that came, I mean at the time when this happened.'

Plaintiff's counsel later brought out by extensive cross-examination that the pictures which showed defendant's claim as to the position of the witness and dolly at accident time were posed pictures taken five days subsequent to the fall when plaintiff was in the hospital and at a time when no claim had been made against defendant; and, in that connection, pressed for an answer as to why it was that, as defendant at that time claimed that the dolly was not involved in any way and no claim had been made that it was, the dolly was nevertheless made a part of the picture. On redirect, defendant's counsel brought out, over an objection that the question was repetitious, that at the time the two photographs were taken the witness McNutt was 'requested to place the dolly in exactly the position it was when Mr. Moss fell.' Immediately thereafter on recross-examination plaintiff's counsel inquired as to the identity of the person who had requested witness to place the dolly in that position, and witness replied that it was 'The lawyer for the insurance firm.' Plaintiff's counsel then inquired why it was that the 'lawyer for the insurance firm' was anxious to get the dolly in the picture when the dolly had nothing to do with the fall according to the defendant. And again plaintiff's counsel inquired why another employee whom witness McNutt said was standing at the other side of the elevator entrance at the time of the fall, was not posed in the picture if it was an exact reproduction of the conditions as they existed at the time of the fall. In the course of that examination one of the questions included the statement 'When the insurance lawyer * * * took it [the picture] five days after the fall.'

There was no objection to any of those questions or answers and there were no motions to strike any of the answers. Thereafter, at a conference in chambers, defendant's counsel admitted that Mr. Windsor, an investigator for Central Surety, had investigated the instant accident, had procured the services of a photographer, and that the pictures were taken when Mr. Windsor was present. Defendant's counsel suggested to the court that while he had made no objection or motion to discharge the jury because of the mention of insurance for the reason that in his view the matter thus far had come into the case inadvertently, he thought that the rest of the case should be conducted without mention of insurance. The trial court took the position that there was nothing before it on which to rule, and plaintiff's counsel, while refusing to agree that he would not again mention insurance, nevertheless indicated that he did not intend to so frame his future questions as to unduly emphasize the fact of insurance. The court indicated that he would rule any specific matter in that connection when and if it arose. There was no further mention of insurance during the examination of any other witness.

During jury argument plaintiff's counsel was attacking the credibility of the witness McNutt as to his testimony that he had always pulled the dolly and had not pushed it because he had a sore stomach. Plaintiff's counsel argued that if it were true that at the time of the accident the dolly was in the position shown in the photograph, that is, stationary with McNutt standing in front of and with his back to the handle bar and thus with the entire dolly behind him, and if it were true that, as defendant claimed, plaintiff had fallen simply because he 'got all tangled up in his feet, then, * * * why on earth was it necessary to pose these pictures while he [plaintiff] was still in the hospital only five days after the fall? Why did the insurance company, as McNutt admitted, have these pictures posed?'

Out of the jury's hearing, defendant objected and moved a mistrial on the ground that the statement was an intentional and prejudicial injection of the fact of defendant's insurance coverage and constituted an argument against the insurance company. The trial court overruled the objection and commented that defendant's witness had brought out the fact of insurance investigation on examination by defendant's counsel, that there had been considerable examination about it without objection, and that the instant objection came too late. Immediately thereafter, plaintiff's counsel resumed his argument and said, 'And I say to you, ladies and gentlemen, when the insurance lawyer or man, as John McNutt says, took these pictures, * * * he was preserving evidence at that time envisioning a trial, and * * * why didn't you have some pictures taken and posed by the insurance man that he said was there that showed a close up of the floor at the place where he fell to show that the linoleum wasn't uneven, that there wasn't any dirt there or stain or obstruction?' And in closing argument, plaintiff's counsel, in arguing that the entire case had been 'shaped up,' said that the first step in the 'shaping-up' process began 'with these phony pictures that the insurance lawyer took within five days of the accident--no claim, no nothing made, man out in the hospital, he got the dolly truck in there. That is when the shape up starts.'

It is at once apparent that the argument made by plaintiff's counsel wherein he referred to insurance company, insurance lawyer and man, was an exact reference to the testimony in that respect which had come into the case without objection. The fact, however, that the evidence had come in without objection, if it was wholly irrelevant and immaterial for any purpose, would not justify the use of such evidence in making an unfair and prejudicial argument. Amsinger v. Najim, 335 Mo. 528, 532, 533, 73 S.W.2d 214, 216. In our view we need not rule whether the evidence at the time offered was relevant and material upon the credibility of the witness McNutt and upon the weight to be given the crucial pictorial evidence. It may be observed, however, that if McNutt's testimony as to the correctness of the picture was true, plaintiff could not recover, and thus it was proper for plaintiff's counsel to probe the verity not only of the witness' statements but to examine into the circumstances under which the pictures had been taken, and in that connection show that the pictures had been taken under the supervision of one who was financially interested in defeating plaintiff's claim. It may be that the jury was entitled to draw the inference that because the picture was posed under the supervision of an insurance company representative, it did not truthfully portray the witness' position with the dolly at the time of the accident but, on the contrary, portrayed only the supervisor's idea. Was the insurance company's supervision an act which 'might influence or color the evidence on the merits' and thus make the disclosure that the supervisor was an employee of the covering insurance company relevant and material? Buehler v. Festus Mercantile Co., 343 Mo. 139, 157, 119 S.W.2d 961, 969. On the contrary, of course, it may be said that even though plaintiff could show that the pictures were taken under the supervision of defendant's agent, his interest would appear from the fact that he was defendant's agent, and the fact that he was also the employee of the investigating insurance carrier would add nothing to affect the credibility of...