Muehlebach v. Muehlebach Brewing Co.

• Decision Date: 22 May 1922
• Docket Number: No. 14396.,14396.
• Parties: MUEHLEBACH v. MUEHLEBACH BREWING CO.
• Court: Missouri Court of Appeals

242 S.W. 174

MUEHLEBACH v. MUEHLEBACH BREWING CO.

No. 14396.

Kansas City Court of Appeals. Missouri.

May 22, 1922.

Rehearing Denied June 12, 1922.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, judge.

"Not to be officially published."

Action by Zaver Muehlebach against the Muehlebach Brewing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

McCune, Caldwell & Downing and Chas. M. Bush, all of Kansas City, for appellant.

Hogsett & Boyle, of Kansas City, for respondent.

BLAND, J.

This is a suit for damages for personal injuries. There was a verdict and judgment in favor of plaintiff in the sum of $8,000. Plaintiff voluntarily remitted $500 from the judgment, and defendant has appealed.

The facts show that on July 11, 1919, plaintiff was in the employ of the defendant driving a truck used in the delivery of Mulo, a nonintoxicating beverage manufactured by defendant. While standing in the center of the truck attempting to move an empty barrel he inadvertently stepped into a hole in the middle of the truck, causing him to become overbalanced and to fall head forward to the pavement, striking on his left hand and right shoulder. Defendant claims that plaintiff's counsel intentionally brought to the attention of the jury the fact that the case was being defended by a liability insurance company.

The following occurred on the voir dire examination of the jury by plaintiff's counsel:

"Q. Are any of you gentlemen acquainted with Mr. Bush, the attorney who is appearing here for the defendant? A. (No reply.)

"Q. Or with Mr. Murray, also an attorney for the defendant? A. (No reply.)

"Q. Are any of you gentlemen connected in a business way with the Maryland Casualty Company? A. (No reply.)

"Q. Or have you been at any time in the past? A. (No reply.)

"Q. Are any of you in any way identified or connected with that company? A. (No reply.)

"Q. Are you acquainted with Mr. Lawrence Phister, an agent of the Maryland Casualty Company, or with Mr. Ellis Harvey, of that company? A. (No reply.)"

No objection was made to these questions, and this manner of examining the jury under circumstances such as are present in this case has been approved. Kinney v. Met. St. Ry. Co., 261 Mo. 97, 114, 169 S. W. 23; Meyer v. Mfg. Co., 67 Mo. App. 389; Wagner v. Gilsonite Construction Co. (Mo. Sup.) 220 S. W. 890, 897, 898; Distler v. Ins. Co., 206 Mo. App. 263, 227 S. W. 133, 137; Boten v. Ice Co., 180 Mo. App. 96, 106, 166 S. W. 883.

Defendant insists that these questions were not asked in good faith, and in this connection points out other matters that arose during the trial which are also complained of. In this connection our attention is called to the following matter:

"Q. Mr. Bush asked you if you could have nailed a board over this hole; that would make something else to trip over, wouldn't it?

"Mr. Bush: I object to that—

"Mr. Hogsett (interrupting and continuing): That is a fine way for that company of yours to repair—

"Mr. Bush (interrupting): We except to that statement, as an attempt to prejudice the jury, `that is a fine way for that company of mine to do,' and move it be stricken out.

"The Court: Sustained.

"Mr. Hogsett: Q. Wasn't it your company? If you had nailed a board over that hole big enough to cover it, wouldn't the board you nailed over have stuck over the level of the other boards on the truck?"

Counsel for defendant had theretofore questioned plaintiff, who was on the witness stand at the time of this occurrence, as to why plaintiff had not nailed a board over the top of the hole. It is insisted that the first part of the last question contained an obvious innuendo that counsel was not representing defendant, but an insurance company. Plaintiff's counsel states that what passed between counsel was merely good-humored byplay. However this may be, we do not think the occurrence is subject to the construction put upon it by the defendant. It will be noted that, while there was an objection, it went only to a matter not now being insisted upon, and no suggestion was made by the defendant that plaintiff was attempting to get before the jury the fact that there was an insurance company in the case. The insurance company would not be expected to repair the truck, but rather the defendant. Whether or not the remark of plaintiff's counsel, "Wasn't it your company?" was made merely in a spirit of jest, we are unable to see in the occurrence any intimation by plaintiff's counsel that an insurance company was in the case, and, whatever may have been the intention of counsel for plaintiff, we cannot reverse a cause unless error affirmatively appears in the record.

During the examination of Dr. Neal, one of plaintiff's physicians, defendant's counsel in cross-examination asked the doctor the following:

"Q. By the way, you have testified for Mr. Hogsett in a great many damage suits, haven't you? A. An occasional one.

"Q. Not `occasional': you have testified in 100? A. No, sir.

"Q. Fifty, anyway? A. No, sir.

"Q. You haven't testified for Mr. Hogsett in 50 cases? A. Not any more than in your cases.

"Q. Well, it has been 50 cases? A. No, sir; don't think so.

"Q. A great many? A. Yes, sir."

Upon redirect examination the following occurred:

"Mr. Hogsett: Q. Mr. Bush referral to the fact you have testified in cases where I appeared? A. Yes, sir.

"Q. You were a surgeon and appeared for companies I represent? A. Yes, sir.

"Q. Are you also a surgeon and have appeared for liability companies represented by Mr. Murray? A. Yes, sir."

Whereupon the following proceedings took place out of the hearing of the jury:

"Mr. Bush: Wait a minute. At this point, in response to the question of Mr. Hogsett that 'you have also been a surgeon for liability companies represented by Mr. Murray,' the attorney for the defendant, defendant states to the court that that remark is improper and for the purpose of influencing and prejudicing the jury; that it has a tendency to and calls attention of the jury to the fact that the company is represented by a liability company, and for that reason the defendant moves the jury be discharged from further consideration of this case.

"The Court: Motion overruled. (To which action and ruling of the court the defendant, by its counsel, at the time then and there duly excepted and still excepts.)"

Whereupon the following proceedings were had within the hearing of the jury:

"Mr. Hogsett: Q. Mr. Bush asked you whether you had testified in 100 cases. As a matter of fact, were you ever on the witness stand in a case where I appeared, on either side, in more than 8 cases, in your entire practice here? A. I don't know. It hasn't been very many.

"Q. Have you appeared as a witness in any case that I have tried within the last two years in this court or any court? A. I don't know, Mr. Hogsett; I don't recall.

"Q. Have you been as closely associated in a professional way with Mr. Murray as you have with me? A. Yes, sir."

Defendant admits that it would have been proper for plaintiff's counsel to ask the doctor if he had not appeared "for companies" represented by Mr. Murray, who was one of defendant's attorneys assisting in the trial of this case, but urges that, when plaintiff's counsel mentioned "liability" companies, he overstepped the bounds and committed prejudicial error by getting before the jury the fact that there was a liability company defending the case. Plaintiff in his brief says that the use of the expression "liability company" "was merely to explain the nature of the relations between Dr. Neal and Mr. Murray," and, in view of the fact that defendant attempted to show a friendly relation between Dr. Neal and plaintiff's counsel, that plaintiff had a right to have the jury "know the exact relation of the witness toward counsel on both sides in this case."

We think that counsel for plaintiff came very near the border line in asking this question in the way he did, but after an extended and careful consideration of the matter we have come to the conclusion that we should not reverse the case on account of this occurrence. If there could be no question but that counsel had intended to and did get before the jury the question of a liability company defending this case, we would not hesitate to remand the case for another trial. We think that the matter was not pursued far enough to acquaint the jury with the facts. The question was not, "Have you appeared for the liability company who is represented by Mr. Murray in this case?" but whether the doctor had not appeared for liability companies represented by Mr. Murray. The fact that Mr. Murray had represented liability companies would not necessarily mean that he was representing one in this case. The trial court was in a better situation than are we to determine whether the question was asked in such a way as to infer that Mr. Murray was representing a liability company in the case on trial. Such an inference or innuendo does not appear on the cold pages of the record, and, as the trial court overruled the motion for a new trial, we do not think that we should say that the jury understood from the question asked that a liability company was defending the case. We recognize the fact that this is a close point, and we do not want to be understood as encouraging members of the bar to approach the border line so closely in the future, because sooner or later those bounds will be overstepped, resulting in a reversal of the case.

It is claimed that plaintiff attempted to get before the jury the question of the liability company being in the case in connection with the testimony of the witness Burdick. However, respondent's additional abstract of the record shows that these occurrences happened without the hearing of the jury. While there is some controversy as to whether those matters did or did not happen in the presence of the jury, in view of the fact that respondent's abstract of the record shows that the...