Paepke v. Stadelman.

• Decision Date: 05 December 1927
• Docket Number: No. 16106.,16106.
• Citation: 300 S.W. 845
• Parties: PAEPKE v. STADELMAN.
• Court: Missouri Court of Appeals

300 S.W. 845

PAEPKE v. STADELMAN.

No. 16106.

Kansas City Court of Appeals. Missouri.

December 5, 1927.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by Gracya Paepke against James It. Stadelman. Judgment for plaintiff, and defendant appeals. Affirmed.

Landis & Duncan, of St. Joseph, for appellant.

Barney Reilly and Miles Elliott, both of St. Joseph, for respondent.

FRANK, C.

This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff as a result of a collision between a Ford coupe driven by plaintiff and a Paige touring car belonging to defendant, James R. Stadelman, but driven at the time in question by defendant, James H. Paddock, as agent and servant of defendant, Stadelman. The collision occurred on August 22, 1926, at the intersection of Third street and Hyde Park avenue, in the city of St. Joseph. At the close of the evidence plaintiff dismissed as to defendant, James H. Paddock. The verdict and judgment was for plaintiff and against defendant, Stadelman. After the usual preliminary steps, defendant appealed.

No complaint is lodged against the petition, and no claim is made that the evidence is insufficient to prove the negligence alleged therein. On the record thus made, it is only necessary to state such facts as are pertinent to a disposition of the points raised.

The first, second, and third assignments of error relate to the same subject and may be considered together. Such assignments are (1) that the court erred in admitting evidence to the effect that defendant, Stadelman, had indemnity insurance; (2) the court erred in refusing to strike out such testimony ; and (3) that the court erred in refusing to discharge the jury on account of errors alleged under assignments 1 and 2, supra.

Upon direct examination of plaintiff's husband, who testified on behalf of plaintiff, the following occurred:

"My name is John A. Paepke. I am a city fireman living at 104½ East Valley street. My wife's name is Gracya. I do not know the gentleman sitting over there, but had a conversation with Mr. Stadelman shortly after my wife was injured, at his office on the third floor of the Corby-Forsee building.

"Q. I wish you would tell this jury what, if anything, you said to Mr. Stadelman, and what he said to you in response to what you said to him. A. I went up to see him, told him about the accident, and he told me Mr. Paddock there was driving his car, and that—

"Mr. Duncan: We object to that as not binding on Mr. Paddock.

"The Court: It is competent for the other party.

"Q. What did he say Mr. Paddock was doing': A. He said Mr. Paddock was driving some of his friends on business—something like that.

"Mr. Duncan: We move to strike out the answer.

"The Court: I think it is competent. Objection overruled. (To which ruling of the court defendants at the time excepted.)

"Q. You say he told you Mr. Paddock was driving his car on the date of the accident on some business for Mr. Stadelman? A. Yes.

"Q. This took place in his office in the Corby building ? A. Yes.

"Q. What other conversation, if any, did you have with him? A. I asked him what he was going to do about it—

"Mr. Duncan: We object to any testimony involving any effort to adjust the matter. "The Court: There has been no evidence in regard to an adjustment. This is not directed to that.

"Mr. Reilly: No, no—just asking the conversation he had with Mr. Stadelman and what he said concerning the accident.

"The Court: Proceed.

"The Witness: Well, he said I would have to go to see the insurance company.

"Mr. Duncan: We move to strike out that answer. We object to it. We further move that the jury be discharged from further consideration of this case.

"The Court: I think the evidence is competent as tending to show the ownership of the car, if the ownership is admitted

"Mr. Duncan: It is admitted Stadelman owns the car—was admitted in the opening statement. I later said I wouldn't make it again.

"The Court: It was left in such shape it was doubtful.

"Mr. Duncan: We object for the further reason that there was nothing in the answer of the witness that pertained to the ownership of the car.

"The Court: The court will not sustain the objection, but we will go no further into that. (To which ruling of the court defendant at the time excepted.)

"Mr. Duncan: We renew our motion for the discharge of the jury.

"The Court: The motion is denied. (To which ruling of the court defendant at the time excepted.)"

The question presented is whether or not this evidence is relevant and competent for any purpose. If so, its admission was proper, even though it tended to show that defendant had liability insurance.

Defendant's ownership of the car was one of the elements of plaintiff's case. The answer denies such ownership; therefore any evidence tending to show that defendant owned the car at the time in question was admissible. The fact that defendant had indemnity insurance is a circumstance tending to show that he owned the car and was admissible on that issue. After this evidence was admitted, defendant's counsel stated:

"It is admitted Stadelman owns the car— was admitted in the opening statement. I later said I would not make it again."

The court then said:

"It was left in such shape it was doubtful."

On this record we think the court was justified in holding that it was doubtful whether or not the ownership of the car had been admitted.

The law is well settled that competent evidence may not be excluded when offered on the ground that such evidence would tend to prejudice the jury against one of the parties. Jablonowski v. Modern Cap Co. (Mo. Sup.) 279 S. W. 89, 97.

Defendant called as a witness one C. C. McKinley, whose testimony seemed to surprise defendant's counsel. For the purpose of showing such surprise one of defendant's attorneys, John C. Landis, III, was called as a witness by the defendant and testified to statements made to him by witness McKinley directly contradictory to the testimony given by him on the witness stand. On the cross-examination of witness Landis, the following occurred:

"Q. Whom do you represent? What is your interest in this case? A. Frankly, I don't know. I am with Landis & Duncan.

"Q. Mr. Stadelman is not paying you any fee? A. No, sir.

"Q. Who is paying the fee, or what is your interest? A. I am on a salary in the office of Landis & Duncan.

"Q. Who is paying your father and Duncan? A. I haven't any idea.

"Q. You haven't any idea? A. None at all. I haven't been told.

"Q. And without being told, you haven't any idea who is paying any fee to your father and Mr. Duncan in this case? A. I could make a guess.

"Q. Well, what is it?

"Mr. Landis: We object to that.

"The Court: Objection sustained.

"Q. Is there anybody interested in this case with your firm, or that your firm represents and that you work for and your father works for from month to month?

"Mr. Landis: We object to that.

"The Court: The objection is sustained."

Appellant's contention is that counsel's purpose in cross-examining the witness Landis, in the manner above indicated, was to show that either he or his firm was in the employ of the insurance company, thereby directing the attention of the jury to the fact that the real defendant was not Stadelman, but was an unknown insurance company.

Witness Landis saw fit to take the witness stand as a witness for defendant, and, after having done so, plaintiff had the right to show by his cross-examination any fact or circumstance that would tend to show his interest or bias respecting the issues on trial. The language of the Supreme Court in the case of Snyder v. Wagner Electric Manufacturing Co., 284 Mo. 285, 223 S. W. 911, on a situation similar to that presented by the record in this case, is, we think, decisive of the point here presented. In that case the court said:

"It is not suggested, either by brief or in oral argument of counsel, that a casualty insurance company is not taking the burden of the defense of this case, as it has the perfect right to do. It has not only the right, but the obligation often rests upon it, to protect its, stockholders against wrongful claims in all legitimate ways, and the defense of suits not founded in honest liability is one of those ways, but in the trial of such cases upon the merits the jury is entitled to know everything that affects the credibility of witnesses and the to be given their testimony, including their interest, not only in the subject-matter, but in the parties who are to profit or lose by the verdict. This goes not only to contractual relations with reference to the subject-matter of their testimony, but to their friendships and enmities. * * *

"When Mr. Bowser testified the plaintiff had the right to ask him if he was not an employee of the defendant, and for the same reason and for the same purpose had the right to ask him if he was not there for the insurance company which produced him. For the same reason the plaintiff had the right to ask Dr. Schreck if he was not the paid agent of the insurance company with respect to the subject of his testimony, The case as it is presented in this reccord could not have been honestly placed before the jury without the disclosure of the relation which these witnesses sustained to that company."

In Jablonowski v. Modern Cap Mfg. Co. (Mo. Sup.) 279 S. W. 89, 97, the Supreme Court, after quoting approvingly from the Snyder Case, supra, says:

"In other words, the interest or bias of a witness with respect to the issues on trial, his relation to the parties, and the state of his feelings toward them, are never irrelevant or collateral matters. State v. Mulhall, 199 Mo. 202, 212, 97 S. W. 583, 7 L. R. A. (N. S.) 630, 8 Ann. Cas. 781; 28 R. C. L. 614, 615."

We understand the rule in this state to be that, when, in the trial of a suit to recover damages for personal injuries, evidence that defendant had indemnity insurance is...