Pettit v. Goetz Sales Co.

• Decision Date: 07 December 1926
• Parties: MILTON PETTIT, BY NEXT FRIEND, MARTHA M. PETTIT, RESPONDENT, v. GOETZ SALES COMPANY, APPELLANT. [*]
• Court: Kansas Court of Appeals

281 S.W. 973

221 Mo.App. 966

MILTON PETTIT, BY NEXT FRIEND, MARTHA M. PETTIT, RESPONDENT, v. GOETZ SALES COMPANY, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

December 7, 1926

Appeal from the Circuit Court of Buchanan County.--Hon. Sam Wilcox Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

Schultz & Owen and Mytton & Parkinson for respondent.

Culver Phillip & Voorhees for appellant.

ARNOLD J. Bland, J., concurs on account of what was said by the Supreme Court regarding the humanitarian rule in Banks v. Morris & Co., 257 S.W. 482, 484, 485. Trimble, P. J., absent.

OPINION

ARNOLD, J.--

This is an action in damages for personal injury alleged to have been caused by the negligence of a servant of defendant in the operation of an automobile truck. Plaintiff was twenty years old at the time of the accident and within two weeks of being twenty-one years of age at the time of the trial.

The record discloses that the accident occurred about six o'clock P. M., November 3, 1923, at the intersection of Calhoun and Twenty-fifth streets in the city of St. Joseph and that it was dark at that hour. Calhoun street runs east and west and intersects Twenty-fifth street at right angles. Plaintiff was employed by a dairyman in delivering milk to his customers and at the time of the accident he had completed his daily task and was on his way home, riding a bicycle. He was proceeding south on the west side of Twenty-fifth street, approaching Calhoun street from the north. Defendant's automobile had entered Twenty-fifth street one block south of Calhoun street and according to plaintiff's evidence, was proceeding north on the west side of said street and about six feet from the west curb thereof. But defendant's evidence is that the car was in its proper position on the east side of Twenty-fifth street, said street at this point being thirty to thirty-three feet in width from curb to curb. The headlights on the car were burning. The accident occurred as the automobile was being turned west into Calhoun street.

Plaintiff testified that he first saw defendant's automobile when he was at, or near, the north line of Calhoun street and about five or six feet east of the west curb line of Twenty-fifth street; that the automobile was being operated at a speed of twenty to thirty miles per hour; that when he first saw the car it was about three times as far south of the south line of Calhoun street as he was north of said line; that when he first saw the car it was headed directly toward him, traveling north; that he did not change his course in the slightest until the car was within about two feet of him, when the car suddenly turned toward the west; that the two vehicles came together near the south line of the intersection, resulting in damage to plaintiff's bicycle and injuries to himself. He stated he was taken to his home by a friend in another automobile.

The evidence shows that the automobile in question was being driven by an employee of defendant, and that the driver was seated on the left side of the car and there was a helper with him, seated on his right. Testimony in defendant's behalf is to the effect that the driver of the automobile did not see plaintiff approaching and was only aware of his presence on feeling the effect of the compact; that the helper saw plaintiff only when the latter was within two feet of the truck and that he called to the driver, but it was then too late to avoid the collision. The testimony shows that the bicycle and automobile collided at the right front fender of the latter, and that there was no warning or signal given of the intention of the driver of the truck to turn west into Calhoun street. In explanation of his failure to stop, plaintiff testified he thought the driver of the truck intended turning east into Calhoun street or that he would change his course and swing over to the east side of Twenty-fifth street; that the driver did not sound a horn or give any other warning signal.

The petition charges ownership of the automobile in defendant and that it was being operated by defendant's agent while in the line of duty.

An ordinance of the city of St. Joseph, to-wit, No. 2022, approved August 7, 1922, was pleaded and is to the effect that all motor vehicles when in operation shall be driven as near the right-hand side of the highway as practicable; and that the operator of any motor vehicle approaching an intersecting street and turning to the left shall run beyond the center of such intersection, passing to the right thereof, before turning such vehicle to the left. The negligence charge is that (1) the automobile was driven at a high and dangerous rate of speed; (2) that it failed to be kept to the right side of the street; that (3) said vehicle turned around the southwest corner of the intersection and to the left of the center thereof, without sounding a horn or giving any signal of its approach at, or near, the intersection, all in violation of the pleaded ordinance of the city of St. Joseph; (4) that defendant's driver negligently and suddenly turned said automobile to the left across said intersection at such an angle as to block plaintiff's passage, thereby causing the collision.

The petition also pleads a violation of the humanitarian, or last clear chance, rule as follows: ". . . that defendant through its agent at all times knew, or by the exercise of ordinary care could have known, that plaintiff was in a position of peril and that he was oblivious of the same, in time, by the exercise or ordinary care, to have avoided the said accident, and negligently failed to do so," and that plaintiff, at all times, was in the exercise or ordinary care.

The injuries alleged are "that plaintiff's head, back, body, arms and limbs were cut, bruised, contused, wrenched, torn, sprained, and the muscles, ligaments, arteries, veins, nerves, tendons and tissues were strained and injured; that his left shoulder, left arm and limb, also his right leg, right knee and knee cap were wrenched, contused and sprained, and the bones of the same were injured; that his entire nervous system was also injured, and he was injured internally; that all of said injuries, so carelessly and negligently inflicted, as aforesaid, plaintiff has suffered, and will hereafter suffer great bodily pain and mental anguish; that his ability to earn a livelihood has been impaired and decreased . . ."

The answer of defendant, after admitting its corporate existence, is a general denial of all other allegations in the petition.

Upon the pleadings thus made the cause was tried to a jury, resulting in a verdict for plaintiff in the sum of $ 5000. Motions for new trial and in arrest were unavailing and defendant appeals.

In support of the appeal, it is first charged that the court erred in permitting plaintiff's counsel to ask improper and, prejudicial questions on the voir dire examination of the jury. This charge is based upon the following occurrence, during the interrogation of the panel of eighteen jurors as to their qualifications:

"MR SHULTZ: Are any of you or members of your family stockholders, bondholders or employees in the Casualty Reciprocal Exchange Insurance Company? The name of the company is the Casualty Reciprocal Exchange. I substitute that in the question instead of the way I read it to you before--Are any of you stockholders, bondholders or members of your family employed by the Reciprocal Exchange, a corporation?

"MR. VOORHEES: The defendant objects to this question and other questions which immediately precede along this line because it is prejudicial and asked for the sole purpose of prejudicing the jury. The attorney for defendant informed the plaintiff's counsel, who was examining the jury, as to the name of the Casualty Reciprocal Exchange before he began to examine the jurors. He added the name of 'Insurance Company' to that. His whole line of examination about the insurance company has been improper and prejudicial and defendant asked that the jury be discharged because of these improper questions.

"THE COURT: The objection is sustained as to the form of the question. Counsel should ask whether any member of the jury is connected in any way with the Casualty Reciprocal Exchange and not refer to it as a corporation or insurance company. The motion to discharge the jury is overruled.

"To which ruling of the court defendant at the time excepted.

"MR. VOORHEES: This ruling of the court and defendant's objection have both been made out of the hearing of the jury.

"MR. SHULTZ: I withdraw from my question in reference to the Casualty Reciprocal Exchange as to whether or not it is a corporation. I don't know whether it is a corporation or not, but its name is Casualty Reciprocal Exchange and my question is whether any of you are stockholders or bondholders or employed by this company?

"MR. VOORHEES: I object to that question and the remarks of the counsel in connection with that question. That they are prejudicial and improper and I again ask that the jury be discharged.

"THE COURT: Objection overruled.

"To which ruling of the court defendant at the time excepted.

"MR VOORHEES: Just before the voir dire examination of jurors was begun, Mr. O. E. Shultz, counsel for plaintiff, asked Mr. B. G. Voorhees, counsel for defendant, if there was any liability insurance in this case and Mr. Voorhees replied that the defendant was insured in the Casualty Reciprocal Exchange, an inter-insurance concern, covering a number of companies engaged in similar lines of industry; that it was a concern just as its name indicated, a reciprocal...