Pinter v. Wilson

• Decision Date: 17 February 1932
• Docket Number: No. 28863.,28863.
• Citation: 46 S.W.2d 548
• Parties: PINTER v. WILSON.
• Court: Missouri Supreme Court

46 S.W.2d 548

PINTER v. WILSON.

No. 28863.

Supreme Court of Missouri, Division No. 2.

February 17, 1932.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

Action by Anna M. Pinter against Robert E. Wilson. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Mason, Goodman & Flynn, of St. Louis, for appellant.

Woodward & Evans, of St. Louis, for respondent.

COOLEY, C.

Appeal by plaintiff, Anna M. Pinter, from a judgment of the circuit court of the city of St. Louis in favor of the defendant, respondent herein. Plaintiff sued defendant, a physician and surgeon, to recover actual and punitive damages because of an operation for removal of her appendix performed upon her by defendant. Plaintiff alleged that the operation was performed upon her by defendant wantonly and maliciously and without her consent, and that it was not necessary "as an emergency measure to save plaintiff's life." She offered evidence tending to prove said cause of action. Defendant's evidence tended to prove that the operation was performed by him with the consent of plaintiff and her husband. The verdict of the jury was for the defendant, and judgment was entered accordingly. For the purpose of this appeal, the foregoing is a sufficient statement of the facts except upon the one point presented for review.

Appellant in her brief here assigns error in, and seeks review of, but one ruling of the trial court, viz., the refusal of the court to permit her to interrogate the panel of jurors on voir dire examination concerning their relations or connection with the Medical Protective Association which had employed the lawyer, W. H. Woodward, who represented defendant in the trial of the case.

During the voir dire examination of the jurors the following occurred between counsel for the respective parties and the court, out of the hearing of the jurors:

"Mr. Schwarzenbach (for the plaintiff): I understand, Mr. Woodward, you represent the Medical Protective Association of Ft. Wayne, Indiana, and that they have an interest in this case?

"Mr. Woodward (for the defendant): That is correct.

"Mr. Schwarzenbach: Is it a stock company, or reciprocal?

"Mr. Woodward: You can't prove it by me; I don't know.

"Mr. Schwarzenbach: I imagine it is reciprocal.

"Mr. Woodward: I imagine —

"The Court: Well, have you any testimony as to what it is?

"Mr. Schwarzenbach: No, I haven't.

"The Court: If it is a stock company, I think I would let you ask the question, but if it is not —

"Mr. Schwarzenbach: If it is an association, I am entitled to ask that, if any of them are employed by the association or have any close friends who are in their employ.

"Mr. Woodward: I don't think so, until there is some showing of good faith.

"The Court: Not until you have evidence of good faith. He says it is a protective association, and on that statement I can let you ask the question, provided it is one of these that friends might be interested in, but the mere fact that they may be isn't sufficient, I take it.

"Mr. Woodward: I may say that I know it to be a fact that the only ones covered are doctors and dentists. In other words —

"Mr. Schwarzenbach: I understand —

"The Court: It may be a stock company at that.

"Mr. Woodward: I don't know. If I knew it, I would state it frankly, but I have no information at all. I object to his asking that question.

"The Court: I will sustain the objection."

Plaintiff duly saved her exceptions to the court's ruling.

In view of recent decisions of this court, there can be no doubt that plaintiff was entitled to inquire of the jurors whether or not any of them were employed by said association, which admittedly was interested in the result of the trial, and that the court's refusal to permit such inquiry was reversible error. In Smith v. Star Cab. Co. et al., 323 Mo. 441, 19 S.W.(2d) 467, 469, it was said: "The rule is settled in this state that a plaintiff is entitled to qualify the jurors as to their relations, if any, with insurance companies interested in the result of the trial. This ruling is sustained by the overwhelming weight of authority, as evidenced by a review of the cases in 56 A. L. R. 1454 to 1499. The Missouri cases there reviewed sustain the rule." See also Galber v. Grossberg, 324 Mo. 742, 25 S.W.(2d) 96; Maurizi v. Western Coal & Mining Co. (en banc) 321 Mo. 378, 11 S.W.(2d) 268; Schuler v. St. Louis Car Co., 322 Mo. 765, 18 S.W.(2d) 42, 46; Decker v. Liberty (Mo. Sup.) 39 S.W.(2d) 546.

The trial court's ruling seems to have been based upon the proposition that there was no showing on the part of plaintiff of good faith in the proposed inquiry; and respondent cites cases holding that it is reversible error for a plaintiff to propound questions to jurors on voir dire examination which suggest the thought that an insurance company is interested, or to ask such questions of witnesses, when it does not appear that the plaintiff had grounds for believing that an insurance company was so interested and where the inquiry is not made in good faith. But ...