Schroeder v. Rawlings

• Decision Date: 02 May 1939
• Docket Number: 35522
• Citation: 127 S.W.2d 678,344 Mo. 630
• Parties: Joseph C. Schroeder v. Ella G. Rawlings, Administratrix of the Estate of Virgil E. Rawlings, Appellant
• Court: Missouri Supreme Court

127 S.W.2d 678

344 Mo. 630

Joseph C. Schroeder v. Ella G. Rawlings, Administratrix of the Estate of Virgil E. Rawlings, Appellant

No. 35522

Supreme Court of Missouri

May 2, 1939

Appeal from Circuit Court of City of St. Louis; Hon. Moses Hartmann, Judge.

Order granting new trial affirmed.

Clark M. Clifford and George F. Wise for appellant.

(1) The testimony of plaintiff that defendant told him that he defendant, had insurance was inadmissible; and, it having been received, it was properly withdrawn from the jury's consideration by the oral direction of the court. (a) The testimony that defendant had stated that he was insured was inadmissible. Olian v. Olian, 59 S.W.2d 673, 332 Mo 689; Whitman v. Carver, 88 S.W.2d 885, 337 Mo. 1247; Buehler v. Festus Merc. Co., 119 S.W.2d 961; Robinson v. McVay, 44 S.W.2d 238; Hill v Jackson, 272 S.W. 105. (b) Such testimony having been received, the court properly withdrew it by oral direction. Vesper v. Ashton, 118 S.W.2d 84; Stephens v Hannibal & St. J. Ry. Co., 96 Mo. 207, 9 S.W. 589, 9 Am. St. Rep. 336; Wright v. Gillespie & Co., 43 Mo.App. 244; Salmons v. Railroad, 271 Mo. 395, 197 S.W. 35; Tucker v. Tucker, 31 S.W.2d 238, 224 Mo.App. 669; Ingram v. Prairie Block Coal Co., 5 S.W.2d 413, 319 Mo. 644; Hunt v. Gus Gillerman Iron & Metal Co., 39 S.W.2d 369, 327 Mo. 887. (2) The plaintiff cannot complain of the exclusion of the evidence that defendant was insured and of the court's direction that there was no evidence of the interest of an insurance company, because plaintiff did not save any exception. (a) A party must have an exception in order to complain of the exclusion of evidence. Stokes v. Godefroy Mfg. Co., 85 S.W.2d 434; Hill v. Davis, 257 S.W. 1069; Koegel v. Givens, 79 Mo. 77; Landau v. Travelers' Ins. Co., 287 S.W. 346, 315 Mo. 760; 2 Houts' Mo. Pleading & Practice, p. 537. (b) A party must save an exception in order to complain of remarks made by the court. Wooldridge v. Hopkins, 278 S.W. 1081, 220 Mo.App. 1034; Rhoades v. Alexander, 57 S.W.2d 736; Ertl v. Wagner Elec. Mfg. Co., 238 S.W. 577; Wright v. Gillespie & Co., 43 Mo.App. 244.

Ford W. Thompson for respondent.

(1) By the opening statement made by defendant's counsel, when relating what he expected to prove, he stated that immediately after the collision the defendant walked back to plaintiff's car, from which plaintiff had descended, and had a conversation with him, and that in that conversation asked plaintiff if he was hurt, and that plaintiff stated "no, that he was not hurt." This made it perfectly proper, and entitled the plaintiff's counsel to interrogate the plaintiff as to any part of or all of that conversation, not only because it was a conversation so directly and soon after the collision as to constitute the res gestae, but since plaintiff had then actually told defendant that he was hurt, he was entitled to give the true circumstances and the entire conversation, wherein there was also a statement of the defendant that constitutes an implied admission of guilt and that his insurance company would pay the damage. Olian v. Olian, 59 S.W.2d 673; Whitman v. Carver, 88 S.W.2d 885; Palpke v. Stadelman, 300 S.W. 845. (2) The rule of law is, that where evidence is competent and material to an issue in a case, it is not error to admit it, however prejudicial it may be; whereupon, he who desires its effect to be limited, should request a proper instruction so limiting its legal effect, viz., in this case, to any admission of liability! Edwards v. Smith, 286 S.W. 428. (3) Plaintiff's motion for new trial assigned six specific prejudicial errors committed by the court in the trial, to each of which he excepted at the time and continued by said motion to urge. The court, in its order sustaining said motion for new trial, assigned and gave as its reason for so sustaining said motion for new trial but two of said grounds for new trial: "the first and sixth grounds of said motion." However, if there is any one or more of the grounds mentioned in said motion, that is meritorious, and upon which the court could or should have sustained said motion, whether singled out and mentioned by the lower court or not, it is the established law and rule of this court that it will examine and pass upon each; and, even if this court is not impressed by the grounds and reasons assigned by the lower court, it will sustain the action of the lower court if any one of the grounds assigned in said motion is meritorious. Gorner v. K. C. Bridge Co., 194 S.W. 82 Baughman v. Natl. Water Works Co., 58 Mo.App. 576; Sparkman v. Wabash Ry. Co., 191 Mo.App. 463, 177 S.W. 703; First Natl. Bank v. Hoover, 242 S.W. 107.

OPINION

Hays, P. J.

Action for damages in the sum of $ 10,000 for personal injuries and property damage sustained by plaintiff, an attorney, in a collision of automobiles which occurred in the city of St. Louis on the morning of May 19, 1932, on Oakland Boulevard, which bounds Forest Park on the south. At the trial of the case in May, 1936, the defendant obtained a verdict. On motion of the plaintiff, the court below set the same aside on the first and sixth grounds of the motion and granted plaintiff a new trial. The case is here on defendant's appeal from that order. The material facts are few and in substance as follows:

Three automobiles were proceeding in series eastward on Oakland Boulevard, maintaining approximately the same rate of speed, twenty miles an hour. A sprinkler truck was approaching from the opposite direction. Plaintiff was driving the second car, a Willys-Knight sedan, distant from the other two cars approximately twenty feet; the foremost car, a new sedan, was operated by Virgil E. Rawlings (the present appellant's husband, now deceased). When Rawlings' car reached a point about 130 feet west of Central Avenue, a cross street, it slowed down, displayed its electric rear stop-light and came to a stop. The plaintiff saw the stop-light signal, immediately undertook to stop and at the same time to give a hand-signal to the car in the rear. The Rawlings car and plaintiff's car came lightly together, and almost at the same time, the third car, a Cadillac sedan, operated by Mr. Robinson (accompanied by his wife and child), ran into the rear end of plaintiff's car and shoved it with some violence against the Rawlings car. It seems that the injuries in controversy were immediately caused by the force of the latter impact or collision. Rawlings and Robinson got out of their respective cars and talked with plaintiff. Rawlings' version of the casualty was in substance that as he neared the approaching sprinkler truck he, realizing it would wet his car and others, gave a hand or arm signal to the truck and at the same time undertook to stop his own car and to operate the electric stop-signal. Rawlings said that he slowed down gradually, moving about forty feet from the point where he first applied his brakes.

The sixth ground in the motion virtually includes the first, and is ". . . that on the admitted facts . . . the verdict is not only the result of erroneous instructions, but distinctly shows that the (court's) announcement that 'there is no evidence that an insurance company is interested in this case' prejudiced the jury against plaintiff, that the verdict is the result thereof and of the refusal of the court to permit the plaintiff to fully cross-examine the defendant."

The consideration of the points made will require the statement of some of the testimony in detail, and hereinafter, for the most part, we refer to Rawlings, now deceased, as the defendant. Plaintiff testified that, after his car was stopped, some one came to the door and asked if he was hurt and he said "Yes;" that defendant, after the accident, came back to him and said that he, defendant, had just had his car washed and that he did not want to get it dirty; that defendant repeated the above statement two or three times; that he repeated it to plaintiff alone, and in the presence of plaintiff's sister (who had driven up after the accident), and in the presence of Mr. Robinson, the driver of the car in the rear. Plaintiff testified that Mr. Robinson was driving a Cadillac car, which had been following about twenty-five or thirty feet behind him. After the appearance on the witness stand of the plaintiff, in which he gave the above testimony, the court declared a ten-minute recess. Thereafter, three other witnesses for the plaintiff were on the stand, and subsequently plaintiff himself was recalled by his counsel. After being so recalled he was again interrogated by his counsel as to the conversation which passed between defendant and himself after the collision. Plaintiff then testified that defendant told him that he did not want to get his car dirty because he had just had it washed, and that he expected the driver of the sprinkling truck to stop, and thought that he would stop; that he had defendant exchanged names, and defendant asked him if he had insurance, and plaintiff replied, "No;" that defendant said, "I have insurance." Thereupon defendant's counsel moved the court to instruct the jury to disregard the answer of the witness as to insurance, and to instruct the jury that there was no evidence that there was any insurance company interested in the outcome of the case; and defendant's counsel further asked that, if the court refused to so instruct, the jury be discharged and a mistrial declared, because of the prejudicial remark made by plaintiff. The court indicated that it would not pass upon the motion until the following morning. Whereupon defendant's counsel called attention to the fact that it was then four-thirty P. M., and urged the court to instruct the jury while the matter was fresh in their minds. The court finally refused...