Smith v. Lammert

• Citation: 41 S.W.2d 791
• Decision Date: 05 September 1931
• Docket Number: 29683
• Parties: SMITH v. LAMMERT
• Court: United States State Supreme Court of Missouri

41 S.W.2d 791

SMITH v. LAMMERT

No. 29683

Supreme Court of Missouri, First Division

September 5, 1931

McLaran & Garesche and E. H. Wayman, all of St. Louis, for appellant.

John L McNatt, of St. Louis, for respondent.

OPINION

GANTT P.

J. Action in the circuit court of St. Louis county to recover $ 20,000 for personal injuries. Judgment for defendant and plaintiff appealed. In the petition defendant is charged with several acts of negligence, but it was not alleged therein that plaintiff sued by a next friend duly appointed as such. For this reason defendant filed a special demurrer to the petition. It was overruled. Thereupon he answered by general denial with a plea of contributory negligence. Thus he waived the question presented by the demurrer. State ex rel. v Sullivan, 283 Mo. 546, loc. cit. 570, 224 S.W. 327; Hudson v. Cahoon, 193 Mo. 547, loc. cit. 556, 91 S.W. 72; Duff v. Duff, 156 Mo.App. 247, loc. cit. 258, 137 S.W. 909.

Defendant contends that the abstract is insufficient under the statute and for that reason moves the court to dismiss the appeal. Only one question is presented by plaintiff for review. We find that the abstract contains all the record relating to the question. This is sufficient under our rule 13 and section 1028, Rev. St. 1929. The motion is overruled.

At the beginning of the trial it appeared from questions of counsel for plaintiff and answers of counsel for defendant that the home office of the American Mutual Casualty Company was in St. Louis county; that it had policyholders in said county and that counsel for defendant was defending the case under contract with said company. Thereupon plaintiff stated that she desired to examine the members of the jury touching their connection, if any, with said company. Defendant objected, but tendered to plaintiff, in lieu of such examination, an alleged list of all members of said company eligible for jury service in said county. Plaintiff declined to accept said list and waive her right to examine the jury as to their qualifications. The court sustained the objection, to which ruling plaintiff duly excepted and saved her exceptions.

Plaintiff was entitled to have the members of the jury answer under oath as to their qualifications. The law on the question is well settled and the ruling was erroneous. Galber v Grossberg, 324 Mo. 742, 25 S.W.2d 96, loc. cit. 98; Smith v. Star Cab Co., 323 Mo. 441, 19 S.W.2d 467; Maurizi v. Mining Co., 321 Mo. 378, 11...