Steinman v. Brownfield

• Decision Date: 21 June 1929
• Docket Number: No. 20693.,20693.
• Parties: STEINMAN v. BROWNFIELD.
• Court: Missouri Court of Appeals

18 S.W.2d 528

STEINMAN v. BROWNFIELD.

No. 20693.

St. Louis Court of Appeals. Missouri.

June 21, 1929.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by Mildred Steinman against Walter Brownfield. Judgment for plaintiff, and defendant appeals. Affirmed.

Wilbur C. Schwartz, of St. Louis, for appellant.

Foristel, Mudd, Blair & Habenicht, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff when struck by an automobile operated by defendant, at or near the intersection of Broadway and Poplar street, in the city of St. Louis, on May 25, 1927. Upon a trial to a jury, a verdict was returned in favor of plaintiff and against defendant, in the sum of $10,000. A remittitur of $4,000 was required by the court as the condition for the refusal of a new trial; and, from the judgment rendered for plaintiff for $6,000, defendant has duly appealed.

In her petition, plaintiff set up a number of specifications of primary negligence, but went to the jury solely upon the issue of failure to warn. The answer of defendant was a general denial, coupled with a plea of contributory negligence; and the reply was in conventional form.

The evidence disclosed that plaintiff was a passenger on a south-bound Broadway street car, and that the car was stopped at Poplar street to discharge passengers. As it came to a standstill, a large covered truck, which had been following the car as it moved southwardly, was brought to a stop a foot or two to the rear of the street car, with its left wheels upon the west rail of the car track. From the car track to the west curb of Broadway was a distance of 17 feet, so that there was but barely space enough for an automobile to pass between the truck and the curb. Plaintiff, followed by several other passengers, left the street car by the rear door, and proceeded in a direct course towards the sidewalk; and, when she had gone a step or so beyond the truck, which had remained stationary all the while, the auto mobile driven by defendant came rapidly around tthe side of the truck, striking her and throwing her to the street, and inflicting the injuries for which she has sued. Plaintiff testified that she looked to the north for traffic as she was in the act of alighting from the street car, and again as she passed the truck, but that she did not see defendant's automobile on either occasion. Defendant testified in his deposition, and admitted on the stand, that he gave no warning of his approach.

At the outset of the case, we are faced with the necessity of determining whether any of the exceptions saved by counsel for defendant throughout the course of the trial have been properly preserved for appellate review. This question arises for the reason that, while appellant's abstract of the record shows that exception was duly taken to the overruling of the motion for a new trial, respondent has filed an additional abstract which purports to disclose that no such exception was in fact saved. Such additional abstract was not delivered to the appellant, however, until only ten days before the cause was set for hearing in this court, although our Rule 12 provides that additional abstracts must be served at least fifteen days before the date of the hearing. On account of the delay in the time of service, appellant's counsel has filed a motion to strike out respondent's additional abstract; and, in view of the definite provision of Rule 12, upon which counsel chooses to rely, there is no recourse left to us but to sustain the motion. The effect of this ruling is to leave the case for review upon the merits; and to the several points assigned as error we shall now direct our attention.

Defendant's first three assignments of error all go to the injection into the case of the question of liability insurance, first, during the opening statement of plaintiff's counsel, second, during the direct examination of plaintiff, and, third, during the cross-examination of defendant. The entire situation presents but a single point for review, however, so that a determination of the good faith of plaintiff's counsel in referring to the matter of insurance, and the application of such issue to any competent purpose in the case, will serve to answer all complaints of defendant to this particular feature of the record.

The fact was uncontradicted that, after plaintiff was injured, defendant placed her in his automobile, and conveyed her to the City Hospital for examination and treatment. In the course of his opening statement to the jury, plaintiff's counsel mentioned this fact, and in the same connection told the jury that on the way to the hospital defendant said to her, "It is unfortunate, but I was in a hurry to get these fish to my restaurant, but I am covered by insurance, and I think you will be properly taken care of." Counsel for defendant promptly objected to the reference to insurance, and moved the discharge of the jury, and now seeks to predicate error upon the adverse ruling of the court.

We find nothing about the situation to indicate bad faith on the part of plaintiff's counsel, and, in the absence of such showing, good faith must be presumed. Beyond this, however, there were a number of circumstances in the case which provide the basis for the belief that counsel was moved by good faith in making the statement that he did. It is a fact of great significance that plaintiff herself positively testified to substantially the very statement made by her counsel, so that it may not be said that the latter was deliberately stating something to the jury which he knew he would be unable to prove. Furthermore, when defendant was on the stand, the most that he was willing to say by way of denial, either on direct or on cross-examination, was that he did not remember having told the plaintiff that he carried insurance, and in fact he admitted that he did not know whether he had insurance or not. We have no doubt, therefore, that the requirement as to good faith was sufficiently met, so that the decisive question left for our determination is whether such evidence was competent for any purpose in the case.

Generally speaking, the cases hold that it is competent to show that there is liability insurance where such fact goes to prove any material issue properly in the case (Paepke v. Stadelman [Mo. App.] 300 S. W. 845; Boten v. Sheffield Ice Co., 180 Mo. App. 96, 166 S. W. 883; Hill v. Jackson [Mo. App.] 272 S. W. 105); and particularly that plaintiff has a right to prove any fact which tends to render reasonable, or to corroborate, an admission of liability by defendant, even though the making of such proof may incidentally disclose that the latter is protected by a policy of insurance (Garvey v. Ladd [Mo. App.] 266 S. W. 727; Edwards v. Smith [Mo. App.] 286 S. W. 428).

Now in this instance the statement of defendant that he was covered by insurance, and that he thought that plaintiff would be properly taken care of, was an implied, if not an actual, admission of liability for the accident, and thus competent in evidence as an admission against interest, as we have recently had occasion to hold under almost identical circumstances. Wulze v. Aquardo (Mo. App.) 6 S.W.(2d) 1017. Consequently, upon the authority of this decision, and of the cases supra, we rule that the opening statement of plaintiff's counsel as to what he expected to prove, followed by the proof itself, was proper; and for the same reason that there was no error in permitting the defendant to be cross-examined in regard to the same matter.

The next suggestion of error has to do with the direct examination of Dr. H. R. Barton, a...