Taylor v. Republic Automotive Parts, Inc.

• Decision Date: 26 August 1997
• Docket Number: No. WD,WD
• Citation: Taylor v. Republic Automotive Parts, Inc., 950 S.W.2d 318 (Mo. App. 1997)
• Parties: Luis D. TAYLOR, Respondent, v. REPUBLIC AUTOMOTIVE PARTS, INC., Appellant. 53108.
• Court: Missouri Court of Appeals

Page 318

950 S.W.2d 318

Luis D. TAYLOR, Respondent, v. REPUBLIC AUTOMOTIVE PARTS, INC., Appellant.

No. WD 53108.

Missouri Court of Appeals Western District.

Aug. 26, 1997.

D. Terrell Dempsey, Hannibal, for Respondent.

John G. Schultz, Kansas City, for Appellant.

Before ELLIS, P.J., and LOWENSTEIN and HOWARD, JJ.

HOWARD, Judge.

This appeal stems from a personal injury action brought by Plaintiff Luis Taylor ("Taylor") against Defendant Republic Auto Parts, Inc. ("Republic"). In his petition, Taylor alleged that in 1991 he sustained back injuries when his vehicle was struck by a pickup truck owned by Republic and driven by one of Republic's employees. A jury trial was held in the Circuit Court of Adair County. At trial, Republic's primary theory of defense was that Taylor's back injuries actually dated back to a 1988 football injury, and that Taylor was using the car accident as an excuse to pay for back surgery that he chose to forego in 1988. Nonetheless, the jury returned with a verdict in favor of Taylor, and awarded him compensatory damages of $39,593.38.

Republic raises five points on appeal. Four of the points relate to specific instances of allegedly improper conduct by Taylor's attorney during the trial. In the remaining point, Republic claims that the court erred in sustaining a hearsay objection to testimony by a police officer, Sgt. William Fay, regarding statements made to him by Taylor's father. We will address these points in the order they arose during the trial.

Point I: Improper Injection of Insurance During Voir Dire

Republic first contends that Taylor's attorney wrongfully injected insurance into the minds of the jury during voir dire, and that the trial court erred by denying Republic's subsequent request for a mistrial. This is what happened: Taylor's attorney began voir dire by asking if any of the venirepersons knew him. One venireperson, Richard McCandless, responded, "I'm an insurance adjuster for State Farm. I've dealt with you on a number of times." Later, Taylor's attorney asked if anyone had worked a job where they were required to investigate auto accidents. Venireperson McCandless again responded, "I have been an insurance adjuster for thirty-six years, but I haven't done any automobile work for twenty-two. It's all been fire and casualties." Shortly thereafter (Transcript p. 51), Taylor's attorney asked the "insurance question"--whether any member of the jury panel or their immediate family was an officer, director, employee, agent or stockholder of General Accident Insurance Company. Nobody responded. Sometime later in voir dire (Transcript pp. 70, 71) he asked if any of the venirepersons had experience reading x-rays. The following transpired:

VENIREPERSON: Richard McCandless. I have in the course of my work.

Q. You have looked at x-rays?

A. Yes.

Q. Anything about having done that in the course of your work that would give you special knowledge?

A. No.

Q. Do you think you might know more about x-rays than other folks?

A. Maybe some of the other folks, but that wouldn't make any difference.

Q. You could sit and listen fairly and impartially to the evidence and return a fair and impartial verdict?

A. Yes.

Q. Mr. McCandless, by the nature of what you do, do you think you might be more inclined or sympathetic towards the defense in this matter?

Before McCandless could respond to the last question, Republic's attorney objected that the question was an improper reference to insurance, and after some argument at a bench conference asked for a mistrial. The judge ruled, "I'm going to sustain an objection to the inquiry, but I'm going to deny the motion for a new trial. I don't think that under all the circumstances that that's going to emphasize the issue." The judge then instructed Taylor's attorney to make a different inquiry to another venireperson.

Republic assigns error to the last of the above quoted questions--"Mr. McCandless, by the nature of what you do, do you think you might be more inclined or sympathetic towards the defense in this matter? " Republic contends that it was an improper follow-up to the already asked "insurance question." It claims that Taylor's attorney asked the question while pointing his finger at the defense table, and that the question was asked "with a clear intent to interject insurance into the minds of the jurors." Republic, therefore, claims that the court's failure to grant a mistrial was reversible error.

Citing Ivy v. Hawk, 878 S.W.2d 442(Mo.1994), Republic suggests that the trial court had no discretion in deciding whether to grant a mistrial. We find no such authority in Ivy or anywhere else. In Ivy our Supreme Court addressed the issue of a plaintiff's right to ask the preliminary "insurance question" during voir dire--i.e., an inquiry as to whether any of the potential jurors or their families work for, or have an interest in, an insurance company involved with the lawsuit. The Court reaffirmed the Missouri rule that a plaintiff is entitled, as a matter of law, to ask the preliminary "insurance question" so long as the proper procedure is followed. The proper procedure includes "1) first getting the judge's approval of the proposed question out of the hearing of the jury panel, 2) asking only one 'insurance question,' and 3) not asking it first or last in a series of questions so as to avoid unduly highlighting the question to the jury panel." Ivy, 878 S.W.2d at 445. This procedure has developed as a balance between two competing concerns, both based on the premise that parties to a lawsuit have the right to a fair and impartial jury. On the one hand is the right of the parties to know if any of the potential jurors or their families have an interest in the outcome of the lawsuit. Id. at 444. On the other hand is the desire to avoid prejudicing the jury by emphasizing the existence of liability insurance coverage. Id. at 446.

Ivy thus stands for the proposition that "[a] trial court's denial of the right to ask the preliminary 'insurance question' is prejudicial as a matter of law." Id. at 446. However, contrary to Republic's assertion, Ivy does not mandate that a trial court grant a mistrial when a plaintiff steps beyond the boundaries of the "insurance question." In fact, the Court in Ivy specifically stated that follow-up questions to the preliminary "insurance question" are at the discretion of the trial court. Id. at 446 (citing Morris v. Duker, 414 S.W.2d 77 (Mo.1967)).

Having thus found that Ivy is inapplicable to this case, we refer to the more general law associated with the injection of insurance into a lawsuit. Aside from the rules regarding the asking of the "insurance question," it generally is improper to inject the issue of liability insurance into an action for damages, and such an injection of insurance can constitute reversible error, particularly if done so in bad faith. Annen v. Trump, 913 S.W.2d 16, 23 (Mo.App.W.D.1995); Wilson v. Kaufmann, 847 S.W.2d 840, 851 (Mo.App.E.D.1992). However, not every reference to insurance constitutes reversible error or requires the discharge of a jury. Id. The trial judge is in a much better position than the appellate court to determine whether a reference to insurance was motivated by good or bad faith. Wilson, 847 S.W.2d at 851. The trial court also is better able to judge the effect on the jury. For these reasons, the decision of whether to grant a mistrial when such a situation arises is one that is left to the sound discretion of the trial court, and only where a manifest abuse of discretion occurs will the appellate court disturb this decision. Id.

In this case, after McCandless twice had identified himself as an insurance adjuster, Taylor's attorney asked the question, "Mr. McCandless, by the nature of what you do, do you think you might be more inclined or sympathetic towards the defense in this matter? " We find no manifest abuse of discretion by the trial court in refusing to grant a mistrial. Some time had passed (twenty pages of transcript) between the questions, and no specific mention of insurance was made. Although Republic claims that Taylor's attorney pointed to the defense table, it is impossible for us to tell from the record the context or effect of such an action. These are all factors that the trial judge is much better able to evaluate than us.

Under the circumstances we cannot say the trial court's refusal to grant a mistrial constituted prejudicial error. Point I is denied.

Point II: Failure to Grant a Continuance

The next two points stem from issues that originated during Republic's cross-examination of Sgt. William Robert Fay, the police officer who responded to the accident scene. Sometime after the accident, Sgt. Fay had gone to Taylor's home either to get insurance information or to return something. Taylor was not there, but Taylor's father, Tony Salazar, was home and spoke to Sgt. Fay. Republic's attorney sought to have Sgt. Fay testify about the conversation he had with Mr. Salazar. More specifically, Republic wanted Sgt. Fay to testify that Mr. Salazar had told him that Taylor was getting treatment for a previous back injury. Taylor's attorney objected that the testimony would be hearsay, and the court sustained the objection.

After some argument, Republic's attorney suggested that he could call Sgt. Fay as a rebuttal witness and question him about the conversation with Salazar if Salazar was to testify and deny making the statements to Sgt. Fay about Taylor's prior back injury. The judge responded, "Well, that may not be relevant to impeach that statement or this witness, but we can consider it if it comes up...."

When the examination of Sgt. Fay concluded, the judge ordered a brief recess. During the recess, Mr. Salazar, who had been present in the courtroom, left the courthouse. His wife, Anita Salazar, remained, however, and was called as Taylor's next witness when the court reconvened. During cross-examination,...