Tucker v. Kollias

• Decision Date: 07 May 1929
• Citation: 16 S.W.2d 649,223 Mo.App. 367
• Parties: EDWARD F. TUCKER, RESPONDENT, v. STEVEN KOLLIAS, APPELLANT. [*]
• Court: Missouri Court of Appeals

16 S.W.2d 649

223 Mo.App. 367

EDWARD F. TUCKER, RESPONDENT, v. STEVEN KOLLIAS, APPELLANT. ^[*]

Court of Appeals of Missouri, St. Louis

May 7, 1929

Appeal from the Circuit Court of the City of St. Louis.--Hon. M Hartmann, Judge.

AFFIRMED.

Judgment affirmed.

Jones Hocker, Sullivan & Angert and W. A. McCaleb for appellant.

(1) The rule permitting counsel to question the jury on the voir dire as to their interest in an insurance company is based upon the theory that a juryman who is interested in or related to one of the parties to the suit cannot act as a fair and impartial juror. The ultimate test of the right to inquire of the jury as to such matter is whether the "inquiry is made in good faith." The facts of this case, which show that respondent's counsel was informed by appellant's counsel that none of the jury were interested in or connected with the Southern Surety Company, removed the reason for the inquiry and fails to establish that the inquiry was not made in good faith. Plannett v. McFall, 284 S.W. 850. (2) Assuming that the evidence in this case made a case for the jury, the defendant is liable for only such injuries as plaintiff suffered as a proximate result of his negligence. Plaintiff had the burden of proving the nature and extent of his injuries, and, as his evidence showed that he did not have a fractured patella, the court erred in overruling defendant's motion to strike the testimony relating to that injury from the record. Miller v. Wilson, 288 S.W. 999; Moore v. St. Louis Transit Co., 226 Mo 689; Harker v. St. Louis Merchants Bridge Term. Co., 187 Mo. 575; North Jellico Coal Co. v. Stewart, 191 S.W. 451; Warner v. St. Louis & Meramec R. R. Co., 178 Mo. 125; Johnson v. City of Galva, 147 N.E. 453. (3) The court erred in permitting medical experts to testify that the fractured patella "could have resulted from the collision" when, under the testimony, the fractured patella was not present one day after the accident and the physician who treated plaintiff for several months afterward did not find the fracture. (4) The defendant was entitled to a continuance upon the amendment being made increasing the demand for medical expenses. Pence v. Gaffert's Administrator. (a) There was not sufficient evidence to warrant a finding that the condition of the patella, which necessitated the increased medical expense, was the result of the accident. (b) The amendment, if permitted at all, should have been allowed only upon terms by which the defendant would have been allowed to produce proof of the reasonableness or unreasonableness of the charges for medical aid.

Strubinger & Strubinger for respondent.

(1) (a) Since counsel for defendant admitted that the Southern Surety Company was interested in the defense of this suit, it was proper for counsel for plaintiff, on voir dire examination of the jury, to inquire as to the interest of the prospective jurors in such company. Malone v. Small, 291 S.W. 163; Floun v. Birger, 296 S.W. 203; Plannett v. McFall, 284 S.W. 850. (b) Since it appeared that the Southern Surety Company was interested in this case, it will be presumed that the inquiry of the jury panel, as to financial interest in that company, was made in good faith. Steinkamp v. F. B. Chamberlain, 294 S.W. 762. (2) The court did not err in overruling defendant's motion to strike from the record testimony relating to fractured patella. (a) Because, under the conflicting evidence, the nature, character and extent of the injury to plaintiff's knee was a jury question. Baxter v. St. Louis Transit Co., 78 S.W. 70, 103 Mo.App. 597; Miller v. Walsh Fire Clay Products Co., 282 S.W. 141; Barree v. Cape Girardeau, 112 S.W. 724; Sang v. City of St. Louis, 171 S.W. 347; Dunphy v. St. Joseph Stockyards Co., 95 S.W. 301, 118 Mo.App. 506; Herod v. St. Louis-San Francisco Ry. Co., 299 S.W. 74; Cobb v. American Car & Foundry Co., 270 S.W. 398. (b) The plaintiff was not conclusively bound by the adverse testimony of some of his witnesses, since there were other facts in evidence from which the jury could properly draw a contrary inference. Hoffman v. Lime Co., 296 S.W. 764; Squire v. Realty Co., 288 S.W. 988. (c) The jury had a right to discredit that portion of the medical testimony which was unfavorable to the plaintiff, and to believe the medical evidence favorable to the plaintiff. Zlotnikoff v. Wells, 295 S.W. 129; Gould v. C. B. & Q. Ry. Co., 290 S.W. 135, 315 Mo. 713; Busby v. Southwestern Bell Tel. Co., 287 S.W. 434; Sang v. City of St. Louis, 171 S.W. 347. (3) The court did not err in permitting medical experts to testify that the fractured patella could have resulted from the collision. (a) Because this evidence was not objected to. Herrin v. Stroh Bros. Delivery Co., 263 S.W. 871; Gulledge v. Davis, 264 S.W. 441. (b) Because it was substantial evidence that the patella was fractured when struck by defendant's automobile. Standefer v. Fleming, 298 S.W. 134; Kuhn v. City of St. Joseph, 234 S.W. 353; Crowley v. American Car & Foundry Co., 279 S.W. 212. (c) Because the evidence showed that plaintiff was in good health prior to the injury, and that his knee had not been injured prior to the collision, and since there was no evidence whatsoever to indicate the fracture was due to any other cause, such evidence was admissible. Nordmann v. Bakery Co., 298 S.W. 1037; Morris v. Union Depot Bridge & Tr. R. Co., 8 S.W.2d 11. (4) The court properly permitted plaintiff to amend his petition to conform with the evidence respecting medical expenses, because such evidence was not objected to by the defendant. Reidle et al. v. Scott et al., 296 S.W. 262; Ehrlich v. Mittelberg, 299 Mo. 284, 252 S.W. 671. (5) Appellant does not assign as error the excessiveness of the verdict, and since the alleged errors it does assign could only have a tendency to increase the amount of damages awarded by the jury, it has failed to show that said alleged errors are prejudicial under the record in this case. Whitehead v. Koberman, 299 S.W. 177; Merten v. Coffin Co., 232 S.W. 201; Barker v. Lumber Co., 217 S.W. 585; Baxter v. St. Louis Transit Co., 78 S.W. 70; Rudy v. Autenrieth, 287 S.W. 850; Malone v. Small, 291 S.W. 163.

BECKER, J. Haid, P. J., and Nipper, J., concur.

OPINION

BECKER, J.

Plaintiff, in his action for damages for personal injuries alleged to have been sustained as a result of being struck by an automobile driven by defendant, obtained judgment in the sum of $ 3500, from which defendant in due course appeals.

Concededly plaintiff made out a case for the jury, and upon the assignments of error presented on this appeal it is a sufficient statement of facts to note that on November 28, 1926, near the intersection of Vandeventer avenue with Page boulevard, in the city of St. Louis, plaintiff was struck and injured by an automobile owned and driven by defendant.

The first assignment of error is that the trial court erred in refusing to sustain defendant's motion to discharge the jury from the further consideration of the case when, on the voir dire examination of the jury, plaintiff's counsel asked the jury, over defendant's objection, if any member on the panel was interested financially in the Southern Surety Company. In support of this assignment of error it is argued that the rule permitting counsel to question the jury on the voir dire as to their possible interest in or connection with an insurance company is based upon the theory that a juryman who is interested in, or related to one of the parties to the suit, cannot act as a fair and impartial juror, and that the ultimate test of the right to interrogate the jury on such matter is whether the inquiry is made in good faith. Therefore, since the record before us discloses that during the examination of the jury on the voir dire, out of the hearing of the jury, plaintiff's attorney was informed by defendant's counsel that none of the panel of the jury were interested in or connected with the Southern Surety Company; such statement by counsel for defendant removed any possible reason for the inquiry, and it necessarily follows that the said inquiry on the part of plaintiff's counsel was not made in good faith.

Does however, the fact that both the general and special attorney of the Southern Surety Company who participated in the trial of the cause, before the question objected to was asked, stated that none of the jurors were financially interested, as stockholders or otherwise in the Southern Surety Company, lead to the conclusion that the question was not asked in good faith, but solely for the purpose of having the question of insurance brought to the attention of the jurors in the hope that they would bear it in mind that the defendant was insured and make an award of damages for plaintiff solely on account of the fact that some one other than defendant would have to pay? Let us examine the colloquy which took place, out of the hearing of the jury, on the question as to whether or not plaintiff's counsel should be permitted to interrogate the panel as to whether or not any of them were employed by or held stock in the Southern Surety Company. This colloquy shows that Mr. Welker (conceded in appellant's brief as being the special attorney for the said insurance company), when asked if the Southern Surety Company was defending the case, answered that he did not know, yet he stated that none of the jurors or their families were stockholders, but admitted at the same time that he was not conversant with the names of all of the stockholders of the company. This statement of Mr. Welker was supplemented by a statement of Mr. Smith, one of the attorneys for defendant, to the effect that, "yes, I am their attorney and no members of this panel or their families are in any way connected...