Turner v. Caldwell

• Citation: 349 S.W.2d 493
• Decision Date: 19 September 1961
• Docket Number: No. 30727,30727
• Parties: Manda TURNER, Plaintiff-Appellant, v. Mary L. CALDWELL and Lester H. Nickerson, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 493

349 S.W.2d 493

Manda TURNER, Plaintiff-Appellant, v. Mary L. CALDWELL and Lester H. Nickerson, Defendants-Respondents.

No. 30727.

St. Louis Court of Appeals, Missouri.

Sept. 19, 1961.

Rehearing Denied Oct. 17, 1961.

Hullverson, Richardson & Hullverson, Thomas Hullverson, St. Louis, Ralph W. Harris, Marion, for plaintiff-appellant.

Derrick & Holderle, Tyree C. Derrick, Gragg, Aubuchon & Walsh, Eugene P. Walsh, St. Louis, for respondents.

DOERNER, Commissioner.

On Saturday, May 9, 1959, about 9:30 P.M., a car driven by defendant Mary Lee Caldwell was struck from the rear by a car driven by defendant Lester H. Nickerson. The plaintiff, Manda Turner, a passenger in the car operated by Mrs. Caldwell, sought by this action to recover damages from both defendants for alleged personal injuries. The verdict was in favor of plaintiff and against both defendants for $6,000. Separate motions for a new trial were filed by the respective defendants, and sustained by the court, whereupon plaintiff appealed.

Because of the grounds upon which the motions for a new trial were sustained, and the issues presented on appeal, an exhaustive statement of the evidence is not necessary. It will be sufficient to say that at the time of the occurrence Mrs. Caldwell was driving westwardly in the center lane of Natural Bridge Road, in the City of St. Louis, and intended to purchase some hamburgers at a White Castle hamburger stand located on the southeast corner of Natural Bridge and Kingshighway. Plaintiff was sitting in the middle of the rear seat. A driveway into the hamburger stand was located 50 to 70 feet east of Kingshighway. Mrs. Caldwell's version of the occurrence was that as she approached the driveway, intending to turn to her left, she gradually slowed down, with her left turn signal blinker working; that she stopped for about one-half minute or more opposite the driveway, waiting for eastbound traffic to clear; and that the car she was driving was then forcibly struck from the rear by the car driven by Nickerson. She heard no screeching of brakes or squealing of tires until after the collision. Nickerson's version of the accident was that he was following the Caldwell car, in the center lane, at a distance of one or one and a half car lengths, with both traveling at a speed of 30 to 35 miles an hour; that as the cars neared Kingshighway the stop light at that intersection was green for east-west traffic; that the stop lights of the Caldwell car came on, and the car was brought to a sudden stop, causing the back end to go up a little; that he immediately applied his brakes, which screeched, and turned slightly to the right, but was unable to stop in time to avoid hitting the Caldwell car. He placed the point of impact as west of the driveway into the hamburger stand, and 'a few feet' east of Kingshighway. Plaintiff's own testimony was that just before the collision she was looking in her purse for money with which to purchase sandwiches; that '* * * all of a sudden we were just stopped and hit. Just seemed like it was all at the same time.' She didn't know whether or not Mrs. Caldwell had her blinker light on for a left turn; wasn't paying any attention to the speed Mrs. Caldwell was driving before the accident, except that they were moving along with the rest of the cars; and didn't know whether the car was stopped for some time before the impact occurred. Plaintiff's principal injury consisted of what one of her medical witnesses described as '* * * the type of injury termed whiplash.'

As stated by the trial court, the grounds upon which it sustained the defendants' motions for a new trial were twofold. First, that the fact that Mrs. Caldwell was covered by insurance was improperly injected into the case; and second, that the fact that Nickerson was not covered by insurance was improperly introduced into the case by that defendant. It is the plaintiff's contention on appeal that the court erred in granting a new trial as to both grounds. Defendant Caldwell does not attempt to justify the court's action on any other ground stated in her motion for a new trial. No brief has been filed on behalf of defendant Nickerson. Hence the only issues presented for our consideration are those raised by the plaintiff.

The evidence that Mrs. Caldwell was insured was brought into the case while the plaintiff was on the witness stand. Following her direct examination plaintiff was cross-examined by counsel for Mrs. Caldwell. During that cross-examination plaintiff was confronted with a written statement. She admitted that she had been interviewed by 'a man,' that he had written out the statement, and that she had signed it. She testified that she had told the man that she was too sick to give a statement, but he had insisted that he had to have one; that he wrote something down, but that she hadn't read the statement before she signed it. Counsel pressed her about variances and inconsistencies between her direct testimony and the written statement regarding the manner in which the accident had occurred. Plaintiff denied having made a minor part of the statement, but in general her position was that she didn't remember what she had told the interviewer. Upon the completion of defendant Caldwell's cross-examination, counsel for defendant Nickerson then undertook to cross-examine plaintiff, during the course of which the following occurred:

'Q. Do you know who this man was who took this statement? A. He said his name was Johnson, from Mary Lee Caldwell's insurance.

'Mr. Derrick: I object to that, if the court please, and move for a mistrial.'

The court overruled the motion for a mistrial, and out of the presence of the jury, and at the suggestion of counsel for plaintiff, cautioned the plaintiff that she was not to mention the subject of insurance again. No such reference was subsequently made. The statement was identified as defendant Caldwell's exhibit A, and was later introduced in evidence and passed among the jury.

Plaintiff does not seek to exculpate herself on the grounds that the question which elicited her answer was propounded by counsel for defendant Nickerson. She states it is immaterial whether the inquiry was made by counsel for defendant Nickerson or her own counsel. Nor does plaintiff offer the element of 'good faith,' sometimes mentioned as an extenuating circumstance to justify the exercise of the trial court's discretion. While plaintiff in her brief does not entirely abandon the contention that the trial court abused its discretion in granting defendants a new trial, she states that she has 'no heart' in arguing something which she denies ever existed. Briefly stated, plaintiff's position is that since her written statement had been used by defendant Caldwell during cross-examination for the purpose of impeachment, on redirect examination she was therefore entitled, as a matter of right, to identify the individual who had procured the statement and to state his interest and relationship even though the subject of insurance was thereby introduced in the case; and that having that right, as a matter of law, the court had no discretion to exercise, and his order granting a new trial is therefore reviewable on appeal.

The rule is well established that 'After a witness has been cross-examined, the party calling him may by redirect examination afford the witness opportunity to make full explanation of the matters made the subject of cross-examination so as to rebut the discrediting effect of his testimony on cross-examination and correct any wrong impression which may have been created. * * *' City of St. Louis v. Worthington, 331 Mo. 182, 52 S.W.2d 1003, 1009; Glasco Electric Co. v. Union Electric Light & Power Co., 332 Mo. 1079, 61 S.W.2d 955. On redirect examination a witness may give his reasons for his actions in order to refute unfavorable inferences from matters brought out on cross-examination. State v. Vickers, 209 Mo. 12, 106 S.W. 999. He may state the circumstances connected with the matter inquired about on cross-examination, although the fact brought out may be prejudicial to the other party. Brendel v. Union Electric Light & Power Co., Mo., 252 S.W. 635. Thus it has been held that a witness may explain his reason for signing a disputed statement, even though it would necessarily appear from the witness' explanation that the defendant had effected a settlement with him. Johnson v. Minihan, 355 Mo. 1208, 200 S.W.2d 334.

When a witness has been impeached on cross-examination by an inconsistent written statement, does his right to give his reasons for signing it, to state the circumstances under which it was signed, and 'to make full explanation of the matter,' include the right to inform the jury of the identity of the statement-taker, even though it will thereby be disclosed that the defendant has liability insurance? There are numerous decisions in Missouri in which testimony was adduced that the statement of the witness had been procured by a representative of the defendant's liability insurance carrier. Jones v. Missouri Freight Transit Corp., 225 Mo.App. 1076, 40 S.W.2d 465; Cervillo v. Manhattan Oil Co., 226 Mo.App. 1090, 49 S.W.2d 183; Zeller v. Wolff-Wilson Drug Co., Mo.App. 51 S.W.2d 881; Nixon v. Hill, 227 Mo.App. 312, 52 S.W.2d 208; Kaley v. Huntley, Mo.App., 88 S.W.2d 200; Vesper v. Ashton, 233 Mo.App. 204, 118 S.W.2d 84; Cheffer v. Eagle Discount Stamp Co., 348 Mo. 1023, 156 S.W.2d 591. In some of them (Jones, Cervillo and Nixon) mention is made of the right of the witness to show who obtained his statement. But in all of them, with the possible exception of Nixon, the ultimate decision is based on the premise that such evidence, while inadmissible, was injected under such circumstances that the determination of its nonprejudicial effect was within the scope of the trial court's discretion. Thus in some it was said that there was a lack of bad faith (Jones, Zeller and Vesper);...