Wack v. Schoenberg Manufacturing Co.

• Decision Date: 28 September 1932
• Docket Number: No. 30366.,30366.
• Parties: PAUL WACK v. F.E. SCHOENBERG MANUFACTURING COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

53 S.W.2d 28

PAUL WACK v. F.E. SCHOENBERG MANUFACTURING COMPANY, a Corporation, Appellant.

No. 30366.

Supreme Court of Missouri, Division Two.

September 28, 1932.

Appeal from Circuit Court of City of St. Louis. — Hon. James F. Green, Judge.

AFFIRMED.

Wayne Ely and Tom Ely, Jr., for appellant.

(1) The court erred in overruling defendant's motion to discharge the jury and declare a mistrial because of improper questions and remarks by plaintiff's counsel concerning insurance during the voir dire examination of the jury, over the objection and exception of the defendant at the time. (a) On page 12 counsel for plaintiff pursued a line of questioning which was calculated to get before the jury the fact that the Fidelity & Casualty Company of New York was interested in the outcome of the case by reason of the fact it would be held liable for the judgment. The court admonished counsel for plaintiff not to bring insurance in the case, but counsel for plaintiff persisted in getting the idea to the jury that the defendant was insured. This persistent effort to prejudice the minds of the jury, apparently made not in good faith for the purpose of determining whether or not the jurors were connected with the insurance company, appears as follows: Maurizi v. Western Coal & Mining Co., 11 S.W. (2d) 269; Bruce v. East Side Packing Co., 6 S.W. (2d) 986; Nolen v. Halpen-Dwyer Const. Co., 29 S.W. (2d) 215. Decisions from other states: Watson v. Adams, 65 So. 528; Clark-Pratt Cotton Mills Co., 77 So. 995; Edwards v. Ernest, 89 So. 729; Standridge v. Martin, 84 So. 266; Tom Reed Gold Mines Co. v. Morrison, 224 Pac. 822; Cooper v. Kelley, 198 S.W. 94; Williams-Nichols Dry Goods Co. v. Wallace, 219 S.W. 732; Pekin Stave & Manufacturing Co. v. Ramey, 147 S.W. 83; Williams v. Cantwell, 170 S.W. 250; Murphy v. Shaffer et al. (Cal.), 208 Pac. 1003; M.H. Boals Planing Co. v. Railway Co., 211 Ill. App. 125; Foglio v. City of Chicago, 229 Ill. App. 472; Emery Dry Goods Co. v. De Hart, 130 Ill. App. 244; Mithen v. Jeffery, 102 N.E. 778; Rudd v. Jackson, 213 N.W. 428; Ryan v. Trinkle, 200 N.W. 318; Sawyer v. Arnold Shoe Co., 38 Atl. 333; International Co. v. Clark, 127 Atl. 647; Trembly v. Harnden, 38 N.E. 972; O'Brien v. Hencken & Willenbrook Co., 158 N.Y. Supp. 200; Ross v. Williamette Valley Tr. Co., 248 Pac. 1088; Lenahan v. Pittston Coal Mining Co., 70 Atl. 884; Pewitt-Spurr Co. v. Woodall, 90 S.W. 623; Lange v. Lawrence, 259 S.W. 261; Spinney's Admx. v. Hooker & Son, 102 Atl. 53; Rinehardt v. Dennis, 120 S.W. 269; Adams v. Cline Ice Cream Co., 131 S.E. 867; Stewart v. Brune, 179 Fed. 350; James Stewart & Co. v. Newby, 266 Fed. 287. (2) The court erred in admitting incompetent, irrelevant and immaterial testimony on the part of the plaintiff, over the objection and exception of the defendant at the time. (a) It was error to permit Barth Staehlin, elevator inspector, to testify concerning the condition of the elevator gate at the time of the accident, when he had not examined it since May 3, 1926, and when the inspection records showed that a certificate of inspection had been issued on July 31, 1926, the accident occurring August 16, 1926. Such testimony being too remote to be worthy of consideration in a close case. Newcomb v. Railway, 69 S.W. 348; 2 Jones on Evidence (2 Ed.) sec. 588; Bishop v. Copp, 114 Atl. 682. (b) The introduction in evidence of sections 22, 23, ordinance 34950 of the city of St. Louis, dealing with passenger elevators and gate locks, was irrelevant and prejudicial because the elevator in question was a freight elevator; it was not shown that the gate interlock would strengthen the gate, and because section 39 of the ordinance did not require compliance with the terms of the said sections for eighteen months after the passage of the ordinance and the accident happened four months after the ordinance took effect. It was prejudicial error for the court to admit these sections subject to objection. Hannan, Hickey Bros. v. Railroad Co., 247 S.W. 440; Seafield v. Bohne, 69 S.W. 1051; Shaffer v. Derring, 272 S.W. 1050. (c) Where there is a close question of fact involved concerning defendant's liability, and incompetent evidence is admitted, the admission of such evidence is reversible error. Young v. Hoover, 233 S.W. 501; Hatch v. Bayless, 146 S.W. 842; Sinclair v. Railroad Co., 253 S.W. 380. (3) The court erred in overruling defendant's motion to strike out immaterial, incompetent and irrelevant testimony on behalf of the plaintiff, over the objection and exception of the defendant at the time. (a) It was error for the court to refuse to strike out the question and answer of Dr. Leo Will, pertaining to the possibility of the injury to plaintiff causing pain in the head and vertigo and dizziness. This was prejudicial error for the doctor was permitted to speculate upon an ultimate fact, not within reasonable bounds. Mahaney v. Railways Co., 228 S.W. 825; Cardinale v. Kemp, 274 S.W. 448; O'Leary v. Scullin Steel Co., 260 S.W. 55; Mahaney v. Railways Co., 228 S.W. 821; Deiner v. Sutermeister, 178 S.W. 761. (4) The court erred in permitting the plaintiff's witness, Dr. Pernoud, to testify concerning his opinion of plaintiff's injuries when such testimony consisted of basing one opinion upon another opinion, all of which was over the objection and exception of the defendant at the time. (5) The court erred in refusing and overruling defendant's Instruction B in the nature of a demurrer at the close of the whole case, over the objection and exception of the defendant at the time. State ex rel. Boeving v. Cox, 276 S.W. 869, 310 Mo. 367; Johnson v. Terminal Railroad, 8 S.W. (2d) 893; Penney v. Southeastern Express Co., 35 S.W. (2d) 941; Howard v. Scarritt Estate Co., 184 S.W. 1145; Carr v. St. Joseph, 225 S.W. 922; Clark v. Wheelock, 293 S.W. 456; Jones v. Pioneer Cooperage Co., 114 S.W. 94. (a) The condition of the elevator gate was such that in the usual course of events, without an intervening, unusual happening, the injury to plaintiff would not have been the natural and probable consequence of its condition, so that the gate's condition was not the proximate cause of the injury. Wendall v. Railway Co., 75 S.W. 689; State ex rel. Boeving v. Cox, 276 S.W. 869; Van Bibber v. Swift & Co., 228 S.W. 69, 286 Mo. 317; Warner v. Railway Company, 77 S.W. 69, 178 Mo. 133; 29 Cyc. 492; Kappes v. Brown Shoe Co., 90 S.W. 1163. (b) The law is that when an act of negligence simply made possible another act of negligence which was efficient in producing the damage, the latter is to be treated as the sole proximate cause. Kappes v. Brown Shoe Co., 90 S.W. 1163; Butz v. Cavanaugh, 38 S.W. 1104, 137 Mo. 503; Saxton v. Railroad, 72 S.W. 717; Cox v. Bondurant, 7 S.W. (2d) 403. (6) The court erred in giving instruction No. 1, on behalf of the plaintiff over defendant's objection and exception at the time. Sabol v. St. Louis Cooperage Co., 282 S.W. 431; Scheurer v. Banner Rubber Co., 126 S.W. 1037; Gibler v. Railroad Assn., 101 S.W. 41; Smith v. Sedalia, 53 S.W. 911; Berry v. Majestic Milling Co., 304 Mo. 292, 263 S.W. 411; Stagg v. Edward Western Tea & Spice Co., 169 Mo. 489, 69 S.W. 391; Rigley v. Railway Co. (Mo. App.), 204 S.W. 737. (7) The court erred in refusing defendant's instruction C. Defendant was entitled to have its theory of defense submitted to the jury. Root v. Railroad Co., 237 Mo. 640, 141 S.W. 614.

Everett Hullverson and Staunton E. Boudreau for respondent.

(1) There was no error committed by the court with reference to the admission of the testimony of Barth Staehlin as to the condition of the elevator and gate on May 3, 1926. The question of error here arises on the court's overruling appellant's motion to strike all the testimony of this witness for the reason that there was no showing as to the condition of the elevator gate on July 31, 1926. This was not an issue in the case, the issue being the condition on August 18, 1926, and the evidence showed that the elevator gate was in a dangerous condition on August 18th; that it was in a dangerous condition May 3, 1926; that the condition continued from May 3, 1926, to August 18, 1926, and particularly that the condition existed to July 31, 1926. The evidence of this witness as to the condition of the elevator and gate on May 3, 1926, was not too remote, but had clear probative value, particularly when supported by the positive proof of a continuance of that condition up to the time of the accident in question. Newcomb v. Railroad Co., 69 S.W. 348; Bishop v. Copp, 114 Atl. 685. The court did not err in not ruling upon defendant's motion, appearing on pages 62 and 63 of appellant's abstract, to strike out the ordinances read in evidence. If the court had erred, no proper objection or exception was made by defendant. (2) The court did not err in overruling defendant's demurrer to the evidence at the close of all the evidence, for there was ample evidence in the record upon which to submit the cause to the jury. Torrance v. Pryor, 210 S.W. 433; Hoelker v. American Press, 296 S.W. 1008; Kirkpatrick v. American Creosoting Co., 27 S.W. (2d) 1000; Moore v. James Black Masonry & Const. Co., 27 S.W. (2d) 767; Loughlin v. Marr-Bridger Grocer Co., 10 S.W. (2d) 77.

WHITE, P.J.

The appeal is from a judgment recovered by the plaintiff for injuries incurred in falling into an elevator shaft while employed by defendant. The petition alleged that defendant manufactured articles of wood and employed plaintiff at its plant in the city of St. Louis. That August 16, 1926, while plaintiff was so employed "and engaged in his duties," another employee, McClelland, who was habitually negligent and a practical joker, as the defendant knew or by the exercise of ordinary care could have known, jumped on plaintiff's back causing him to fall against the gate guarding the elevator shaft, crash through the gate and fall into the shaft, thereby incurring serious injury. It is alleged that the...