White v. Plaza Express Co.
| Decision Date | 26 June 1945 |
| Docket Number | No. 6461.,6461. |
| Citation | 188 S.W.2d 847 |
| Parties | WHITE v. PLAZA EXPRESS CO. et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Dunklin County; James V. Billings, Judge.
"Not to be published in the State Reports."
Action by James Timothy White, by James White, guardian, against Plaza Express Company, Carl Collier and Alice Louise Teague, for injuries sustained in automobile collision. From a judgment in favor of the plaintiff against defendant Alice Louise Teague, the defendant Alice Louise Teague alone appeals.
Affirmed.
Max B. Reid and Reid & Evrard, all of Blytheville, Ark., and John M. Dalton and Arthur U. Goodman, Jr., both of Kennett, for appellant.
Hal H. McHaney, of Kennett, and Ward & Reeves, of Caruthersville, for respondent.
This is a companion case to White v. Teague, Mo.Sup., 182 S.W.2d 288. A terrible collision occurred in the nighttime at the intersection of U. S. Highway 61 and State Highway U, near Caruthersville, Missouri, on September 20, 1941. Two of the women in the Chevrolet automobile, going west at the intersection at that time, were killed. The record in this case does not disclose all the persons in said Chevrolet automobile who suffered injuries. It was then occupied by the driver, Alice Louise Teague, the appellant, her mother and father, James White, and wife, and respondent.
Among others, a small child, named James Timothy White (the respondent here), was injured and a suit was filed by his father, James White, as guardian, against Plaza Express Company, Carl Collier and Alice Louise Teague. The latter, since that trial, is said to have intermarried with one Key, although Alice Louise Teague is still in the record, under the same name, as appellant.
The jury in this case found for defendants, Plaza Express Company and Carl Collier, and found for plaintiff against Alice Louise Teague (now sole appellant) in the sum of $6,000.
The law suit was filed in Pemiscot County and went to Dunklin County on change of venue. It was tried on an amended petition, the separate first amended answer of defendants Plaza Express Company and Carl Collier, and upon the separate answer of defendant Alice Louise Teague. At the close of plaintiff's case, and at the close of all the evidence, all defendants asked peremptory instructions, which were refused by the trial court. Thereupon, defendant Plaza Express Company refused to introduce further evidence, and stood on its demurrer to plaintiff's evidence.
There is little dispute as to the facts. Defendant Carl Collier was in the employ of defendant Plaza Express Company, and was driving its truck and a heavy trailer over U. S. Highway 61, between Memphis, Tenn., and St. Louis. As he approached the intersection of said U. S. Highway 61 with said State Highway U, he did so under such circumstances that our Supreme Court, in the case of White v. Teague, before mentioned, held that he and the Plaza Express Company were guilty of humanitarian negligence, as well as negligence on the part of Alice Louise Teague, as found by nine jurors in that case. In the present case, nine jurors found for defendants Collier and the Plaza Express Company, and found solely against appellant Alice Louise Teague.
Appellant Teague was driving a Chevrolet two-door sedan west along State Highway U, with the other occupants of said automobile, coming from a point in Tennessee to Kennett, Mo., when such automobile ran into the side of the trailer, the truck of which was driven by defendant Carl Collier on said Highway 61. According to the evidence, the Chevrolet sedan was going at a speed of about 50 miles per hour, and the truck and trailer, about 35 miles per hour at the time of such collision. It is a fair conclusion from the evidence and the surrounding circumstances, that neither appellant Alice Louise Teague nor any other occupant of the automobile she was operating had the remotest idea of the presence of U. S. Highway 61, let alone a moving truck and trailer over it. This is true, notwithstanding the evidence that, at some distance from the intersection, there was a sign that an intersection was being approached, and nearer to the intersection was a sign that U. S. Highway 61 was being approached, and almost at such intersection there was a stop sign. All of this was on State Highway U. Those signals, or some of them, have since been illuminated, but were simply printed or painted at that time, and visible when the headlights showed them up. On State Highway U was a wye, which began at some distance from and east of U. S. Highway 61. One branch connected with U. S. Highway 61 for vehicles going north, and a like connection existed for those going south, as well as both being used for turning into State Highway U from U. S. Highway 61.
Appellant testified that she did not know that there was a highway there and did not notice the warning signs, as she approached U. S. Highway 61, and did not reduce the speed of her automobile at the intersection and did not even know there was a highway there until the collision occurred. There is abundant evidence tending to show the negligence of appellant Alice Louise Teague, and, as respondent was badly injured as a direct result of such negligence, plaintiff was entitled to recover against appellant Teague, if the case was otherwise properly tried. This we will next consider.
Alice Louise Teague had 35 grounds for new trial in her motion for new trial in the court below. She comes here with 10 assignments of error. So many of these are so similar that we will consider only four or five grounds, alleged as a basis for a new trial, thinking we can sufficiently cover the assignments of error by considering such grounds. These include questions allegedly asked of the jury on its voir dire; refusal of some of appellant's instructions; the giving of instructions for defendants Plaza Express Company and Carl Collier, which had an improper effect on the defense of Alice Louise Teague and refusal of said defendant's instruction 3T; of these in their order.
The chief objection, we recall, was asking the prospective jurors on their voir dire whether individuals thereof had any stock in the Tennessee Automobile Insurance Company, or were employed by that company or had relatives in such employment. Appellant has cited ten cases, said to hold that the asking of such a question is improper. We have examined each and every one of such decisions. Gore v. Brockman, 138 Mo.App. 231, 119 S.W. 1082; Trent v. Lechtman Printing Co., 141 Mo.App. 437, 126 S.W. 238; Pettit v. Goetz Sales Co., 221 Mo.App. 966, 281 S.W. 973, and Chambers v. Kennedy, Mo.Sup., 274 S.W. 726, seem to have turned on the good faith of the attorney asking questions of the jury relating to insurance interests on the jurors voir dire, of which good faith there was not even an assertion. In Hannah v. Butts, 330 Mo. 876, 51 S.W.2d 4, the Supreme Court, by Ragland, J., reversed a judgment largely because such good faith was not shown. In Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673, the defendant was asked directly if he had insurance, and the judgment was reversed. In Whitman v. Carver, 337 Mo. 1247, 88 S.W.2d 885, the Supreme Court again frowned on the showing of the presence of insurance by improper cross examination of defendant. The same situation existed in Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463. In Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961, there was improper reference to insurance in the argument to the jury. In Melvin v. Cater, 221 Mo.App. 1212, 299 S.W. 103, the judgment was reversed for improperly charging the presence of insurance in argument to the jury.
The writer of this opinion has personally not been in favor of even asking a juror this question on his voir dire. In Hannah v. Butts, supra, 51 S.W.2d loc. cit. 7, Judge Ragland well stated what has always been the view of the writer:
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