Whitman v. Carver

• Decision Date: 18 December 1935
• Parties: Helene Whitman v. William Carver, Appellant
• Court: Missouri Supreme Court

88 S.W.2d 885

337 Mo. 1247

Helene Whitman v. William Carver, Appellant

Supreme Court of Missouri

December 18, 1935

Rehearing Denied December 18, 1935.

Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge.

Reversed and remanded.

Taylor Chasnoff & Willson and James V. Frank for appellant.

(1) The trial court should have sustained appellant's motion to discharge the jury because of the prejudicial statement made by respondent at the beginning of the trial to the effect that appellant had said he was "fully covered by insurance." Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673; Crapson v. United Chautauqua Co., 27 S.W.2d 722; Robinson v. McVay, 44 S.W.2d 238; Hannah v. Butts, 330 Mo. 876, 51 S.W.2d 4; Hill v. Jackson, 272 S.W. 105; Annotation, 56 A. L. R. 1418; Annotation, 74 A. L. R. 849. (2) The admission in evidence by the trial court of the statement attributed to appellant by respondent that "he was fully covered by insurance" was not admissible in evidence on any theory and did not constitute an admission against interest or an admission of liability. Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673. Even if such statement was an admission against interest, it would not be binding upon the defendant Scharff-Koken Manufacturing Company. Olian v. Olian, supra.

Eagleton Waechter, Yost, Elam & Clark for respondent.

(1) The trial court did not err in refusing to discharge the jury when the plaintiff testified that appellant said "that he was fully covered by insurance and would see that I was taken care of" because: (a) Such testimony was a closely related and connected part of the appellant's admission of liability, which he subsequently denied making, tending to explain, corroborate, support and render more reasonable plaintiff's testimony as to such admission of liability, and was competent and material for that purpose. Being competent for any purpose, it could not properly have been excluded, and was proper to be considered by the jury. Jablonowski v. Modern Cap Co., 312 Mo. 173, 279 S.W. 89; Snyder v. Wagner Elec. Co., 284 Mo. 285, 223 S.W. 911; Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673; Neal v. Caldwell, 326 Mo. 1146, 34 S.W.2d 104; Thompson v. Lamar, 17 S.W.2d 960; Boten v. Sheffield Ice Co., 180 Mo.App. 96, 166 S.W. 883; Edwards v. Smith, 286 S.W. 428; Paepke v. Stadelman, 300 S.W. 845; Wulze v. Acquardo, 6 S.W.2d 1017; Steinman v. Brownfield, 18 S.W.2d 528; Lochman v. Brown, 20 S.W.2d 561; Fortner v. Kelly, 60 S.W.2d 642; Hill v. Jackson, 272 S.W. 105; Garvey v. Ladd, 266 S.W. 727. (b) Such testimony was but a portion of a complete sentence, and plaintiff had a right to prove not only the complete sentence, but the entire conversation so that the jury might see as to the consistency thereof and thereby give proper weight to all parts thereof. 22 C. J. 413; Lanham v. Vesper-Buick Auto Co., 21 S.W.2d 890; Bompart's Admr. v. Lucas, 32 Mo. 123; Burghard v. Brown, 51 Mo. 600. (2) The demand of respondent's counsel in the presence of the jury that appellant produce the policy of insurance was incited, provoked and invited by the conduct of appellant's counsel, and therefore was not prejudicial, and since no objection was made thereto, there is nothing for this court to pass upon regarding it. Emerson v. Mound City, 26 S.W.2d 766; Lewis v. Independent Packing Co., 3 S.W.2d 244; Huhn v. Ruprecht, 2 S.W.2d 760; Planett v. McFall, 284 S.W. 854; Warner v. Oriel Glass Co., 319 Mo. 1196, 8 S.W.2d 846.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

Action for personal injury. Verdict and judgment went for plaintiff for $ 17,995.85, and defendant unsuccessful in motion for new trial, appealed.

Petition was filed against Scharff-Koken Mfg. Company, defendant Carver and Walter Felter. Carver was employed by defendant company. At the close of plaintiff's case she dismissed as to Scharff-Koken Mfg. Company, and the verdict of the jury was in favor of defendant Felter. Plaintiff was injured about four-thirty A. M., March 8, 1931, while riding in an automobile as a guest of defendant Carver. Plaintiff resided with her parents at the Coronada Hotel, St. Louis, and she and others, including defendant Carver and his wife, had spent the evening at the hotel and about two-thirty A. M., March 8th, the party, consisting of six in number, went to the Avalon Club, which is west of the Coronada Hotel. Plaintiff and her escort, by invitation, went from the hotel to the club with defendant Carver and his wife in an automobile driven by defendant Carver, but owned by his employer, Scharff-Koken Mfg. Company. The party left the club somewhere around four-thirty A. M., and while defendant Carver was returning plaintiff and her escort back to the Coronada Hotel, a collision occurred between the automobile driven by defendant Carver and an automobile driven by defendant Felter, which collision resulted in serious injury to plaintiff.

In view of the assignments of error it is not necessary to consider the pleadings, nor is it necessary to consider the evidence at length. Defendant makes ten separate assignments, but these may be grouped as follows: (1) That the court erred in admitting evidence concerning insurance and in failing to discharge the jury upon request; (2) that error was committed by the refusal of defendant's Instruction A; and (3) on argument of counsel for plaintiff.

While plaintiff was on the stand, and on direct examination, the following occurred: By Mr. Eagleton: "Q. Did Mr. Carver ever call to see you in the hospital? A. Yes, sir. Q. How many times did he come? A. Two or three times. Q. Did you have any conversation with him at any time about this accident? A. I did. Q. What did he say to you about it? A. Told me he was sorry that it happened; that he felt he should have heeded my warning that night, and not to worry about the expenses, my expenses; that he was fully covered by insurance and would see that I was taken care of." Upon plaintiff stating what defendant, according to her version, said to her about insurance, defendant's counsel asked that the jury be discharged, stating that such evidence was highly prejudicial. As we understand the record, the request to discharge was made out of the hearing of the jury. A colloquy occurred between counsel and the court, which as we understand, was also not within the hearing of the jury. In this colloquy the court remarked that "he (counsel for plaintiff) has a right to inquire. It is an admission against interest as to what was said." The court did not rule at once, but deferred the matter till "the lunch hour." Later, the court, addressing Mr. Frank, counsel for defendant, said: "On that objection this morning and motion for the discharge of the jury, I am overruling it." Exception was saved. While defendant Carver was on the stand on direct examination, the following occurred: By Mr. Frank: "Q. Did you and Mrs. Carver go out to the hospital to see Mrs. Whitman after this happened? A. Yes, sir; we did. Q. Several times? A. Several times. Q. You heard her testify this morning, did you not, that she had a conversation with you at the hospital, in which you told her not to worry, that you would take care of her medical expenses? Did you hear that testimony this morning? A. Yes, sir; I did. Q. Did you make that statement to her? A. No, sir; I did not. I am in no position to take care of her medical expenses. Mr. Eagleton: I object to the last part, if the Court please, because he isn't presenting the whole statement. Mr. Frank: I was going to split it up in two questions; is that all right? Mr. Eagleton: All right; get it all in. Mr. Frank: I want to get it all in. Q. You heard Mrs. Whitman testify this morning that on one of the occasions you were out there at the hospital to see her that you made the remark to her that she didn't need to worry; that you would take care of her medical expenses because you had insurance and you were fully protected; did you make that statement to her? A. No, sir; I did not. Q. Did you say anything to her about insurance? A. I said that I didn't think I was covered under the circumstances; that I was not on company business. Q. Did you tell her that you had any insurance? A. No, sir; I did not. Q. Have you got any insurance? A. No, sir; just the company policy. Q. Are you covered under the company policy? Mr. Eagleton: I object to that. The policy would be the best evidence. Ask him to bring in the policy. You can tell how much is covered. I would like to have an order on him to bring in the policy. Mr. Frank: You brough this into this case. Mr. Eagleton: Yes, and I would like to have the policy so that I would know what is covered here. Mr. Frank: You brought this into the case yourself. And I asked him a question. She has made the statement. Mr. Eagleton: He said he did not. Mr. Frank: He said the reason he didn't make it is that he didn't have insurance. Mr. Eagleton: I say the reason he did make it is that he did have insurance, and ask that the policy be brought in court here."

Then on cross-examination of defendant, the following: By Mr Eagleton: "Q. Where is the policy of insurance? Do you know? A. That I don't know, or even if there is any. Q. How did you determine there is insurance? A. I haven't determined it. Q. You haven't determined it? A. I don't know whether they have any insurance under the circumstances. Q. You mean to say notwithstanding the fact that you are sued and Mr. Frank is acting for you as attorney and for Scharff-Koken Company, that you haven't determined whether you are insured or not? A. No, sir; I have never seen the policy. Q. Have they shown you any policy? A. No, sir. Q. Have you talked to anyone about it? A. Mr. Newell, our vice president; Mr. Scharff, our president and Mr....