Whitman v. Carver

• Decision Date: 12 November 1935
• Docket Number: No. 32988.,32988.
• Citation: 88 S.W.2d 885
• Parties: WHITMAN v. CARVER.
• Court: Missouri Supreme Court

88 S.W.2d 885

WHITMAN v. CARVER.

No. 32988.

Supreme Court of Missouri, Division No. 1.

November 12, 1935.

Rehearing Denied December 18, 1935.

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

Action by Helene Whitman against William Carver. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Taylor, Chasnoff & Willson and James V. Frank, all of St. Louis, for appellant.

Eagleton, Waechter, Yost, Elam & Clark, of St. Louis, for respondent.

BRADLEY, Commissioner.

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 Manufacturing 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 Manufacturing Company, and the verdict of the jury was in favor of defendant Felter. Plaintiff was injured about 4:30 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 2:30 a. m. March 8th, the party, consisting of six in number, went to the Avalon Club, which is west of the Coronado 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 Manufacturing Company. The party left the club somewhere around 4:30 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 brought 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. Frank.

"Q. And they didn't show you any policy? A. No, sir.

"Mr. Frank: Ask him what we talked about.

"Mr. Eagleton: I don't have to ask what you did.

"Q. So you don't know whether you have have insurance? A. No, sir.

"Q. But he is the attorney here acting for the company issuing the same. A. Yes, sir."

Defendant's refused instruction A is as follows: "The Court instructs the jury that in determining the issues in this case you shall disregard all remarks of counsel and witnesses regarding insurance, as that has nothing to do with the issues in the case."

In argument to the jury by counsel for plaintiff, the record shows the following:

"Mr. Eagleton: And I do say it was said because he had insurance —

"Mr. Frank: If the court please, I object to that form of argument. Mr. Carver has testified positively on the stand that he is not covered and protected by insurance.

"Mr. Eagleton: There is contrary testimony, also.

"Mr. Frank. I move that the jury be instructed to disregard that highly prejudicial remark.

"The Court: The jury will remember what the testimony was.

"Mr. Frank: I move, your Honor, that they be instructed to disregard that remark of counsel.

"The Court: The objection will be overruled. Proceed. To which ruling of the court defendant * * * excepted.

"Mr. Eagleton: You return the kind of verdict that this girl ought to have, under his Honor's instructions and the evidence, and leave the collection of it to me.

"Mr. Frank: If the Court please, I object to that argument. That is highly prejudicial. I move the jury be instructed to disregard it.

"The Court: Proceed with the argument.

"Mr. Frank: Note my exception."

It will be noted that defendant's counsel, when defendant was on the stand, went into the subject of insurance and that defendant denied having made the statement to plaintiff as claimed by her. Also, it appears that on cross-examination of defendant the subject of insurance was again gone over and without objection, and counsel for plaintiff in their written argument say: "The question, therefore, of whether or not the defendant had insurance was gone into at great length by both counsel without the slightest objection from either side. It is apparent that the defendant not only invited the issue, but welcomed the same, hoping thereby to convince the jury of the untruthfulness of plaintiff's statement, and, at the same time, to create a strong sense of sympathy for him. The mere fact that the defendant was unsuccessful in his attempt should be no reason why the defendant should now be permitted to argue that the whole subject of insurance was not for the consideration of the jury. It necessarily became, and was, a very vital part of the case affecting the credibility of either the plaintiff or the defendant. It was proper for the jury's consideration in their effort to determine who was telling the truth about the many facts disputed between the plaintiff and the defendant." Also, it is contended that plaintiff was entitled to prove that the defendant had insurance on the theory that such evidence would tend to show defendant's liability.

We cannot agree with learned...