Summary
In Calhoun v. McMahan, 257 S.W.2d 205 (Mo.App. 1953) it was held that the trial court did not err in refusing to strike for cause the son of the insurance agent who investigated the accident in question, when the juror-son said he could be fair and impartial. A similar holding applies here with equal force.
Summary of this case from Benscoter v. WilliamsOpinion
No. 21833.
April 6, 1953.
APPEAL FROM THE CIRCUIT COURT, HENRY COUNTY, DEWEY P. THATCH, J.
Vance Julian, Clinton, Ted Conrad and Julian Conrad, Montrose, for appellants.
Thos. E. Deacy, Kansas City, Poague, Poague Brock, Clinton, for respondent.
This action was brought to recover damages growing out of a collision between two automobiles. Plaintiff Charles D. Calhoun sued in Count 1 for his personal injuries, and he and plaintiffs David C. Calhoun and J. A. Calhoun, partners, d/b/a Calhoun's Poultry Farm and Hatchery, sued in Count 2 for damages to their automobile. The verdict and judgment were in favor of defendant (respondent), and against the plaintiffs (appellants) on both counts. The plaintiffs have appealed.
According to the evidence the plaintiff Charles D. Calhoun, driving his firm's car on business for the firm, was traveling east on Highway 52, in Henry County, Missouri, and shortly before reaching the intersection of that highway with a country road called Pleasant Valley Road, the defendant, coming from the south on the latter road, entered Highway 52 and turned eastward thereon and was run into from the rear by the plaintiffs' car. Highway 52 is a black top road, and Pleasant Valley Road is gravel surfaced. The approach to the latter road on Highway 52 from the west is upgrade.
According to the plaintiffs' evidence Charles D. Calhoun first noticed defendant's car when Calhoun was about 75 feet west of the intersection and defendant's car was then entering Highway 52. A hedge along the west side of Pleasant Valley Road obstructed Calhoun's view up to within about ten feet of Highway 52. Calhoun was familiar with both roads and knew he was approaching the intersection. He was traveling about 50 to 55 miles an hour from the west and when he had reached within twenty feet of the intersection, having seen the defendant's car entering the highway, plaintiff promptly slowed down to 35 to 40 miles an hour. Defendant had not stopped before entering the highway although there was a stop sign located there, but, going about 15 miles an hour, turned and was proceeding eastward on the highway astraddle of the center line. Calhoun did not sound his horn. Plaintiffs' car ran into the rear of defendant's car and pushed it about 150 feet through a barbed wire fence and into a corn field south of the highway, and plaintiffs' car traveled 60 to 65 feet and stopped in a ditch on the south side of the highway.
The defendant's evidence tended to prove that he slowed his car almost to a dead stop before entering Highway 52, where the stop sign was located, but left the car rolling in neutral, then looked west, where he could see about 300 feet, and then looked east and saw no traffic approaching from either direction, whereupon he turned eastward on the highway, wholly on the right-hand, south side thereof, putting his car into second, and then into high gear. When 20 or 30 feet east of the intersection he looked into his rear view mirror and saw plaintiffs' car approaching some 200 feet behind him. There were skidmarks of plaintiffs' car beginning 40 or 50 feet east of the intersection.
Plaintiffs' first point on appeal is that the court erred in not requiring defendant's counsel to answer questions propounded to him as to whether the insurance company interested in the case was a stock company or a mutual company. At the outset of the trial and without the hearing of the jury, plaintiffs' counsel asked defendant's counsel if there was any insurance company interested in the case, and if so, what was the name of the company. The answer was that the State Farm Mutual Automobile Insurance Company of Bloomington, Illinois was interested. Counsel then asked if it was a "stock" company or a "mutual" company. Defendant's counsel replied that he did not know, as he was not informed of its corporate setup. Calling attention to the word "mutual" in the name given, the court said: "I take it that it is a mutual company". Plaintiffs contend that when a mutual company is interested in a lawsuit, inquiry may be made of jurors on voir dire if anyone on the panel is a policy holder in that company. Upon further inquiry defendant's counsel said he had represented the company several years but the question had never been asked him before, as far as he could recall, and he did not know whether it was a stock or mutual insurance company. Later plaintiffs' counsel asked the panel if any members were officers, stockholders or employees of the State Farm Mutual Automobile Insurance Company of Bloomington, Illinois. Juror Clyde Wirsig volunteered "Just a policyholder. I don't think that would affect my decision".
Plaintiffs contend that there might have been others on the jury panel who were policyholders in the insured's insurance company; that plaintiffs had the right to inquire of such members as to whether they could fairly try the issues; that it was the duty of defendant's counsel to supply the information as to the character of the insurance company as being a mutual or a stock company, and that plaintiffs were thus deprived of the right to ask the "policyholder" question. We know of no rule to require counsel for defendant in such a case to do more than, upon inquiry by counsel for the plaintiff, to give the name of any insurance company interested in the defense of the case, in order that peremptory questions may be put to prospective jurors respecting their interest in such company. Maurizi v. Western Coal Mining Co., 321 Mo. 378, 11 S.W.2d 268, 274. According to the record, defendant's counsel did not refuse to say whether the company was a mutual or stock company but gave its name and address and twice told the court he did not know the corporate setup of the company. The name of the company plainly indicated that it was a mutual company. The court suggested that it apparently was a mutual company from its name; and, in fact, one juror, Mr. Wirsig, volunteered that he was a policyholder in that company, thus conveying to the plaintiff's counsel all the information he reasonably required on which merely to include in his general questions on voir dire if any of its members were policyholders of the company. We find no merit in this contention.
Defendant's second point is that the court erred in not sustaining plaintiffs' challenge of juror Wirsig for cause for the reason he was a policyholder in the State Farm Mutual Automobile Insurance Company of Bloomington, Illinois, and because he was the son of an agent of that company which had investigated the accident in question. At no time had juror Wirsig been asked about his relationship to the investigator. The first challenge of Wirsig for cause was before examination on voir dire and then on the second ground that he was a son of an investigator for the insurance company, counsel for plaintiffs remarking that he did not know whether Mr. Wirsig, Sr. would be a witness or not but if so, with his son on the jury, he might answer questions in a manner prejudicial to plaintiffs. The court overruled the challenge for the present, saying that the prospective juror might disqualify himself on voir dire, but had not yet done so. The plaintiffs' counsel thereupon asked the panel: "Now, I want to ask if any member of the panel is an officer, stockholder or an employee of the State Farm Mutual Automobile Insurance Company of Bloomington, Illinois?" Juror Wirsig asked that the question be repeated and then answered: "I have a policy with the company". He was then asked by plaintiffs' counsel if for that reason or any reason he felt he should not sit in the case, repeating the question as to his being an officer, stockholder or employee of the insurance company. Mr. Wirsig answered: "Just a policyholder. I don't think that would affect my decision". Thereupon, out of the hearing of the jury, plaintiffs' counsel asked defendant's counsel if Mr. Wirsig, Sr. would be a witness in the case, and was told that he would not be a witness. Plaintiffs' counsel then said: "I still think that Mr. Wirsig should be excused for cause". Upon objection by the defendant's counsel to the challenge, the Court said: "Not unless he disqualifies himself". Plaintiffs' counsel then announced that he would ask Mr. Wirsig if his father had discussed the case with him, whereupon he asked Wirsig: "Has anyone discussed the case with you?" Wirsig replied: "Not to my knowledge". He was not asked if he were the son of the investigator of the insurance company. The motion for new trial contained no assignment that the court erred in not excusing juror Wirsig on the ground that he was a policyholder in the insurance company. It is obvious that there is nothing in the record that would justify this court in disturbing the rulings made on the challenge of juror Wirsig for cause.
Plaintiffs' third and last point is that the court erred in giving defendant's Instruction 6 because no factual hypothesis was submitted to guide the jury on the issue of excessive speed of the plaintiffs' car. The instruction read in part:
"The Court instructs the jury if you find and believe from the evidence that at the time of the collision mentioned in evidence plaintiff Charles D. Calhoun carelessly and negligently failed and refused to exercise the highest degree of care to keep a vigilant lookout ahead and laterally of his automobile, or carelessly and negligently operated his automobile at a high and dangerous rate of speed in approaching the intersecting highway referred to in evidence when his view of cars approaching said intersection from the south was obstructed, or that * * *, and if you further find that he carelessly and negligently failed so to do, and * * * was negligent in any of the above respects * * * and that such negligence, if you so find, directly caused or contributed to cause the collision mentioned in evidence, then your verdict * * *".
Plaintiffs assert that this instruction calls for a verdict for defendant and is erroneous under Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541, for want of sufficient factual hypothesis on the issue of excessive speed. There was no substantial conflict between the evidence of plaintiffs and defendant, as to the manner in which defendant's car entered upon Highway 52, nor the speed at which he continued eastward thereafter; nor as to the physical surroundings at the point of intersection, nor that the view of a car from the south on Pleasant Valley Road as it approached the intersection with Highway 52 is partially obstructed; nor as to the plaintiff Charles D. Calhoun's familiarity with Highway 52 as it approached the intersection, nor his knowledge that he was approaching it at 50 or 55 miles an hour; nor the fact that his car was going 35 to 40 miles an hour when the collision occurred. The only differences affecting speed were that the defendant's testimony placed the plaintiffs' car at least 300 feet west of the intersection when defendant turned onto the highway, and placed the point of collision 100 feet east of the intersection, thus enlarging the distances within which plaintiff Charles Calhoun saw or should have seen the defendant's car and stopped his own, whereas his testimony placed his car at 75 feet west of the intersection as the defendant's car entered the highway from the south, and fixed the point of collision at about 40 feet east of the intersection. The instruction limits the jury, in considering whether or not, under the evidence, the plaintiff Charles D. Calhoun was carelessly and negligently operating plaintiffs' automobile at a high and dangerous rate of speed, to the operation of the car "in approaching the intersecting highway referred to in evidence when his view of cars approaching said intersection from the south was obstructed," etc. Thus there were no further disputed essential facts surrounding the issue of speed and respecting the theories of the parties as to that issue that were necessary to incorporate in the instruction. We believe the case of Knight v. Richey, Mo.Sup., 250 S.W.2d 972, applies, which holds that the rule announced in Yates v. Manchester, supra, has no application when there is no real conflict in the factual theories of the physical set of circumstances of the collision relevant to the speed, and that particular hypothesization of such facts are not necessary under the evidence. We find no errors in defendant's Instruction 6.
Judgment affirmed.
All concur.