*1 1247 $25,000 judgment the motion for a new trial and was was overruled for $35,000. entered appeal. 596, This 66 second Mo. [334 (2d) S. W. 561.] tending Defendant contends that there was substantial no evidence plaintiff, to show that injury, engaged at the time of was in commerce. It given also contends that the interstate instruction at request plaintiff authorizing recovery a under the Federal Employers’ Liability require Act a was erroneous in that it not finding plaintiff engaged. at said was time so ease, Plaintiff pleaded, theory tried and submitted Employers’ Liability it arose under the Federal Act. At the trial here injury he contends employed that at time of the he was tending interstate commerce. He introduced substantial evidence to show was employed. that he so If the believed said evi- dence, verdict, a act, under said was authorized in favor of the plaintiff. plaintiff engaged, If plaintiff both and defendant were so only recover Employers’ Liability could under Federal Act be- cause under such said It circumstances act would exclusive. duty plaintiff request was the follows that it court to underpaid authorizing recovery give act, an instruction if there .tending evidence to show that both defendant and at engaged, plaintiff’s injury time were so was caused de- comply Safety fendant’s with Appliance failure Act. require finding said admitted that instruction did time, Since, employed at said interstate commerce. by plaintiff’s evidence, only the case made
under entitled to Employers’ Act, Liability under the recover Federal and since only finding if his favor thereunder was authorized commerce, engaged the time was found interstate prejudicial the instruction erroneous authorized recovery, only engaged if found the defendant judgment commerce. For this reason should interstate be re- remanded. It is so versed and the cause ordered. All concur. S. W. William Carver, Appellant. v. (2d)
Helene Whitman 88 885. One, 18, December
Division 1935. *2 appellant. Taylor, Frank for <&Willson James V. Chasnoff Waeehter, respondent. Yost, Flam <&Clark Eagleton, *3 BRADLEY, injury. personal judg- C. Action for Verdict and plaintiff ment for $17,995.85, went for and unsuccessful in motion new trial, appealed. against Mfg. was
Petition filed Seharff-Koken Company, defendant Carver and Walter Felter. Carver employed by was defendant company. theAt close of case she dismissed as to Seharff- Mfg. Company, Koken and the verdict of was in favor of injured Felter. Plaintiff defendant was four-thirty about m., A. riding 8, 1931, guest March while an automobile as of defendant parents Carver. Plaintiff Hotel, resided with her at the Coronada including Louis, others, and she St. defendant Carver and his wife, spent evening at hotel and two-thirty about m., a. consisting 8th, number, party, March six in went to the Avalon Club, which is the Coronada Hotel. escort, west of Plaintiff and her by invitation, from went the hotel to club with defendant Carver by in an automobile Carver, and his wife driven defendant but owned Mfg. by employer, Company. Seharff-Koken party his left four-thirty club somewhere around while defendant Carver m., a. returning back plaintiff Hotel, and her escort to the was Coronada by occurred between the automobile driven a collision which collision Felter, by Carver an automobile driven injury plaintiff. resulted serious to necessary to consider assignments In view of the of error it length. pleadings, evidence at necessary consider the nor is may grouped be separate assignments, makes but these Defendant ten con- admitting evidence (1) follows: That the court erred request; cerning failing'to discharge upon insurance and Instruc- (2) by refusal defendant’s that error committed A; (3) argument plaintiff. tion of counsel for examination, stand, direct While and on Eagleton: “Q. following By Did Mr. Carver occurred: Mr. many Q. How Yes, A. sir. you hospital? call see ever any Q. you have did ? or times. Did times he come A. Two three I did. A. any him about accident? conversation with at time this sorry Q. he was you it? A. Told me What he about warning my happened; have heeded felt he should he expenses; that my night, worry expenses, and not to about the I was taken fully see that covered insurance and would stating defendant, according her Upon care of.” what asked version, insurance, defendant’s counsel said to her about highly prej stating discharged, such evidence request discharge was record, we udicial. As understand the hearing colloquy jury. A between made occurred out understand, not within court, which as also counsel and we colloquy hearing jury. In this remarked the court' (counsel right inquire. is an admis has a plaintiff) “he against rule was said.” The court did not sion interest as what Later, the once, “the lunch but deferred the matter till hour.” *4 addressing defendant, that court, Frank, “On Mr. counsel for said: jury, discharge objection morning this motion overruling I While defendant Carver Exception am saved. it.” following examination, occurred: on stand on .direct “Q. go By you Carver and Mrs. out to Did Mr. Frank:' sir; Yes, 'A. hospital happened? Mrs. Whitman after this to see Q. Q. A. heard times? Several times. You we did. Several morning, you not, testify this that she had her did conversation you you worry, which told her not to that hospital, with at the expenses? you that you Did hear take care of her medical would Q. sir; you I morning? Yes, A. Did make testimony this did. No, I sir; position ? A. I did not. am in no statement to her that Eagleton: object expenses. I take medical to care her Mr. please, presenting if he isn’t part, last the Court because going split up I was in two whole statement/ Mr. Frank: Eagleton: right? right; get in/ questions; All that all all is Mr. Q. get I heard Mrs. Whitman want it all in. You Mr. Frank: you morning were there testify that one of the occasions out this on hospital you at the to see her that made the remark her that she worry; you didn’t need care ex- would take of her medical you penses you had fully protected; insurance and were you Q. did make sir; No, statement to her? A. I not. did you say anything Did I to her about I insurance? A. said that I didn’t think circumstances; was covered I under the was not company Q. you you any business. Did insur- tell her that ance? No, sir; Q. A. I got any you did not. Have insurance? A. No, sir; just Q. you company policy. covered under Are Eagleton: company policy? object policy I to that. The Mr. would bring be the best evidence. Ask him to You policy. can tell how much is I covered. have an on him would like to order to bring policy. brough this into this ease. Frank: Mr. You Eagleton: Yes, and I policy would like have the so that Mr. I brought would know what is : this here. You covered Mr. Frank yourself. into I question. the case And him a has made asked She Eagleton: the statement. Mr. he not. Mr. Frank: He said He said the reason he make it is he didn’t have insur- didn’t Eagleton ance. Mr. : I say the is that he did reason did make it insurance, brought have ask policy in court here.” Then following: By Mr. on cross-examination of Eagleton: “Q. policy you Where is know? of insurance? Do know, Q. A. any. That I don’t if you or even there is How did Q. there determine is insurance? A. I determined haven’t it. You haven’t they determined it? A. I have don’t know whether any Q. insurance under the You circumstances. mean not- withstanding you acting Mr. are sued Frank fact.that you attorney Company, you as and for Scharff-Koken haven’t you sir; No, determined whether or not? A. I are insured have Q. policy. they never seen the A. you any policy? Have shown Q. No, you Newell, anyone sir. Have it? A. Mr. talked to about Q. president; if, our vice Mr. Schar president our and Mr. Frank. you any No, And policy? didn’t show A'. sir. Mr. Frank: E'agleton: Ask him what we talked about. Mr. I don’t have to Q. you you you ask what did. So don’t know whether have insur- Q. acting No, attorney ance? A. sir. But he is the here for the company issuing A. Yes, same? sir.” A
Defendant’s refused “The Instruction follows: Court determining jury that you instructs the the issues in this case disregard shall surance, all remarks counsel and regarding witnesses in- *5 nothing as that has with the to do issues in the case.” jury argument by counsel for In to the the record shows Eagleton: following: I the And do it was said because “Mr. : If I please, object he had insurance —Mb. the court to that Frank argument. positively of Mr. Carver has testified the form on stand Eagleton: protected he is not covered and insurance. Mr. that the I move that contrary testimony, also. Mr. There Frank: disregard
jury highly prejudicial remark. be instructed to that The testimony what the was. will remember The Mr. Court: disregard move, your to I be instructed Honor, that Frank: objection will remark over- that of counsel. The be The Court: . ruling court which defendant ruled. Proceed. To Eagleton: verdict this excepted. return kind that the of Mr. You evidence, ought the girl have, his Honor’s to under instructions If Court of me. the and leave the collection it to Frank: Mr. I argument. highly object prejudicial. I please, to that That : disregard Proceed it. the be instructed' to move The Court argument. my exception.” with the Note Frank: Mr. was on counsel, when will defendant’s defendant It be noted that subject that stand, went of insurance and into by her. having plaintiff the statement as claimed made denied subject appears on cross-examination of defendant Also, it that gone objection, again and counsel over without of insurance argument say: question, “The there- plaintiff in for their written gone into fore, the defendant had insurance of whether or not slightest objection from great length by counsel both without only invited apparent either side. It is that the not thereby to issue, same, hoping but welcomed convince the time, statement, and, same at the of the untruthfulness of him. mere strong sympathy of The fact to create sense for attempt in his be reason unsuccessful should no defendant was argue permitted whole why now be the defendant should subject jury. not the consideration of the of insurance very affecting was, case necessarily became, part vital plaintiff It was credibility proper or the defendant. of either in their to determine who jury’s consideration effort many disputed plain- facts telling between the truth about Also, it is contended and the defendant.” tiff theory that prove the defendant had insurance on the entitled liability. tend to show defendant’s evidence would such agree subject plaintiff. with learned counsel for We cannot arise in manner as competent did not such insurance only affecting credibility. Plaintiff would be interested affect credibility certainly she adversely the could testifying by first accomplish such result as to what defend- properly insurance, and then when about he denied con- her such ant said to self-defense, impeaching call such situation evidence. versation bring subject of insurance before the was no occasion There right did not waive to make the best he could jury. Defendant by denying conversation, he had such situation bad claimed, out subject of insurance. The court ruled according said, plaintiff's version, what defendant
1253 interest, against subject insurance, competent was an admission of as liability. an admission of is, show that such evidence tended to 59 W. Olian, 689, S. 332 Mo. ruling in v. We think that the Olian arising on the adversely question (2d) 673, the settles the appears that subject of In that case it insurance. story of a third boy years porch back old, a thirteen fell from the against way. gave suit apartment a wire The screen trial, the In apartment the course owners. owner with if a conversation defendant father was asked he had The so, said. just accident, if what was hospital after told course, and very sorry, of said witness answered: “He he was money stand boy; let no go I me to ahead and do all could for the it.” it; care of way; fully in would take he was insured for discharged. jury be objected The and asked that discharge request to objection and denied the The court overruled the disregard the jury, would but admonished may tend ... it “except as evidence about insofar insurance liability.” G. Olian admitted to show that Louis testify to mother, case, permitted Plaintiff’s in the Olian said about father as to what defendant about the same did the Olian case assignment in the ruling insurance. The in court discloses, think, per reading we this record said that “the of fact get jury the sistent and insistent determination to before some, liability which would of insurance defendant had sort verdict, an insur and that protect against jury’s him loss from the merely pay had contracted to company paying what it ance would in There are received.” premium consideration for the had liability in has proper prove when it is that a defendant stances surance, only is relevant but when such evidence such ease arises and material involved. to some issue 96, App. In 166 S. W. Company, Boten 180 Mo. v. Sheffield Ice belonging
883, assisting tearing an house down ice injured. president to defendant and was Defendant’s testified charge of defendant did not own the house and that the foreman president of the work was not the foreman of defendant. The company policy of ice was asked if the defendant taken out razing “covering liability working insurance these men building.” question issue competent was held on “the tearing Company down whether or not the Ice Sheffield building Company.” It was ruled that Bean Lake Ice covering lia- indemnity evidence took out insurance bility building engaged tearing as to the men down the “would doing strong probative going be of value to show 845, (Mo. App.), 300 S. W. evi- Paepke work.” In v. Stadelman competent ownership dence of insurance was held on the issue of also, Cap an Manufactur- automobile. Jablonowski v. Modern [See, 1254
ing 312 Company, 89; Garvey (Mo. 279 173, App.), Mo. S. W. v. Ladd 727; 643, 266 Likes, 447, S. 166 W. App. W. v. 180 Mo. S. Burrows Snyder Wagoner Mfg. v. 223 W. Co., 285, S. Elec. Mo. 911.] Stadelman, A number of Paepke cases are cited v. and reviewed *7 subject supra, and is necessary not to here more on the of when evidence of competent. insurance is subject stated, bring
As in there was occasion to the of no jury, surance the and have mentioned the before should not subject relating says in the conversation she she had with defendant hospital. liability^ such, at the If defendant insurance cover here, tending any under the in facts to establish fact no evidence ground issue. It is contended that there is that complaint no on the finding the evidence did not warrant a for and that there complaint is no that excessive, the verdict is and it is that contended being situation, the is excessive, verdict not and that such the de injured and, fendant was therefore, question not the insurance should work plaintiff’s not a reversal. suf is that evidence was true finding ficient her, to warrant a for and that defendant does not challenge sufficiency evidence, and it is true that defendant of the assignments assign specifically in his ver does not on an excessive losing damage complain if a dict. But cannot case injured jury party wrongfully getting before the that by insurance, is covered because evidence is sufficient support finding the verdict not and because ex cessive, case, plain then such limit which a there would be no go advising by tiff jury could was covered that the defendant negligence insurance. If pleadings a defendant confess should court, open negligence or or his the evidence as to was such differ, reasonable minds clearly be could not and the verdict in amount excessive, objection not if a or defendant made or saved no exception respecting ground no insurance, then be there would no . complaint. But that is not the not situation here. Defendant did negligence, negligence confess his as such nor the evidence to his necessary express reasonable minds could not differ. It is not any opinion as to-the. Defend amount of verdict and we do not. subject ant at all preserved times and his record the insurance verdict, assign while specifically he did not on an he excessive assign bias, passion prejudice that “the is the and verdict result , inflammatory . char- by prejudicial . and was and induced arguments De- evidence, acter of and admitted.” statements negligent and fendant’s evidence show he tended to go jury is- right, here, he had the under the facts being lightly negligence sue of his free from the chance this issue by might pro- considered that he was believe try A plaintiff tected insurance. “should never his cause on the theory get way that if can in to understand that he some
1255 ultimately damages as company pay will have to an insurance big (Italics get and verdict.” sessed, is sure to win his case 689, (2d) 673, ours.) 332 59 W. l. Olian, v. Mo. S. c. 677.] [Olian imply was tried on such mean to case We do not quote excerpt from Olian case to theory, we show but only thing- may may be not be the amount verdict paraded subject has them the of in when the affected before valid reason to introduce in this Plaintiff had no case. surance supra; Olian, v. subject in this cause. insurance [Olian (2d) 876, 4; Crapson Butts, 51 S. W. v. United v. 330 Mo. Hannah 722; App.), (2d) Robinson Chautauqua Company (Mo. 27 S. W. (2d). R., See, also, 44 L. McVay W. 238. A. (Mo. S. App.), v. 1403, 56 190, 211 A. R. Jessup (Neb.), v. N. W. L. Davis *8 foregoing C., opinion adopted PER CURIAM:—The Bradley, judges opinion of All concur. the court. notes R. 759, 74 A. L. (Mich.), N. W. v. Lewis Stehouwer 844.] reversed the cause remanded and judgment should Hyde, Ferguson CC., ordered. concur. is so