Summary
In White v. Teague, 353 Mo. 247, 182 S.W.2d 288, 298, the several defendants reported to the court that they could not agree on the challenges to be made. The court directed the clerk to call the first twelve names on the list as the jury.
Summary of this case from Adair v. N.W. Electric Power Coop., Inc.Opinion
No. 38991.
September 5, 1944.
1. NEGLIGENCE: Motor Vehicles: Collision at Highway Intersection: Failure to Sound Horn or Apply Brakes: Submissible Case. There was evidence that the driver of the truck and trailer saw the car in which plaintiff was riding approach the highway intersection in the dark at high speed and without any attempt to slow down or stop, and that the driver of the truck had the impression that the driver of the car was oblivious to the danger, yet the driver of the truck did not sound his horn or apply the brakes. There was a submissible case against the owner and the driver of the truck.
2. TRIAL: Insurance: Questioning Jurors as to Insurance Companies Not Error. It was not error to require the attorneys for defendants to give the names of their insurance carriers out of the presence of the jury and then to permit prospective jurors to be questioned as to their connection with such insurance companies.
3. TRIAL: Failure of Defendants to Join in Jury Challenges. When defendants could not agree as to their three challenges, it was not error to refuse a challenge to one defendant and to call the first twelve names on the jury list.
4. NEGLIGENCE: Limitations of Actions: Time: Wrongful Death Action Filed Within Six Months. The injury resulting in death occurred on September 20, 1941, and suit was filed by the husband on March 20, 1942. The action was filed within the required six months period.
5. TRIAL: Negligence: Instruction of Codefendant Immaterial. Defendant Teague cannot complain of an instruction pertaining to a codefendant which was not prejudicial to her interest.
6. TRIAL: Proper to Withdraw Instruction. It was proper for the trial court to withdraw an instruction which should not have been given.
7. TRIAL: Remarks of Counsel. The trial court acted within his discretion in ruling on remarks of counsel.
Appeal from Dunklin Circuit Court. — Hon. James V. Billings, Judge
AFFIRMED.
Max B. Reid, Reid Evrard, John M. Dalton and Arthur U. Goodman, Jr., for appellant Alice Louise Teague.
(1) Defendant's counsel should not be compelled to reveal the name of an insurance company by whom they are employed, such information being irrelevant and immaterial to any issue in the case. Buehler v. Festus Merc. Co., 343 Mo. 139, 119 S.W.2d 961; Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 678. (2) It is prejudicial and reversible error to inject the poison of "insurance" into a suit for damages, particularly where there is no evidence in the case to connect such matter with the facts properly admitted in evidence. 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; Chambers v. Kennedy, 274 S.W. 726; Hannah v. Butts, 330 Mo. 876, 51 S.W.2d 4; Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673; Whitman v. Carver, 337 Mo. 1247, 88 S.W.2d 885; Buehler v. Festus Mere. Co., 343 Mo. 139, 119 S.W.2d 961; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463; Melvin v. Cater, 221 Mo. App. 1212, 299 S.W. 103. (3) Defendant Teague was entitled to reject at least one juror from the list of eighteen men on the panel. All defendants had agreed on one challenge, and since defendants Plaza Express Company and Carl Collier were represented by the same attorneys and relied on the same facts as a defense, defendant Teague was deprived of her rights in not being allowed to reject a single member of the jury panel. The challenging of jurors from the panel is exercising the right of rejection and not the right of selection. The court abused its descretion in denying to appellant Teague the right to reject any juror, thereby enabling her codefendants to select and retain the juror desired by them. Sec. 720, R.S. 1939; 35 C.J., p. 405, sec. 459, p. 408, sec. 463, pp. 409, 410, sec. 468; O'Brien v. Vulcan Iron Works, 7 Mo. App. 257; Eckert v. St. Louis Transfer Co., 2 Mo. App. 36; Rogers v. Armstrong, 30 S.W. 848; Flowers v. Flowers, 74 Ark. 212, 85 S.W. 242; Cuero First Natl. Bank v. San Antonio, etc., R. Co., 97 Tex. 201, 77 S.W. 410; Waggoner v. Dodson, 96 Tex. 6, 68 S.W. 813, 69 S.W. 993; Hargrave v. Vaughn, 82 Tex. 112, 17 S.W. 772; Sweeney v. Taylor, 41 Tex. Civ. App. 365, 92 S.W. 442; International, etc., R. Co., v. Bingham, 40 Tex. Civ. App. 469, 89 S.W. 1113; Texas, etc., R. Co. v. Stell, 61 S.W. 980; Levyn v. Koppin, 183 Mich. 232, 149 N.W. 993. (4) It is error to give an instruction (such as No. 9-D) which is confusing or contradictory within itself. Schimmelpfenning v. Wells, 24 S.W.2d 154; Larey v. M.K. T.R. Co., 333 Mo. 949, 64 S.W.2d 681; Kick v. Franklin, 342 Mo. 715, 117 S.W.2d 284; Perles v. Feldman, 28 S.W.2d 375; Yancey v. Central Mut. Ins. Assn., 77 S.W.2d 149; Bain v. M.K. T.R. Co., 141 S.W.2d 577. (5) Instruction No. 9-D is further erroneous in that it informs the jury that Collier was not guilty of negligence if he made such a choice "as he believed a person of ordinary prudence might have made under like or similar circumstances." The test is not what he believed a person of ordinary prudence might have done; the test is what such a person would have done. 45 C.J., p. 688, sec. 56, pp. 710-713, secs. 92-96, pp. 962-966, secs. 517-519; Blyston-Spencer v. St. Louis United Rys. Co., 152 Mo. App. 118, 132 S.W. 1175; O'Rourke v. Lindell Ry. Co., 142 Mo. 342, 44 S.W. 254; Crupe v. Spicuzza, 86 S.W.2d 347; Mayne v. May Stern Furn. Co., 21 S.W.2d 211; Garvey v. Ladd, 266 S.W. 727; Williams v. Kansas City, 177 S.W. 783; The Germanic, 196 U.S. 589, 25 S.Ct. 317, 49 L.Ed. 610; Maguire v. Barrett, 223 N.Y. 49, 119 N.E. 79; Mertz v. Connecticut Co., 217 N.Y. 475, 112 N.E. 166; Louisville, etc., R. Co. v. Vanarsdell, 25 Ky. L. 1432, 77 S.W. 1103; Texas, etc., R. Co. v. Scarborough, 104 S.W. 408, affirmed 101 Tex. 436, 108 S.W. 804; Oceanic Steam Nav. Co. v. Aitken, 196 U.S. 589, 25 S.Ct. 317, 49 L.Ed. 317, 49 L.Ed. 610, affirmed 124 F. 1, 59 C.C.A. 521. (6) The "emergency doctrine" attempted to be enunciated in Instruction 9-D does not apply where the so-called emergency arises through the negligence of the one claiming the benefit of the rule, as in this case. 42 C.J., pp. 890-892, sec. 592, p. 713, sec. 96; Garvey v. Ladd, 266 S.W. 727; Hall v. St. L.-S.F. Ry. Co., 240 S.W. 175; Iman v. Walter Freund Bread Co., 332 Mo. 461, 58 S.W.2d 477; Windsor v. McKee, 22 S.W.2d 65; Crupe v. Spicuzza, 86 S.W.2d 347. (7) The court committed error in withdrawing Instruction 3-T after all instructions had been read to the jury and argument of the case completed, as defendant Teague was thereby deprived of her rights to have her case argued under the instructions of the court. Sec. 1118, R.S. 1939. (8) Instruction 3-T properly declared the law, was supported by the facts, and should have been given to the jury. Sec. 8385 (1), R.S. 1939; Dean v. Moceri, 87 S.W.2d 218; Ross v. Wilson, 163 S.W.2d 342; Nichols v. Schlensner, 227 Mo. App. 1106, 59 S.W.2d 708; Petring v. Albers, 241 S.W. 452. (9) The comments of the court as to the evidence were highly prejudicial, improper, and constitute reversible error. In effect, the court told the jury that defendant Teague had no right to proceed into the intersection, that there was no evidence she arrived at the intersection at approximately at the same time as the truck of her codefendant, thereby depriving defendant Teague of her defense before the jury. Such conduct and remarks amounted to an abuse of discretion and constituted reversible error. 64 C.J., p. 94, sec. 98, p. 102, sec. 107, p. 516, sec. 468; State ex rel. v. Manhattan Rubber Mfg. Co., 149 Mo. 181, 50 S.W. 321; Schmidt v. St. Louis R. Co., 149 Mo. 269, 50 S.W. 921; Rose v. Kansas City, 125 Mo. App. 321, 102 S.W. 578; Webb v. Baldwin, 165 Mo. App. 240, 147 S.W. 849; State v. Potter, 102 S.W. 668, 125 Mo. App. 465; McPeak v. Mo. Pac. Ry. Co., 128 Mo. 617, 30 S.W. 170; Dreyfus v. St. Louis S. Ry. Co., 124 Mo. App. 585, 102 S.W. 53; Laible v. Wells, 317 Mo. 141, 296 S.W. 428; Burgess v. Garvin, 272 S.W. 108, 219 Mo. App. 162. (10) The jury should have been discharged after the court had withdrawn Instruction 3-T and made its several remarks to the jury in connection with same. The effect of such action on the jury cannot be eliminated by the court's statement that he did not intend to comment on the evidence, which he clearly did. See all authorities cited under Point (9), supra. (11) A defendant may complain of an instruction given on behalf of a codefendant which is prejudicial to the complaining defendant. Pierce v. Michel, 60 Mo. App. 187; Asmus v. United Rys. Co., 152 Mo. App. 521, 134 S.W. 92; Asmus v. United Rys. Co., 160 Mo. App. 61, 140 S.W. 933; Nevens v. Solomon Finn, 235 Mo. App. 967, 139 S.W.2d 1109; Story v. People's Motorbus Co., 327 Mo. 719, 37 S.W.2d 898; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; Gabelman v. Bolt Bonner, 336 Mo. 539, 80 S.W.2d 171; McCombs v. Ellsberry Fellis, 337 Mo. 491, 85 S.W.2d 135; Grimes v. Red Line Service, Inc., 337 Mo. 743, 85 S.W.2d 767; Berry v. K.C. Pub. Serv. Co., 341 Mo. 658, 108 S.W.2d 98; State ex rel. Nevins v. Hughes, 347 Mo. 968, 149 S.W.2d 836; Kelly v. Laclede R.E. Inv. Co., 348 Mo. 407, 155 S.W.2d 90; Bowman v. Moore, 167 S.W.2d 675.
R.F. Baynes, Harry H. Bock and L.R. Jones for appellants Plaza Express Company and Carl Collier.
(1) More than six months had elapsed between the date of the accident in which the deceased wife of plaintiff was killed, and the date this suit was filed. The deceased died on September 20, 1941, and suit was not filed until March 20, 1942; the six months period expired on March 19, 1942. Secs. 3652, 3654, R.S. 1939. (2) A case should not be submitted to the jury unless there is evidence to support a finding of liability therefor. In other words, a case should not be submitted to the jury upon mere suspicion or conjecture. 4 Blashfield's Cyclopedia of Automobile Law Practice, sec. 2847, p. 604; McCoy v. Home Oil Gas Co., 60 S.W.2d 715; Burton v. Joyce, 22 S.W.2d 890; Cox v. St. Louis S.F. Ry. Co., 9 S.W.2d 96; Goodson v. Schwandt, 300 S.W. 795; Rowe v. United Rys. Co. of St. Louis, 247 S.W. 443; Miller v. Wilson, 288 S.W. 997; Shepherd v. Railroad Co., 72 S.W.2d 985; Bauer v. Wood, 154 S.W.2d 356. (3) There is no evidence whatever in the case justifying a submission under the humanitarian rule. State ex rel. v. Shain, 159 S.W.2d 582; Gardener v. Turk, 123 S.W.2d 158; Swain v. Anders, 140 S.W.2d 730; Pogue v. Rosegrant, 98 S.W.2d 528; Perkins v. Terminal Railroad Assn. of St. Louis, 102 S.W.2d 915; Putman v. Unionville Granite Works, 122 S.W.2d 389; Feeherty v. Sullivan, 129 S.W.2d 926; Winter v. Met. Life Ins. Co., 129 S.W.2d 99; Branson v. Abernathy Furniture Co., 130 S.W.2d 562; White v. Mo. Motors Dist. Co., 47 S.W.2d 245; Irving v. Kelting, 46 S.W. 924; Woods v. United Rys. Co., 203 S.W. 489; Phillips v. Henson, 30 S.W.2d 1065; Clark v. Railroad Co., 6 S.W.2d 954; Karte v. J.R. Brockman Mfg. Co., 247 S.W. 417; Shanks v. Springfield Traction Co., 101 Mo. App. 702; McGowan v. Wells, 24 S.W.2d 633; Huckleberry v. Mo. Pac. R. Co., 26 S.W.2d 980; Bumgardner v. St. Louis Pub. Serv. Co., 102 S.W.2d 594; Wallace v. St. Joseph Ry., L., H., P. Co., 77 S.W.2d 1011; Massman v. Kansas City Pub. Serv. Co., 119 S.W.2d 833. (4). In applying the humanitarian rule, it is held that the defendant has a right to presume until the contrary appears, that the other driver will use his eyes and act as a reasonable person for his own protection. Elkin v. St. Louis Pub. Serv. Co., 74 S.W.2d 951; Roberts v. Consolidated Paving Material Co., 70 S.W.2d 543; Hanks v. Anderson-Parks, 143 S.W.2d 314; Dean v. Moceri, 87 S.W.2d 218. (5) While it is the duty of the trial court in passing on a demurrer to the evidence to make every inference of fact against the party offering it that the evidence will warrant and which the jury, with any degree of propriety might make, yet the court is not required to submit a case where a mere conjecture or suspicion might be raised by the proof of a given state of facts favorable to the plaintiff. Stokes v. Burns, 33 S.W. 460, 132 Mo. 214. (6) The rule that the court on demurrer to plaintiff's evidence must take it as true and give him the benefit of every reasonable inference therefrom, does not relieve plaintiff of the necessity of producing substantial testimony to prove the issues. Near v. Railroad Co., 168 252 S.W. 1186. (7) A demurrer or an instruction in the nature of a demurrer to the evidence, challenges the sufficiency of the evidence to make submissible case, and the demurrer to the evidence should be sustained where there is no evidence. Macklin v. Fogle Constr. Co., 31 S.W.2d 14; Milikan v. Thyson Comm. Co., 100 S.W. 604, 202 Mo. 637; Kennedy v. Met. Street Ry. Co., 128 Mo. App. 297; Kendrix v. Harris, 171 Mo. App. 208; State ex rel. Baumunk v. Goetz, 131 Mo. 675; Smarr v. Smarr, 6 S.W.2d 860. (8) The fact that the Teague car ran into and against the Plaza Express truck, there can be no recovery under the humanitarian doctrine. Lotta v. Kansas City Pub. Serv. Co., 117 S.W.2d 296; Ziglemeyer v. East St. Louis Suburban Ry. Co., 51 S.W.2d 1027, 330 Mo. 10; Cavey v. St. Joseph L., H. P. Co., 55 S.W.2d 438, 331 Mo. 882. (9) The court erred in refusing Instruction 13D offered by defendants, Carl Collier and Plaza Express Company, which said instruction is as follows: "The Court instructs the jury there is no evidence in this case sufficient to entitle plaintiff to recover on humanitarian doctrine against the defendant, Carl Collier or Plaza Express Company, and your verdict cannot be in favor of the plaintiff on such grounds." See Authorities above. (10) The court erred in giving plaintiff's requested instructions 1P, 2P, 3P, 4P and 5P. (11) Appeals to sympathy based on matters not in evidence, and which cannot in any legitimate way, be brought to the attention of the jury, are highly improper. 64 C.J., p. 280, sec. 298 and Missouri eases cited in footnote; Torreyson v. United Rys. Co., 144 Mo. App. 626; Haake v. G.H. Dulle Milling Co., 168 Mo. App. 177. (12) Arguments and comments by counsel calculated to arouse the passions and prejudices of a jury by presenting to them considerations extraneous to the evidence, are highly improper. 64 C.J., p. 276, sec. 294, and Missouri cases cited in footnote 30, on p. 277.
Ward Reeves and Hal H. McHaney for respondent.
(1) The court did not err in requiring counsel for defendant Teague to state the name of the insurance company employing them. It is proper practice where an insurance company has assumed the defense of a lawsuit instituted against its insured to permit counsel to inquire of defendants' counsel, out of the presence and hearing of the jury, the name of the company represented in order to ascertain the interest or bias of the jurors in the result of the litigation at the time of their voir dire examination. Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 678; Buehler v. Festus Merc. Co., 343 Mo. 139, 119 S.W.2d 961; Glick v. Arink, 58 S.W.2d 714; Wack v. F.E. Schoenberg Mfg. Co., 331 Mo. 177, 53 S.W.2d 28; Given v. Midwest Paving Co., 53 S.W.2d 23; Jenkins v. Chase, 53 S.W.2d 21; Pinter v. Wilson, 46 S.W.2d 548; Smith v. Lammert, 41 253 S.W.2d 791; Gabler v. Grossberg, 324 Mo. 1176, 26 S.W.2d 969. (2) Likewise, it was proper for counsel for plaintiff to question the jury panel as to their possible connection with the Tennessee Automobile Insurance Company, the insurer of Alice Louise Teague. No objection was made at the time. The same cannot be urged on appeal as error. See all authorities under (1); McDonnell v. Cornelison, 25 S.W.2d 558. (3) The court did not err in requiring the parties to jointly agree upon their peremptory challenges and in the absence of agreement calling the first twelve jurors as a jury to try the case. Sec. 720, R.S. 1939; State v. Dipley, 147 S.W. 111; Clark v. St. Louis S. Ry. Co., 234 Mo. 396, 137 S.W. 583; Rees v. C., B. Q., 156 Mo. App. 52, 135 S.W. 981; Schwartzberg v. United States, 241 F. 348, 154 C.C.A. 228; Wilkes v. United States, 291 F. 988. (4) The defendant Alice Louise Teague cannot complain of the giving of Instruction 9D in behalf of defendants, Plaza Express Company and Carl Collier, because such instruction, if erroneous, was not prejudicial because the jury found against the defendants Plaza Express Company and Carl Collier. Sec. 1228, R.S. 1939; Hulen v. Wheelock, 318 Mo. 502, 300 S.W. 479; Watts v. St. Joseph Lead Co., 243 S.W. 439; Augustus v. C., R.I. P. Ry. Co., 153 Mo. App. 517, 134 S.W. 22. (5) Furthermore, the errors complained of in Instruction 9D, i.e.: (1) that Instruction 9D is confusing, (2) that Collier was not guilty of negligence if he made such a choice "as he believed a person of ordinary prudence might have made, etc.," instead of a choice such as an ordinary person would have made and (3) the inapplicability of the emergency doctrine because of Collier's negligence, in no way affected the defense of Alice Louise Teague or placed any greater burden upon her. She, therefore, has no right to complain of said instructions, whether they are erroneous or not. Applebee v. Ross, 48 S.W.2d 900; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; Story v. Peoples Motorbus Co., of St. Louis, 327 Mo. 719, 37 S.W.2d 898; Schuette v. Weber, 282 S.W. 109; Mitchell v. Brown, 190 S.W. 354; Voelker v. Hill-O'Meara Constr. Co., 153 Mo. App. 1, 131 S.W. 907. (6) The court did not err in withdrawing Instruction 3T from the consideration of the jury. Instruction 3T advised the jury that if Alice Louise Teague approached the intersection from the right and if she reached the intersection of approximately the same time as the truck, that Alice Louise Teague was entitled to the right of way, etc. The withdrawal was not made improper because the case had been argued. All of the defendants were given an opportunity to discuss the situation after the instruction was withdrawn but declined to do so. Wells v. Wilson, 293 S.W. 127; Jenkins v. Wabash Ry. Co., 232 Mo. App. 438, 107 S.W.2d 204; Carroll v. Wiggains, 199 S.W. 280. (7) Instruction 3T did not properly declare the law under the facts in this case. The uncontradicted testimony was that the automobile ran into the side of the truck. Under such circumstances the rule of the road contended for by the appellant Teague gives way to the rule that the vehicle first reaching the intersection has the right of way. There was, therefore, no evidence to support the instruction. Bramlett v. Harlow, 75 S.W.2d 626; Pappas Pie Baking Co. v. Stroh Bros. Delivery Co., 67 S.W.2d 793; Petring v. Alberts, 241 S.W. 452. (8) The court did not err at the time of withdrawing Instruction 3T in telling the jury there was no evidence to form the basis for the giving of the instruction. Such was the proper reason for the withdrawal of said instruction, and it was not erroneous for the court to say so in the presence of the jury. See authorities under (6) and (7). (9) The remarks of the court when Instruction 3T was withdrawn from the jury to the effect that the court was not trying to invade the province of the jury but that it was the duty of the court to decide whether the evidence is sufficient on any given matter to warrant the submission of any instruction and the court was simply trying to perform its own function in explaining the fact that the court was withdrawing the instruction and refusing it for the legal reason mentioned, and further, if it (the jury) understood the court was attempting to comment on the evidence or the weight of the evidence to disregard anything the court said for the court wasn't trying to pass on the facts but on the law governing the facts, were proper under the circumstances and do not constitute error. Sec. 1228, R.S. 1939; McNeill v. Fidelity Casualty Co., 336 Mo. 1142, 82 S.W.2d 582; Goyette v. St. Louis-S.F. Ry. Co., 37 S.W.2d 552.
Respondent White filed this suit in the Pemiscot County Circuit Court against appellants Alice Louise Teague, Carl Collier and Plaza Express Company, a Corporation, to recover damages for the death of his wife who it was alleged met her death through the negligence of appellants. The case was transferred on change of venue to Dunklin county, Missouri. A trial resulted in a verdict for plaintiff in the sum of $5,000. An appeal was taken from the judgment to the Springfield Court of Appeals. That court affirmed the judgment but one of the judges dissented and deemed the majority opinion to be in conflict with controlling decisions of this court. The case was therefore certified here for determination. The opinion of the court of appeals is reported in 177 S.W.2d 517. The reason for the dissent, as per the dissenting opinion, was that the evidence was deemed to be insufficient to sustain a verdict against Carl Collier and the Plaza Express Company. The case was submitted to a jury as against these defendants under the humanitarian doctrine.
The opinion of the court of appeals is rather lengthy and the facts are there set forth in detail. A number of points were briefed by appellants. We will refer only briefly to some of these since they were fully considered and correctly determined by the court of appeals. We will give the question of the sufficiency of the evidence as against Collier and the Plaza Express Company particular consideration. Respondent's wife lost her life as the result of a collision of a car driven by defendant Teague in which she was riding as a guest and a trailer truck owned by the Plaza Express Company and driven by appellant Collier. The collision occurred about 7:30 P.M., September 20, 1941, in Pemiscot county at the intersection of highway 61 and route "U". The Plaza truck was being driven north on highway 61. The Teague car was being driven west on route "U". It was dark, the weather fair, the roadways dry and the surrounding territory level. It was conceded that the car driven by Miss Teague in which respondent's wife was riding was traveling at a speed of about fifty miles per hour or more and that it struck the trailer just to the rear of the truck wheels upon which the trailer was resting. Miss Teague testified that she did not know there was a highway at that point intersecting with route "U"; that she was not acquainted with the roadway and did not see the truck until the moment of the collision; that the speed of her car was not checked prior to the collision; that she did not notice a warning sign nor a stop sign located on route "U" near highway 61. Under that evidence appellant on route "U" near highway 61. Under that evidence appellant Teague was guilty of negligence as a matter of law. However, Mrs. White, the deceased, was a guest and the negligence of Teague cannot be imputed to her. There was no contention made that it should be.
The question on which the judges of the court of appeals could not agree was the sufficiency of the evidence to justify the submission of the case under the humanitarian doctrine against the Plaza Company and its agent. The agent and driver, Collier, testified that he saw the lights of the Teague car as it approached the intersection when it was over a half mile from the point of collision; that he was driving at a speed of about thirty-five miles per hour; that he did not sound a horn or slacken the speed of his truck until after the collision. The case was submitted to the jury on the theory that if Collier saw, or by the exercise of the highest degree of care could have seen or discovered that the occupants of the Teague car were in a perilous position because of obliviousness, in time to have averted the collision, then a verdict for plaintiff was justified. It is earnestly insisted by appellants Collier and the Plaza Company that the evidence wholly [290] failed to justify such a submission. We shall examine the evidence on this point. As the truck approached the intersection a car being driven east on route "U" stopped west of highway 61 to let the truck pass over the intersection. The driver of this car testified for plaintiff. Note his evidence as to what he saw:
"Well, what I saw, the car ran into the truck. The car didn't seem to me to make any check before entering the intersection of the two highways. It didn't seem to cut its speed. It didn't slow down at all. The truck seemed to me it was traveling around thirty-five miles an hour, just looking at it. The automobile was traveling between forty-five or fifty, I would say, just looking at it but not knowing. That is my best judgment. I couldn't be exact. When these two vehicles came together, my car was parked right behind the stop sign on the west side of the road. Yes, that would be in about fifteen or twenty feet."
. . .
"The Plaza Express Company truck didn't seem to slacken its speed any before it reached that intersection. I didn't see any signals it gave. I didn't hear any either. It did not change its rate of speed that I could observe. It gave no signals of any kind. The Chevrolet did not give any signals of any kind, either."
Appellant Collier's version of the collision was as follows:
"Q. And was it being driven by a Miss Teague? A. That is who they said was the driver. I couldn't tell who was the driver. The driver of the car did not at any time give me a signal.
"Q. Either by sounding the horn, or any other way? A. No, sir. They did not ever slow down or slacken their speed as they approached that intersection. I was traveling thirty-five miles an hour as I approached the intersection. No, sir, I did not blow my horn. I did not apply my brakes until after the collision."
. . .
"Q. Then for about a mile you could see this car coming, and were you able to judge the speed of it? A. No, sir."
. . .
"Q. And how fast would you say it was going when you got in a position where you could judge? A. I couldn't judge that until just before it struck me. It was practically on top of me, I judge by the impact and all. I was watching this car even before the impact and was watching the one coming from the other direction. The one coming from the other direction had already pulled up and stopped. Yes, sir, it had its lights on and I could see that it had stopped.
"Q. So there was nothing about that car to cause you any alarm? A. Not unless he pulled out in front of me.
"Q. You knew that it was safely parked, and that you could proceed as far as it was concerned? A. No, sir, no car down there was safely parked.
"Q. I didn't understand. A. No car down there is safely parked; they start right across in front of you, when you get right up on top of them. Yes, sir, I was watching the car, too.
"Q. And did you abandon your interest in the car coming from the east, the Teague car, with your watching the car to the west? A. No, sir. I continued to watch the Teague car, too. The Teague car did not drive up and stop. I lost sight of the Teague car when I got behind those trees and that filling station, and the house.
"Q. So for only the short distance there you lost sight of it while it was behind the trees and the filling station, in the southeast corner of the intersection? A. After it came from behind the filling station and trees I was able to see it again."
. . .
"A. No, sir, I never looked at the Teague car any more, because they could see me coming, and I could see them. I looked across at the other car, and back at the Teague car, and by that time they were right into me.
"Q. Then when you directed your gaze from the Teague car to look at the car that was over to the west of the highway, was the Teague car going fast? A. I couldn't tell. I was looking right straight practically at it, when I saw it. I couldn't detect whether it was slowing down or not. The impression they gave me was they never knew that road was there, never slowed down or nothing. My last impression of the Teague car before the crash was that they were not slowing down. Then I put on my brakes just as I got to the intersection; I was sitting in the intersection, practically. I didn't put on my brakes until I got to the intersection, I was practically sitting in the intersection."
As we see it appellant Collier's evidence justifies the inference that he sensed danger, yet, under his own evidence and the evidence of the driver of the parked car, the speed of the truck was not slackened, nor did he give any signal or do anything [291] to avert the on-coming collision. It seems to us that the evidence fully justified the submission of the case to a jury. Collier testified that he could have stopped the truck within a distance of seventy to eighty feet. A mere slackening of the speed of the truck as he approached the intersection may well have avoided the collision.
In each case cited in the dissenting opinion the facts were entirely different, particularly as to the evidence from which an inference could be drawn that the party charged with negligence could have discovered the danger in time to have averted the injury. The cases cited in the dissenting opinion are, Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482, l.c. 484 and Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889, l.c. 899, etc. A number of cases relied on by appellants are: Bashkow v. McBride, 177 S.W.2d 637; Krause v. Pitcairn, 165 S.W.2d l.c. 670, (correct citation, 350 Mo. 339, 167 S.W.2d 74); Lotta v. Kansas City Public Service Co., 117 S.W.2d 296, l.c. 301, 342 Mo. 743; Ziegelmeier v. East St. Louis Suburban Ry. Co., 330 Mo. 1013, 51 S.W.2d 1027, l.c. 1029. We find nothing in these cases contrary to our ruling in this case. The evidence in this case justified an inference that Collier saw and realized that the driver of the Teague car was oblivious of the presence of the truck approaching the intersection in time to have averted the collision. The point must be ruled against appellants.
[2, 3] Other points relied on were fully discussed and reviewed in the opinion of the court of appeals and we will review them briefly. It is urged that the trial court erred in requiring the attorneys for appellants to give the names of the liability insurers they were representing. This was done out of the hearing of the jury. Later the prospective jurors were asked if any one of them had any connection with any of these named insurers. This procedure did not constitute error. The cases cited by the court of appeals so ruled. See Wack v. F.E. Schoenberg Mfg. Co., 331 Mo. 197, 53 S.W.2d 28; Hatton v. Sidman, 169 S.W.2d 91, l.c. 94; Jenkins v. Chase, 53 S.W.2d 21, l.c. 22. Another question arose when the defendants were given the jury list for the purpose of making three challenges. They reported to the court that they could not agree on the challenges to be made. Defendant Teague complained because the court would not give her the right to strike the name of one juror over the objection of the other defendants. The trial court informed the defendants that if they could not agree the clerk would be instructed to call the first twelve names on the list. This procedure was correct because the defendants, by virtue of sec. 720, R.S. Mo. (1939), Mo. R.S.A., must join in the challenges made. See Clark v. St. Louis S.R. Co., 137 S.W. 583, l.c. 588 (2), 234 Mo. 396; Hunt v. Mo. R. Co., 14 Mo. App. 160, l.c. 164.
It is claimed that the petition was not filed within six months and therefore plaintiff's time within which he had a right to file this suit as the husband of the deceased had expired. The injury occurred on September 20, 1941. Suit was filed March 20, 1942. That was within six months. As to computation of time see sec. 655, R.S. Mo. (1939), Mo. R.S.A., and cases cited in notes 175-178; Thompson v. Farmers' Exchange Bank, 333 Mo. 437, 62 S.W.2d 803, l.c. 806 (2-6).
Appellant Teague complained of instruction "9-D" given at the request of the other appellants. It informed the jury in substance that if one, through the negligence of another, was suddenly placed in an emergency and compelled to act instantly to avoid injury, he could not be guilty of negligence if he made a choice and acted, even though the choice made may not have been the wisest. This instruction in no way affected appellant Teague and had no bearing on any issue presented by her. It was not prejudicial to her interest and therefore she was in no position to complain.
The court gave an instruction, at appellant Teague's request, informing the jury that if the Teague car reached the intersection about the same time as the truck then the Teague car had the right of way. After this instruction was read to the jury the court withdrew it and informed the jury why this action was taken. The instruction should not have been given for two apparent reasons: First, under the undisputed evidence the truck reached the center of the roadway before the Teague car; second, there was a stop sign against traffic on route "U" and no such stop sign against traffic on highway 61. The action of the court in withdrawing the instruction was proper.
Appellants, Plaza Express Company and Collier, assigned error to rulings made by the trial court permitting certain remarks to be made by counsel for plaintiff and also [292] by counsel for Teague during the argument to the jury. These arguments and the comment of the court will be found set out in detail in the opinion of the court of appeals. See 177 S.W.2d 517, l.c. 527, 528. It will be found that the remarks of counsel objected to were not of a serious nature and the ruling of the court could not be held to be reversible error because the trial court has some discretion in such matters. Again it will be found that the trial court sustained the major portion of appellants' objections.
Finding no reversible error the judgment is affirmed. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES C., is adopted as the opinion of the court. All the judges concur.