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08/09/83 JO ANN GRIFFON AND KENNETH GRIFFON v. JACK

August 9, 1983

JO ANN GRIFFON AND KENNETH GRIFFON, PLAINTIFFS-APPELLANTS,
v.
JACK G. NORTHCOTT, DEFENDANT-RESPONDENT.



From the Circuit Court of the City of St. Louis; Civil Appeal; Judge Michael F. Godfrey.

Before Stewart, P.j., Stephan, Crandall, JJ.

The opinion of the court was delivered by: Stephan

Plaintiffs Jo Ann and Kenneth Griffon appeal from a jury verdict and judgment against them based on a personal injury claim resulting from a motor vehicle collision. We affirm.

On December 23, 1978, at about 10:30 p.m., defendant was driving his Chevrolet automobile south on highway 141 in St. Louis County. Plaintiff Kenneth Griffon was driving north on highway 141 in his 1978 Toyota pickup truck. His wife, a passenger in the truck, is also a plaintiff. At the intersection of highway 141 and the entrance ramp to eastbound Interstate 44, there were flashing electric traffic signals, in addition to islands and separate lanes to enter or exit Interstate 44.

Defendant stopped at the intersection, intending to turn left onto eastbound I-44, and waited for about a minute for oncoming traffic to pass. Thereafter, he observed two approaching vehicles. The first was coming down a small hill in the center lane of northbound 141; the second was about fifty yards behind the first and in the outside northbound lane, which was the lane used for right turns onto I-44. When the first vehicle passed, defendant eased out to make his left turn, while the second vehicle was continuing in the right turn lane. As defendant was halfway through the turn, the second vehicle, plaintiffs' truck, abruptly turned into the center lane and collided with defendant's car. Plaintiffs submitted their case to the jury on the theory that defendant negligently failed to yield the right of way.

Plaintiffs' first point on appeal is that the trial court abused its discretion in failing to declare a mistrial following defense counsel's reference during closing argument to the amount of defendant's insurance coverage. The reference during defendant's argument was as follows:

Mr. Funsch: I'm going to do something that I've never done before. Mr. Willbrand asked you a question during the beginning of this case if any of you had a financial interest - and then he named American National Property and Casualty Company - and it's through that that is insurance in this case. However, there is a limited amount of insurance in this case.

Mr. Willbrand: Your Honor, I think that that is -

Mr. Funsch: I'm going to say there's a $10,000 policy.

Mr. Willbrand: I think this is an improper argument.

The Court: Sustained.

Plaintiffs' request for a mistrial was denied, and plaintiffs elected not to have the jury admonished. Earlier in the trial, defense counsel asked Kenneth Griffon if he knew how much money he was "suing for." Griffon responded, "Do I know how much I'm suing for? Twenty thousand dollars. Because that's the amount of coverage that the defendant has." Defense counsel's request for a mistrial because of the volunteered information concerning the fact of insurance coverage was denied. It is defendant's position on appeal that the unresponsive answer from plaintiff referring to insurance justified his attempt during closing to correct the policy amounts alluded to by plaintiff. Plaintiffs argue that defendant's closing remarks were deceptive and in bad faith as they indicated that either Mr. Griffon had lied as to the amount of the coverage or that he is the type of person "who seeks damages in excess of the limited coverage." As we do not believe the circumstances warranted a mistrial, we rule the point against plaintiffs.

Although injection of such usually irrelevant matters as insurance is error, not every reference constitutes reversible error. Means v. Sears, Roebuck & Company, 550 S.W.2d 780, 787 (Mo. banc 1977); Missey v. Kwan, 595 S.W.2d 460, 465 (Mo. App. 1980). We do not condone defense counsel's obvious determination, regardless of justification, to state the amount of the policy in his closing argument. Nevertheless, it is clear that the trial court acted swiftly and adequately to avert any prejudice that might have otherwise resulted. Moreover, in view of the verdict for defendant, we do not perceive how defendant's injection of the fact of insurance coverage or amount thereof could be held to have influenced the jury against the plaintiffs. With nothing more before us than plaintiffs' speculations as to what the jury might have inferred from counsel's correction in argument of Mr. Griffon's ...


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