Marble v. Walters

• Citation: 19 Mo.App. 134
• Parties: R. MARBLE, Plaintiff in Error, v. M. WALTERS, Defendant in Error.
• Decision Date: 27 October 1885
• Court: Court of Appeal of Missouri (US)

19 Mo.App. 134

R. MARBLE, Plaintiff in Error,

v.M. WALTERS, Defendant in Error.

St. Louis Court of Appeals, Missouri.

Oct. 27, 1885.

ERROR to the Knox County Circuit Court, BEN. E. TURNER, Judge.

Reversed and remanded.

O. D. JONES, for the plaintiff in error. “The verdict is manifestly against the evidence and the instructions of the court. And the last one given by the court on its own motion, in view of the plaintiff's objections, does him great injustice. There was in fact no evidence to warrant the verdict. The lower court, however, acted on the rule only applicable in this. Reid v. Piedmont Ins. Co., 58 Mo. 429. In case of gross misconduct in this regard (going outside of evidence in argument), this court should reverse a judgment obtained by the party whose attorney should so conduct himself. Brown v. H. & St. J. R. R. Co., 66 Mo. 599.”

LEWIS, P. J., delivered the opinion of the court.

The plaintiff sues under Revised Statutes, section 3922, for penalty and damages on account of the throwing down of his wire fence and leaving the same open, by the defendant. The testimony tended to show that the defendant and Bevil, his brother-in-law, with Bevil's family, were riding in a wagon to visit a sister, and that they cut or broke and drove over the plaintiff's fence in going and returning, and so left it. Several witnesses testified to the defendant's repeated admissions of his participation in the cutting; but he testified a denial of these statements, and that he only advised against the act. The verdict and judgment were for the defendant.

The plaintiff's only claim for a reversal is founded upon the charge of improper conduct of the defendant's attorney in addressing the jury, and a failure by the court to apply the proper corrective. The defendant had offered to prove that his sister was seriously sick, and that a creek was dangerously high on another route, so that it would have been necessary to travel a roundabout way of two or three miles to their destination, while by going through the fence, the distance would be only about one mile. The court excluded this testimony as irrelevant and immaterial. The bill of exceptions recites: “And upon the argument of the cause, the defendant's attorney commenced to argue before the jury upon all their evidence that had been excluded by the court, that is, as to the dangerous condition of the health of defendant's sister, and the high waters of the creek, and its condition, and the condition of the road. To which plaintiff objected and asked the court to stop defendant's attorney. To which the court answered in the hearing of the jury and defendant's attorney, and said: ‘It will necessitate the giving of another instruction; and that those matters are not material.’ And the court proceeded to write and give and did give the following instruction: ‘It is not material as to what was the condition of the roads or streams, or as to the condition of the health of defendant's sister; provided the jury shall find that defendant cut down, or aided in cutting down, and leaving open the fence, as charged.’ And...