Finkle v. Western Auto. Ins. Co.
| Decision Date | 08 April 1930 |
| Citation | 26 S.W.2d 843,224 Mo.App. 285 |
| Parties | ROSE FINKLE, GARNISHER, RESPONDENT, v. THE WESTERN AUTOMOBILE INSURANCE COMPANY, FORT SCOTT, KANSAS, GARNISHEE OF HARRY GRUVERMAN AND JOSEPH GRUVERMAN, COPARTNERS, DOING BUSINESS UNDER THE STYLE AND FIRM NAME OF JOSEPH GRUVERMAN & SON BAKERY, APPELLANT. [*] |
| Court | Missouri Court of Appeals |
BENNICK
ON REHEARING.
BENNICK C.--A motion for rehearing has been filed by learned counsel for the garnishee in which they question the propriety of our opinion in two principal respects: First, that we have approved certain prejudicial argument to the jury on the part of plaintiff's counsel, and the erroneous ruling of the lower court upon objection thereto; and, second, that we have misconceived and misstated the evidence, particularly in respect to whether or not defendant Joseph Gruverman was carrying a card from the bakers' union when he departed from St. Louis for his destination in the East.
The complaints about the argument of plaintiff's counsel have now simmered down to two alleged improper remarks, one of which was that Teasdale knew that the Gruvermans could be found, and the other, that he had withdrawn from the case when he might have asked for a continuance, and have found the defendants; that the defendants were only his nominal clients; and that he was looking after the interests of his actual client, the insurance company, with the design of getting rid of the claim in that way. The ruling of the trial judge in each instance was merely that he would let the statement stand, though in disposing of the objection to the last remark, he did venture the suggestion that Teasdale would be at liberty to answer the argument.
Now counsel for the garnishee not only take the position that the argument of their adversary, considered along with what they claim was the approval given it by the trial judge, should have worked a reversal of the judgment, but also that in holding otherwise, we have departed from the rules heretofore laid down in the controlling decisions of this and the Supreme Court upon the subject of appellate interference with the ruling of a trial court on objections to alleged improper argument of counsel.
In our principal opinion we said that the court was guilty of no judicial indiscretion, inasmuch as it was as quick to repudiate the bad argument as it was to uphold the good; and after a full consideration of counsel's motion for a rehearing, we are still of the same thought. In other words, we consider the remarks of plaintiff's counsel which are now under scrutiny as having been directed to a fair and legitimate matter of comment, subject to answer by counsel for the garnishee in argument of like kind and character, as the lower court held.
The prime point in the case under the pleadings, evidence, and instructions, and the one to which all the argument seems to have been directed, was whether the garnishee had used reasonable diligence to ascertain the whereabouts of the Gruvermans, and whether it had disclaimed liability, and allowed default judgment to go against them, in good faith. Obviously the remarks of plaintiff's counsel had to do with this very issue, and he was entitled in a proceeding of this character, even though his language may have been somewhat extravagant, to minimize his opponent's efforts, question his diligence, and point out to the jury the identity and interest of his real employer in the damage suit, with his opponent equally entitled to address himself in reply to the identical matter.
It is also of significance that the learned trial judge took no sides in the matter, and said nothing which was in anywise calculated to lend his personal approval to the argument, but simply held in effect that the argument was directed to an open question in the case, which both parties were at liberty to discuss, and which the jury as the arbiters of fact would finally be called upon to determine for themselves. We see no misconception of the law in such a ruling, and hence are constrained to adhere to the view heretofore expressed that error was not committed.
As to the charge that we have misstated the evidence in support of plaintiff's point that defendant Joseph Gruverman had a union card when he left St. Louis, we simply quote from the testimony of garnishee's own witness, Kramer, as follows:
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