Beer v. Martel

• Decision Date: 31 December 1932
• Docket Number: 30312
• Citation: 55 S.W.2d 482,332 Mo. 53
• Parties: Louis W. Beer and William Reimann, as Executors of the Estate of Herman L. Beer, v. Charles E. Martel, Appellant
• Court: Missouri Supreme Court

55 S.W.2d 482

332 Mo. 53

Louis W. Beer and William Reimann, as Executors of the Estate of Herman L. Beer, v. Charles E. Martel, Appellant

No. 30312

Supreme Court of Missouri

December 31, 1932

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Affirmed.

Fred H. Blades and Allen, Moser & Marsalek for appellant.

(1) Since the record shows that defendant's counsel, in his argument to the jury, was not permitted to make, and did not make, statements of fact outside of the record and not based upon the evidence, over objections of plaintiff's counsel, as alleged in the fifteenth ground of the motion for a new trial, but that the only argument to which objection was made and overruled was properly based upon evidence given before any objection was made thereto, without any motion to strike out the same, the action of the trial court in granting a new trial on such ground of the motion is unsupported by the record and wholly unwarranted. Manthey v. Kellerman Contracting Co., 311 Mo. 147; Wilkinson v. Wilkinson, 8 S.W.2d 77; Herdler v. Buck's Stove & Range Co., 136 Mo. 3; Quinn v. Van Raalte, 276 Mo. 71; Kersten v. Hines, 283 Mo 623, 311 Mo. 156. (2) Alleged improper remarks of counsel in argument, to which no specific objection is made at the time constitute no ground for granting a new trial. And if objection is made and in effect sustained, and no further action is requested of the trial court, e. g., that counsel be rebuked or that the jury be discharged, the awarding of a new trial on the ground of such alleged improper remarks cannot be sustained. Wilkinson v. Wilkinson, 8 S.W.2d 79; Torreyson v. United Rys. Co., 246 Mo. 696; Cullen v. Johnson, 29 S.W.2d 49; Dittmeier Real Estate Co. v. So. Surety Co., 289 S.W. 877; Edwards v. Smith, 286 S.W. 428; Ingraham v. Postum, 260 S.W. 773. (a) In order for alleged improper remarks of counsel to warrant the granting of a new trial, objection must be made at the time of their occurrence. It is too late to object for the first time in the motion for a new trial. Empire Plow Co. v. Berthold & Jennings Lumber Co., 237 S.W. 137; Reynolds v. Met. St. Ry. Co., 180 Mo.App. 138; State ex rel. Hostes v. Branch, 115 Mo. 622; Muirhead v. Hannibal & St. Joseph Railroad Co., 31 Mo.App. 578; Skaggs v. Gibson, 29 Mo.App. 612; Herdler v. Buck's Stove & Range Co., 136 Mo. 3. (3) The action of the trial court in sustaining the motion for a new trial on a particular ground assigned therein, necessarily had the effect of overruling all other grounds of the motion. Dietrich v. Cape Brewery & Ice Co., 315 Mo. 507; Daffron v. Modern Woodmen, 190 Mo.App. 303; Ziegler v. United Rys. Co., 220 S.W. 1016; Morgeneier v. Dairy Co., 220 S.W. 1009; Buehler v. Wagener Paint & Glass Co., 231 S.W. 283; Thomas v. Modern Woodmen, 218 Mo.App. 10. (4) Where the motion for a new trial is not acted upon during the term at which the judgment was rendered and the motion was filed, the court, at a succeeding term, has no power or discretion to grant a new trial except upon a ground or grounds specifically set up in the motion. Gray v. Mo. Lbr. & Mining Co., 177 S.W. 596; Inzerillo v. Chicago, B. & Q. Railroad Co., 35 S.W.2d 44; Midwest Natl. Bank & Trust Co. v. Parker Corn Co., 211 Mo.App. 420; Marsala v. Marsala, 288 Mo. 501; State ex rel. Conant v. Trimble, 311 Mo. 128. (5) The granting of a new trial on a ground not borne out by the record constitutes an abuse of the trial court's discretion. And especially will such order not be allowed to stand where, upon a consideration of the whole record, it appears that the verdict was for the right party, that no good cause, in fact, exists for the granting of such new trial, and that justice demands that the verdict be reinstated. Manthey v. Kellerman Contracting Co., 311 Mo. 147; Quinn v. Van Raalte, 276 Mo. 71; Herdler v. Buck's Stove & Range Co., 136 Mo. 3; Wilkinson v. Wilkinson, 8 S.W.2d 77; Kersten v. Hines, 283 Mo. 623.

Buder & Buder and G. A. Buder, Jr., for respondents.

(1) Where a party to a cause of action for personal injuries dies subsequent to the institution of the suit and it is revived in the name of his personal representative, the liability and the measure of damages is the same as if said death had not intervened. Sec. 3280, R. S. 1929; Sec. 4231, R. S. 1919; Longan v. Kansas City Rys. Co., 253 S.W. 761. (2) Where a motion for new trial has been sustained and an inadequate reason given for the order, the ruling will not be reversed by an appellate court if there are good reasons appearing on the record for granting a new trial, other than the one assigned by the trial court. Green v. Terminal Railroad Assn., 211 Mo. 29; Craton v. Huntzinger, 187 S.W. 53; Emmons v. Quade, 176 Mo. 29; Manthey v. Kellerman Contracting Co., 311 Mo. 155; Stanard Milling Co. v. White Line Central Transit Co., 122 Mo. 270. (3) Even though evidence may be material for one purpose and upon one issue in a case, nevertheless it is reversible error to permit counsel to employ such evidence in their argument for another and different purpose upon an issue to which it is not material. Wells v. Wells, 144 Mo. 203. (4) It is harmful error to admit in a damage action evidence that a defendant does not carry liability insurance, and this is true even though the jury upon voir dire examination may have been interrogated concerning their connection with insurance companies, and even though a codefendant may be protected by insurance. Clayton v. Wells, 26 S.W.2d 971; Fox v. Mo. Jobbing House, 32 S.W.2d 134; Malone v. Small, 291 S.W. 165. (5) It is highly improper for attorneys in their argument to the jury to make statements of fact outside of the record and not based upon the evidence. Ensor v. Smith, 57 Mo.App. 595; Wells v. Wells, 144 Mo. 203; Torreyson v. United Rys. Co., 144 Mo.App. 639; Jackman v. Railway Co., 206 S.W. 245; Massengale v. Rice, 94 Mo.App. 433; Williams v. Columbia Taxicab Co., 241 S.W. 972; Stroud v. Doe Run Lead Co., 272 S.W. 1082; Bowles v. Wabash Ry. Co., 271 S.W. 853; Kull v. Ford Motor Co., 261 S.W. 736; Smith v. St. Louis S.W. Ry. Co., 31 S.W.2d 107; Haake v. Dulle Milling Co., 168 Mo.App. 180. And where the argument of matters outside of the record is calculated to create sympathy in favor of one of the parties or to stimulate prejudice against the other, the failure to adhere to the admissible evidence is rendered even more objectionable. Haynes v. Trenton, 108 Mo. 133; Mahner v. Linck, 70 Mo.App. 388; Bishop v. Hunt, 24 Mo.App. 377; Fatham v. Tumilty, 34 Mo.App. 240. (6) While in certain cases the failure to exclude improper argument of counsel may be cured by the jury returning a verdict in favor of the right party, that is not true in a close case where the verdict may have been influenced by the improper remarks. In such instances the judgment will be set aside. Torreyson v. United Rys. Co., 144 Mo.App. 639; Rigby v. St. Louis Transit Co., 153 Mo.App. 336. (7) In cases where the motion for a new trial has been sustained by the court below, the appellate court will not reverse the order because of the absence of timely objections and exceptions, even though it would not award a new trial had the defeated party taken the appeal after his motion had been overruled. Schuette v. St. Louis Transit Co., 108 Mo.App. 26; Richter v. United Rys. Co., 145 Mo.App. 16; Nulton v. Croskey, 111 Mo.App. 22; Noren v. Am. School of Osteopathy, 2 S.W.2d 218; Owens v. Railway Co., 201 S.W. 550. (8) Only where there is no evidence at all to support a verdict and judgment in favor of the respondent will the appellate court reverse an order granting a new trial. The order awarding a new trial will be sustained where the evidence concerning the material issues is conflicting and there is sufficient proof to warrant and sustain a verdict in favor of the losing party. Cullison v. Wells, 297 S.W. 374; Met. L. & Z. Mining Co. v. Webster, 193 Mo. 364; Fitzjohn v. St. Louis Transit Co., 183 Mo. 80; Bohle v. Mercantile Co., 114 Mo.App. 441; Cunningham v. Doe Run Lead Co., 4 S.W.2d 806; Schultz v. Met. St. Ry. Co., 161 Mo.App. 578; Hawver v. Springfield Traction Co., 154 Mo.App. 456; Warner v. Michel, 143 Mo.App. 135; Akin v. Hull, 277 S.W. 964; Farmers' State Bank v. Miller, 300 S.W. 838; Bell v. Bell, 20 S.W.2d 290. (9) Only in a case of flagrant abuse of sound judicial discretion by the trial court will the appellate court reverse an order granting a new trial. Bright v. Wheelock, 20 S.W.2d 697; Stafford v. Ryan, 276 S.W. 637; Zimmer v. Daugherty, 32 S.W.2d 767; Gaston v. St. Louis Pub. Serv. Co., 20 S.W.2d 560; Travis v. Means, 214 S.W. 240; Ismert-Hincke Milling Co. v. Spaghetti Mfg. Co., 243 S.W. 410; Hayward v. Ham, 29 S.W.2d 246.

OPINION

Frank, P. J.

This suit was brought by Herman L. Beer to recover damages for alleged personal injuries. Beer died before the case was tried in the circuit court and the cause was revived in the name of respondents as executors of his estate. The trial resulted in a verdict for defendant. On motion of plaintiffs the verdict was set aside and a new trial granted. Defendant appealed.

The verdict was rendered at the February Term, 1929. At the same term and within four days after the verdict, plaintiff's motion for new trial was filed. At the following October Term, 1929, plaintiff's motion for new trial was sustained on the fifteenth ground thereof which reads as follows:

"Because the court erred in permitting the defendant's attorney, in his argument to the jury, over the objection of plaintiffs' counsel to make statements of fact outside of the record and not based upon the evidence."

During the term at which a verdict is rendered, circuit courts have inherent power to set the verdict aside independent of the filing of a...