Blanford v. St. Louis Public Service Co., 43811
| Decision Date | 08 March 1954 |
| Docket Number | No. 43811,No. 1,43811,1 |
| Parties | BLANFORD v. ST. LOUIS PUBLIC SERVICE CO |
| Court | Missouri Supreme Court |
Lloyd E. Boas and L. F. Stephens, St. Louis, for appellant.
Miller & Landau, St. Louis, for respondent.
The St. Louis Public Service Company, defendant below, has appealed from a judgment entered after the trial court sustained plaintiff's, Cecil E. Blanford's, motion for new trial in an action wherein the jury had returned a verdict for defendant. The action was one praying damages of $11,364, wherein plaintiff sought recovery for alleged loss of services of his then wife, Mary Blanford, alleged to have resulted from injuries claimed to have been sustained by her on July 9, 1945, while she was attempting to alight from one of defendant's buses in the City of St. Louis.
This case has been tried three times. At the first trial on April 17 and 18, 1946, plaintiff recovered a judgment of $2,000. The trial court thereafter sustained the defendant's motion for new trial and plaintiff appealed. The St. Louis Court of Appeals, 199 S.W.2d 887, affirmed the trial court's action in granting defendant's new trial motion, and remanded the cause to the circuit court for new trial. The cause was again retried on March 20, 21 and 22, 1951, but during that trial a motion for continuance was granted and a mistrial declared. The case was again retried on March 2, 3, and 4, 1953. The result was the instant verdict for defendant. As above noted, plaintiff's new trial motion was sustained, but the trial court assigned no ground or reason therefor, and defendant has this time appealed. Neither the plaintiff, Cecil Blanford, nor Mary Blanford, his then wife, testified in person upon the instant trial. Plaintiff lived in Odessa, Missouri, at the time of the last trial. The transcript before us shows that Cecil Blanford's deposition given May 31, 1952, and a transcript of the testimony of Mary Blanford, given upon the first trial of the case on April 17, 1946, were read to the jury in this case.
From the transcript it appears that plaintiff and Mary Blanford were married in 1939, and had a son four years of age; that just before July 9, 1945, they lived at 3842 Washington Street in St. Louis and plaintiff had been employed at McDonald Aircraft; that plaintiff had theretofore been notified to report to Jefferson Barracks on July 9, 1945, for induction into Army service; that a few days prior thereto plaintiff and his wife had gone to Ste. Genevieve, Missouri, to visit their parents for a few days; that on July 9, 1945, he left Ste. Genevieve on an army chartered bus and went direct to Jefferson Barracks and did not leave there until the late evening of July 11, 1945; that Mary Blanford returned by public carrier bus to St. Louis on July 9, 1945; and that when Mary Blanford was a passenger on defendant's bus on July 9, 1945, at Spring and Grandel, in St. Louis, she was injured by the premature starting of the bus as she was alighting therefrom;
That late on July 11, 1945, when plaintiff reached his home in St. Louis he found his wife in bed 'pale as a sheet' with blood all over the bed; that plaintiff stayed there that night, but left about four o'clock the next morning and returned to Jefferson Barracks; that two days later he spent another night at his home; his wife was then some better, but he had to leave again early the next morning to return to Jefferson Barracks; that he was then moved to Camp Fannin, Texas, and next saw his wife in November, 1945, when he spent five days with her at her mother's home in Ste. Genevieve; that she then treated him with indifference; that plaintiff was then sent by the Army to Camp Funston, then to Newport News, then to France, and later to Germany; that while he was overseas, Mary Blanford secured a divorce from plaintiff on May 29, 1946; that plaintiff never saw Mary Blanford after his five day furlough in November, 1945, until after the divorce, and after his discharge from the Army in 1946; that on June 20, 1946, and only twenty days after the divorce from plaintiff, Mary Blanford was married to Joseph M. Bahr; that plaintiff remarried in November, 1947, and that marriage ended in divorce; plaintiff later remarried the second time in November of 1949.
The testimony of Mary Blanford, as given at the 1946 trial and as read in this case, tended to establish that at the time of the bus accident on July 9, 1945, she was pregnant, but that no one knew she was pregnant and she had had no medical attention therefor before July 9, 1945; that she had a miscarriage while at home and alone in the bathroom a day or so after the fall but did not tell anyone until the following day; that she had theretofore suffered a previous miscarriage in 1944; that she had medical attention for her condition following the bus accident of July 9, 1945. The bill for medical attention, about a hundred dollars, was unpaid and action thereon was barred by limitations at the time of trial.
Under our Rule 1.10, 42 V.A.M.S., when the trial court grants a new trial without specifying of record the ground or grounds on which the new trial is granted, the presumption shall be that the trial court erroneously granted the new trial motion and the burden of supporting the trial court's action is placed upon respondent. The onus on this appeal is therefore upon the plaintiff.
It is first contended here by plaintiff that the trial court properly sustained plaintiff's motion for new trial because of the aggregate prejudicial effect of a number of trial incidents.
Plaintiff complains of the misconduct of defendant's trial counsel in quite a number of trial incidents, which occurred during the arguments to the jury, and which plaintiff's brief asserts had an 'aggregate prejudicial effect' upon the jury. The matters complained about have all been minutely and carefully examined. The analysis of each of them in the light of the background presented by the trial record, the motion of plaintiff for a new trial and plaintiff's brief eliminates most of them as unbelievably inconsequential. The plaintiff's charges with respect to most of them are general in nature and in only a few instances does plaintiff point to any precise place in the record where he contends any untoward or prejudicial incident occurred. But we have carefully read and re-read the entire transcript, and the argument of both counsel. As to the few instances pointed out by plaintiff, an examination of the transcript compels the conclusion that the matters complained of were largely retaliatory in nature and justified under the circumstances of the case. Examination of the transcript of the argument discloses that when objections were made the court correctly ruled thereon, usually in plaintiff's favor, and the matter then under consideration was carefully and correctly explained by the court to the jury.
In one incident of which plaintiff now complains counsel for defendant in his argument stated to the jury No objection or motion was then directed at any of the just above quoted. After the argument of defendant's counsel had been later concluded, and out of the jury's presence, plaintiff's counsel undertook to make an objection into the record that defendant 'had no right to tell them (the jury) what had happened in the trial of the wife's case.' That objection came too late. In the course of the objection plaintiff's counsel stated: 'We do not ask for a new trial (mistrial) at this time because that would inflict a penalty on the plaintiff in requiring him to go through the delay of a new trial, but we do express and record our objections to that argument at this time.' Not only was the purported objection untimely, but plaintiff asked no action whatever of the trial court, no ruling by the court thereon, no statement by the court to the jury with respect thereto and no admonishment by the court of defendant's counsel.
In plaintiff's brief filed here there is no error assigned as to the above on the part of the trial court, as...
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