Bush v. Anderson

• Decision Date: 18 September 1962
• Docket Number: No. 31007,31007
• Citation: Bush v. Anderson, 360 S.W.2d 251 (Mo. App. 1962)
• Parties: Kathy BUSH, a Minor, by her Next Friend Rosemarie Bush (Plaintiff) Appellant, v. Laverne ANDERSON (Defendant) Respondent.
• Court: Missouri Court of Appeals

Page 251

360 S.W.2d 251

Kathy BUSH, a Minor, by her Next Friend Rosemarie Bush (Plaintiff) Appellant, v.Laverne ANDERSON (Defendant) Respondent.

No. 31007.

St. Louis Court of Appeals, Missouri.

Sept. 18, 1962.

Motion for Rehearing or for Transfer to Supreme Court

Denied Oct. 15, 1962.

Librach, Heller, Byrne & Weber, William P. Byrne, St. Louis, for appellant.

Barnhart & Sommers, Don B. Sommers, St. Louis, for respondent.

SAMUEL E. SEMPLE, Special Commissioner.

This is a suit for damages for personal injuries sustained by plaintiffKathy Bush, as a result of being bitten by a dog owned by defendantLaverne Anderson.A trial was had before a jury which resulted in a verdict and judgment for defendant, from which plaintiff has perfected an appeal to this Court.

A short summary of the evidence presented at the trial reveals that plaintiff, a child approximately three years old, attended a family picnic on July 26, 1960, in company with her motherRosemarie Bush, defendantLaverne Anderson, Mrs. Cora Buss, Mrs. Gladys Koob, and seven other children, six of whom were the children of defendant.Mrs. Buss was the paternal grandmother of plaintiff, Mrs. Koob was a cousin of plaintiff's father, and defendant was the widowed aunt of plaintiff by marriage to plaintiff's deceased uncle.

Following the picnic the entire party drove to defendant's home.Defendant released her Dalmatian dog named Pierre from the basement of her home, and most of the children, including plaintiff, together with the dog went into a bedroom of defendant's home to watch television.Plaintiff was petting the dog when her cousin Mike Bush, a son of the defendant, called the dog to him.Kathy came over and stepped on the dog's foot, and the dog jumped up and bit her right ear, taking off part of the top of the ear.Plaintiff was taken to a hospital and required the services of a plastic surgeon to repair the ear.On one occasion several months prior to the incident involved here, defendant's daughter Susan Wood had stumbled over the dog while chasing a ball and the dog jumped up on her leaving a mark on her ear.Defendant put disinfectant on her daughter's ear and applied a Band-Aid.The evidence was conflicting as to whether the dog at that time bit Susan's ear or scrached it with one of his toenails.

Plaintiff's first contention of error is that the Court erred in overruling plaintiff's Motion for a Directed Verdict at the close of defendant's opening statement.Plaintiff argues that defendant's counsel in his opening statement admitted that defendant's dog had made a prior attack on defendant's daughter and further admitted that defendant's dog bit and injured plaintiff thereby confessing plaintiff's cause of action.The portions of the opening statement referred to were as follows:

'They talk about this vicious dog, but the evidence will show that the only other occasion that the dog has ever done any damage to any of the children was to Susie, the young girl sitting to the left (indicating).She was playing out in the alley, playing ball or something, and the dog jumped up and Susie was scratched behind the ear with his fingernail or toenail.Her mother put a Band-Aid on it and she went back out and played.'

'* * * but the next thing she knew the kids were in the back room with the dog, and Mike will tell you Kathy patted the dog and the dog walked over to Mike, and Mike was petting the dog, and Kathy followed the dog over and stepped on his foot, and that is when the dog nipped her on the ear.The dog reacted, as all dogs do, and nipped her on the ear; and she did, she sustained this injury to her ear, and was taken immediately to St. Anthony's Hospital where she was given this emergency treatment there.'

The plaintiff cites the general rule laid down, in Pratt v. Conway, 148 Mo. 291, 49 S.W. 1028, l. c. 1030, that where counsel in their opening statements, state or admit facts the existence of which precludes a recovery by their client, the court may close the case at once, and give judgment against their client.

The primary purpose of an opening statement is to inform the judge and jury of the nature of the action and defense so as to enable them to understand the case and to appreciate the evidence as it is presented.Hays v. Missouri Pacific Railroad Co., Mo.Sup., 304 S.W.2d 800, l. c. 804, 88 C.J.S. TrialSec. 161a, l. c. 314.Although a court may take a case from the jury at the close of an opening statement by directing a verdict (Pratt v. Conway, supra), this action should only be taken where it clearly and definitely appears from the opening statement that the plaintiff cannot recover or that the defendant has no defense.Such action by the Court is an extreme measure and should be exercised cautiously and only in a clear case.88 C.J.S.TrialSec. 161b, l. c. 318, Hays v. Missouri Pacific Railroad Co., supra.

The remarks of defendant's attorney in his opening statement are not clearcut admissions of all of the essential elements of plaintiff's case leaving defendant without a defense.Defendant's counsel denied that the dog was vicious.The reference to the incident involving the dog jumping on Susie does not constitute an unequivocal admission of the ultimate fact that the fog had vicious propensities.This is nothing more than a statement of what defendant's evidence would show, aimed at contradicting the anticipated evidence of plaintiff showing an attack on Susie by the dog.We therefore conclude that the trial court ruled correctly in overruling plaintiff's Motion for a Directed Verdict at the close of defendant's opening statement.

Plaintiff's next contention is that the trial court erred in overruling plaintiff's objection to defendant attorney's remarks in his opening statement that defendant was a widow with six children at the time of the incident here in question, and also in overruling an objection to the testimony of defendant that she had six children.Plaintiff argues that such remarks in the opening statement and testimony of defendant were irrelevant and were calculated to, and in fact did, create a feeling of sympathy for defendant.

Beginning with the case of Dayharsh v. Hannibal & St. Joseph Railway Co., 103 Mo. 570, 15 S.W. 554, 23 Am.St.Rep. 900, it has been generally held that in a damage suit for personal injuries it is improper to inquire of a plaintiff relating to the number of people comprising his family and to his marital status; the reason behind this rule being that ordinarily such evidence is irrelevant and would only serve to appeal to the sympathy of the jury and thereby enhance the assessment of damages.See10 Mo.Digest, Damages k170.Although the reported cases in Missouri have applied this general rule only where a plaintiff has offered evidence as to family status, it would appear that the rule should apply with equal force where a defendant offers evidence of family status and the number of people comprising his family when such evidence is irrelevant.The general rule declaring evidence of family status or number of people in a family inadmissible does not apply where such evidence is relevant or pertinent to any of the issues raised in the case.Kingsley v. Kansas City, 166 Mo.App. 544, 549, 148 S.W. 170, l. c. 171.Such evidence, even though inadmissible, does not always constitute reversible error where it appears that such evidence has not affected the merits of the action.Daniels v. Banning, Mo.Sup., 329 S.W.2d 647, l. c. 653.

The reference in defendantcounsel's opening statement that defendant was a widow with six children at the time of the incident in question, when considered separate and apart from all the evidence and circumstances presented to the jury in this case, would at first blush appear to be improper.However, when considered against the background of all the evidence in the case relating to defendant's marital status and the size of her family, much of the evil complained of by plaintiff, to-wit: the appeal to the sympathy of the jury, disappears.Plaintiff presented evidence that defendant had been married to plaintiff's uncle, but did not show that the marriage was terminated by death, thus leaving an unfavorable inference that the marriage could have terminated at the fault of defendant.In addition, the defendant testified (without objection by plaintiff) that she had remarried about one month prior to the date of trial.In the light of this evidence, the disclosure that defendant was a widow in the opening statement does not constitute error which affected the merits of this action, such as would require a reversal of the judgment.Daniels v. Banning, supra;Baker v. Thompson-Hayward Chemical Co., Mo.App., 316 S.W.2d 652.

The reference in defendantcounsel's opening statement and defendant's evidence that defendant had six children was relevant for the purpose of showing who was present in defendant's home at the time plaintiff was injured and in detailing the circumstances surrounding the incident.In addition, the circumstance of the keeping of a dog for a considerable time in a home where six children lived was relevant to the issue of whether the dog had vicious propensities which were known to defendant.We therefore conclude that reference in the opening statement and in defendant's evidence as to the size of defendant's family was admissible under the circumstances shown in this case.

Plaintiff also contends that the trial court erred in allowing defendant to put on testimony as to the peaceable character of the dog for the reason that such evidence was irrelevant and immaterial to any issue in the case.Plaintiff concedes that no objection was made at the trial to the admission of this evidence, but argues that it is a material point which greatly affects the merits of the case and urges that this court review this allegation of error under the provisions of Supreme Court Rule 79.04, V.A.M.R.It is well settled that objections to...