Counts v. Thompson

• Decision Date: 11 July 1949
• Docket Number: 40944
• Citation: 222 S.W.2d 487,359 Mo. 485
• Parties: Pless Counts, Respondent, v. Guy A. Thompson, Trustee, Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

222 S.W.2d 487

359 Mo. 485

Pless Counts, Respondent, v. Guy A. Thompson, Trustee, Missouri Pacific Railroad Company, a Corporation, Appellant

No. 40944

Supreme Court of Missouri

July 11, 1949

[Copyrighted Material Omitted]

Appeal from Circuit Court of City of St. Louis; Hon. William B Flynn, Judge.

Affirmed (subject to remittitur).

SYLLABUS

Plaintiff was injured in a switching movement when the engineer failed to observe his signals and ran over a lighted fusee. Plaintiff's instructions on these issues and on the burden of proof and the measure of damages are sustained. Rejection of evidence as to experience with artificial legs was within the discretion of the trial court. Sustaining an objection to an improper jury argument was sufficient action. The remittitur practice where there is an excessive verdict does not violate constitutional rights and may be applied in an action under the Federal Employers' Liability Act. A verdict of $ 165,000, reduced in the trial court to $ 140,000, was still excessive by $ 60,000.

Thomas J. Cole, Oliver L. Salter, Ragland, Otto, Potter & Embry and Leon P. Embry for appellant.

(1) The trial court erred in not granting appellant's requests that the jury be discharged on account of the inquiry addressed to the court by the jury, viz., "What is the maximum fee or percentage basis allowed by Missouri law to plaintiff's counsel?" because the inquiry shows improper conduct on the jury's part in considering an element wholly improper and prejudicial to appellant, and the verdict should be regarded as tainted thereby. The size of the verdict in this case ($ 165,000) bespeaks anxious judicial scrutiny. Chlanda v. Transit Co., 213 Mo 244, 112 S.W. 249. (2) The foregoing inquiry was sent by the jury to the court; it was in the words above quoted; and was admitted by the jury, in open court, to be its inquiry. No affirmative showing is required that the subject matter of the inquiry influenced the verdict. The very nature of the inquiry was such that the jury should have been discharged. Texas & P. Ry. Co. v. Van Zandt, 44 S.W.2d 950; St. L.-S.W. Ry. Co. v. Lewis, 5 S.W.2d 765; 64 C.J., p. 1021, sec. 811; Nocero v. Denitto, 208 N.Y.S. 601; McLeod v. Ry. Co., 71 Iowa 138, 32 N.W. 246; City of Gallatin ex rel. v. Murphy, 217 S.W.2d 400. The jury having inquired, after retiring to deliberate about the potential amount of respondent's attorney fees, the trial court erred in calling the jury in, and orally instructing it that there was no law regulating that matter and that it was a matter of contract, and in then and there calling the jury's attention only to Instructions XI and VI, because instructions must be in writing and it was, therefore, error to give the oral instructions. Sec. 105, Civil Code of Missouri; Fitzsimmons v. Commerce Trust Co., 200 S.W. 437; Boyd v. Pennewell, 78 S.W.2d 456. (3) Such oral instructions prejudicially emphasized the fact that there is no maximum for attorney fees and, since the only written instructions to which the court referred the jury, viz., Instructions XI and VI, were instructions dealing only with the amount of damages, if any, the court's reference thereto prejudicially emphasized them, presupposed a verdict for damages, and naturally tended to indicate to the jury that the court presupposed and assumed that respondent was entitled to, and would get, a verdict for damages. A trial judge should, at all times, maintain an impartial and neutral attitude in his rulings and his demeanor so as not to influence the jury. Kribs v. Jefferson City Light, H. & P. Co., 215 S.W. 762; Clear v. Van Blarcum, 241 S.W. 81; Vaughn v. May, 9 S.W.2d 156; Hertzman v. Drazen, 253 S.W. 431. (4) The nature of the occurrence and of the oral instructions given by the court was such that it cannot be determined that no prejudice to appellant resulted therefrom. Therefore, the same constituted reversible error. Hartgrove v. Chicago, B. & Q. Railroad Co., 358 Mo. 971, 218 S.W.2d 557. (5) The trial court erred in refusing to permit appellant to use one Raymond Ikemeyer as a witness, and in refusing to permit appellant to show by Raymond Ikemeyer what his experience with artificial limbs was. Testimony is not to be excluded, on the grounds of irrelevancy and immateriality, because it may be inflammatory but only if its tendency is to draw the jury's attention away from the issues to be resolved. Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646; Luechtefeld v. Marglous, 151 S.W.2d 710. (6) This is not a situation wherein appellant undertook to produce another double amputee as an exhibit of a condition like respondent's and to show that the former's condition was the result of some other cause, as in -- Moss v. May Dept. Stores Co., 31 S.W.2d 566. (7) The purport of respondent's evidence and of his counsel's examination of witnesses was obviously intended to build up the impression that no one -- not just the respondent -- with both legs off above the knees, could very successfully use artificial limbs, and that question thereby became and was a material one to be resolved by the jury, in evaluating respondent's injuries, in event of a plaintiff's verdict. Being material on that question, Mr. Ikemeyer's testimony could not properly be excluded even if it was, in fact, incompetent on some other ground or grounds. In re Jamison's Estate, 202 S.W.2d 879; Johnson v. Minihan, 355 Mo. 1208, 200 S.W.2d 334; Rentfrow v. Thompson, 348 Mo. 970, 156 S.W.2d 700. (8) Evidence of even doubtful competency should go to the jury for its evaluation. Luechtefeld v. Marglous, 151 S.W.2d 710; 20 Am. Jur., p. 244. (9) The trial court erred in not sustaining appellant's request to discharge the jury because of the argument of respondent's counsel to the jury. It is always improper for counsel to indicate to the jury that he knows something not revealed by the evidence. Mooney v. Terminal Railroad Assn., 353 Mo. 1080, 186 S.W.2d 450. (10) The argument was calculated to indicate to the jury that counsel knew that, no matter how small the verdict might be, the defendant would nevertheless appeal -- all of which would tend to irritate the jury against appellant and arouse the jury's animosity toward appellant. Arguments, likely so to result, are reversible error. Walsh v. Terminal R. Assn., 353 Mo. 458, 182 S.W.2d 607; Dodd v. M., K. & T.R. Co., 353 Mo. 799, 184 S.W.2d 454. (11) The matter of appeal or no appeal was not a proper matter for the jury's consideration. Stepp v. Texas & P. Ry. Co., 20 S.W.2d 324. (12) The trial court erred in giving respondent's Instruction VII. Respondent's damages, if any, were subject to proportionate reduction because of any contributory negligence. 45 U.S.C.A., Sec. 53. (13) It was error for the court, by the phraseology of Instruction VII, to exclude the evidence offered by respondent from the jury's consideration, and to restrict the jury's consideration to appellant's evidence, on the issue of contributory negligence. Barr v. Mo. Pac. R. Co., 37 S.W.2d 927; Chaar v. McLoon, 304 Mo. 238, 263 S.W. 174; Trower v. M., K. & T.R. Co., 347 Mo. 900, 149 S.W.2d 792; Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30; Murray v. Mo. Pac. Ry. Co., 101 Mo. 236, 13 S.W. 817; Cook v. Mo. Pac. Ry. Co., 94 Mo.App. 417, 68 S.W. 230. (14) Said instruction, by use of the word "convinces", erroneously imposed upon appellant the burden of proving contributory negligence beyond a reasonable doubt. It is error for an instruction to convey the idea that sustaining the burden of proof means proving beyond a reasonable doubt. Seago v. N.Y. Central R. Co., 349 Mo. 1249, 164 S.W.2d 336. (15) The trial court erred in giving respondent's Instruction I because independent of appellant's rules 11 and 11 (a), there was no basis for hypothesizing, as said instruction did, a duty to stop and extinguish a burning fusee and proceed at restricted speed. If the instruction be said to predicate a right of recovery on a hypothesized violation of either or both of said rules, it was error to give it because said rules were obviously for the protection of appellant's equipment, and not for respondent's protection, and respondent, therefore, would have no right of recovery based on any hypothesized violation thereof. Chesapeake & O.R. Co. v. Mihas, 280 U.S. 102, 50 S.Ct. 42, 74 L.Ed. 207; Thompson v. Downey, 78 F.2d 487; Osment v. Pitcairn, 349 Mo. 137, 159 S.W.2d 666. (16) If the instruction did not predicate a right of recovery on hypothesized rule violations, and apparently it did not, it was for the jury to say whether or not the hypothesized acts, if found, were negligence. Ramsouer v. Midland Valley R. Co., 135 F.2d 101; Jackson County, S.D., v. Dufty, 147 F.2d 227; Mescall v. W.T. Grant Co., 133 F.2d 209; Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045; McCollum v. Winwood Amusement Co., 332 Mo. 779, 59 S.W.2d 693; Lithegner v. St. Louis, 125 S.W.2d 925; Yerger v. Smith, 338 Mo. 140, 89 S.W.2d 66; Ducoulombier v. Baldwin, 101 S.W.2d 96. (17) And by telling the jury that "then you may find the defendant guilty of negligence," it erroneously commented on the evidence and invaded the province, and function, of the jury. Yerger v. Smith, supra; Swain v. Anders, supra; McCollum v. Winwood Amusement Co., supra; Lithegner v. St. Louis, supra; Ducoulombier v. Baldwin, supra; Ramsouer v. Midland Valley R. Co., supra; Jackson County, S.D., v. Dufty, supra; Mescall v. W.T. Grant Co., supra. (18) The trial court had no right to tell the jury that, upon making certain other findings, it might find that appellant was guilty of negligence. Chouquette v. Barada, 28 Mo. 491; Kennedy v. Phillips, 319 Mo. 573, 5 S.W.2d 33; Counts v. Coca-Cola Bottling Co., 149 S.W.2d 418. (19) The instruction erroneously left the jury free to speculate concerning the facts...