Davis v. City of Independence

• Decision Date: 11 July 1966
• Docket Number: No. 51915,51915
• Citation: 404 S.W.2d 718
• Court: Missouri Supreme Court
• Parties: Blanche Leone DAVIS, Respondent, v. CITY OF INDEPENDENCE, Missouri, a Municipal Corporation, Appellant.

Page 718

404 S.W.2d 718

Blanche Leone DAVIS, Respondent, v. CITY OF INDEPENDENCE, Missouri, a Municipal Corporation, Appellant.

No. 51915.

Supreme Court of Missouri, En Banc.

July 11, 1966.

Walter A. Raymond, Kenneth C. West, and Raymond, West & Cochrane, Kansas City, for respondent.

S. Ralph Stone, City Counselor, Thomas D. Cochran, Asst. City Counselor, James S. Cottingham, City Counselor, Thomas D. Cochran, Asst. City Counselor, Independence, for appellant.

EAGER, Judge.

This case was transferred from the Kansas City Court of Appeals by order of this court. It is therefore here as though upon an original appeal; it involves injuries from a fall on a public sidewalk in Independence. The Court of Appeals reversed a judgment for plaintiff in the amount of $6,000 and remanded the case, solely on account of statements made in the argument of plaintiff's counsel which it held to be improper. No point is made by defendant of the sufficiency of the evidence for submission.

On July 17, 1962, at about 2:30 p.m., a clear, hot day, plaintiff was walking east on the sidewalk at 120 E. Maple in front of the Automotive Supply Company, not far from the public square. The sidewalk sloped slightly downward to the east. A pickup truck of the Automotive Supply Company was parked in the driveway leading into that place; the driveway sloped downward across the sidewalk to the street level. The truck blocked the sidewalk, so plaintiff stepped out into the street, walked behind the truck until she had passed it, turned to her left (north) and walked beside the truck until she reached the sidewalk; she then started east again and, on approximately her second step, stepped into a holde and fell. We shall mention her injuries later, but not in detail. Various photographs of the sidewalk, the driveway, and the hole were offered and received in evidence. A clump of grass was growing out of the hole, and the grass was variously described as from one-half inch to two inches in height. The hole was described as about seven inches 'wide' and one and one-half inches deep, after the grass was removed. Plaintiff was familiar with the locality, worked at a location just east of the Automotive Supply, and traveled the sidewalk frequently; but not, she said, with a truck blocking the driveway.

We are not concerned with the question of contributory negligence here. Plaintiff testified that the sidewalk at that point was then in a shadow, that she was looking generally in front of her as she normally did, but that she did not see the hold or the grass until after she had fallen. The partners operating the Automotive Supply Company were also made defendants, but their motion for a directed verdict was sustained at the close of plaintiff's evidence, and no appeal was taken from that order.

In his closing argument counsel for plaintiff stated that the defendants had plaintiff examined by Dr. (Nickolas) Pickard and that 'If the plaintiff's statement and the statement of the good mother and the daughter and the injuries and suffering was incorrect, don't you suppose that Dr. Pickard would have been here to tell you after making that examination at their request?' This statement was objected to, and motions to instruct the jury to disregard it and to discharge the jury were made and overruled. In fact, the matter had been discussed with the court and its ruling determined before the argument. The chronology of events was as follows: just before trial it was developed, presumably in chambers, that 'there has been but one examination by the defendants' and that defense counsel's 'present intent' was to use 'the X-ray man, too.' Dr. Pickard's name was not specifically mentioned. In the voir dire plaintiff's counsel told the members of the panel that 'defendants say they will produce Dr. Nickolas S. Pickard * * *' and asked if any one knew him; one or two did. In the opening statement plaintiff's counsel stated that plaintiff 'was examined at the defendant's request by Dr. Fitzgerald, who, I presume, will be here, * * *' It may well be that counsel intended to say or possibly said, 'Dr. Pickard,' but we do not change transcripts in such particulars. Dr. Pickard did not appear as a witness, and there was no mention whatever of his name in evidence. After the close of all the evidence, counsel for the City asked (in advance) that plaintiff's counsel be precluded from commenting on the nonproduction of the doctor because there was no evidence of any examination by him. Thereupon a long colloquy ensued, counsel for plaintiff called attention to the 'pretrial' discussion and the voir dire, and offered (to the court, not for the jury) a copy of the doctor's report; the court refused to receive the exhibit, stated that it thought it had been 'stipulated' that Dr. Pickard had examined the plaintiff, and refused to preclude comments on his nonproduction. The case was not reopened for further evidence. Counsel for plaintiff seek also to buttress their position by pointing out indirect admissions in the colloquies and objections to the effect that that had been such an examination.

On these facts we have determined that the argument was improper, but we further find that it was not prejudicial. The Court of Appeals did not consider the latter phase of the question. It is almost axiomatic that arguments of counsel must be based upon the evidence. Wartenbe v. Car-Anth Mfg. & Supply Co., Mo.App., 362 S.W.2d 54; Faught v. Washam, Mo., 329 S.W.2d 588; Reese v. Illinois Terminal R. Co., Mo., 273 S.W.2d 217. Statements made by counsel, upon the voir dire examination or otherwise, are not evidence. Wilson v. Motors Ins. Corp., Mo.App., 349 S.W.2d 250; Kettler v. Hampton, Mo., 365 S.W.2d 518. Defendant cites Kettler v. Hampton, Mo., 365 S.W.2d 518, and Murphy v. Tumbrink, Mo.App., 25 S.W.2d 133, as holding, under similar circumstances, that such an argument was improper. It will be unnecessary to discuss those cases, as we find here that it was. We need not analyze in detail all of the statements and colloquies that occurred between court and counsel. The court more or less assumed that the parties had agreed that Dr. Pickard had examined plaintiff at the request of all or some of the defendants; perhaps counsel on both sides so understood. But the fact remains that there was no evidence before the jury of that fact or of the examination. If a stipulation is to be used as a basis for the jury's consideration it should be introduced in some manner before the jury. As already stated, the argument before the jury on this record was improper.

Plaintiff received a verdict of $6,000. Her injuries were rather severe, chiefly to her left elbow; it was necessary to operate on the elbow three or four months after the injury and remove a part of the head of the radius. There was substantial evidence, objective and subjective, of permanent injury and of resulting disabilities. In view of the size of the verdict, we cannot find that the argument complained of had any prejudicial effect upon the amount of damages, and indeed defendant does not make any point of excessiveness. In such situations it has been held that neither improper argument nor improper evidence should be held prejudicial. Bennett v. Kitchin, Mo., 400 S.W.2d 97, 104; Sparks v. Auslander, 353 Mo. 177, 182 S.W.2d 167; Bobos v. Krey Packing Co., 323 Mo. 224, 19 S.W.2d 630. We consider also the discretion vested in and exercised by the trial court when it overruled the motion for new trial, for the same complaint of the argument was specifically raised there. Defendant asserts that, aside from the amount of the verdict, the argument here may have affected the question of liability, in that it placed upon defendant 'a stigma of guilt,' based upon its nonproduction of the doctor. The statements of counsel in argument were not inflammatory in nature; he merely said that if the other evidence of plaintiff's condition were not true,--'* * * don't you suppose that Dr. Pickard would have been here * * *?' Defendant produced no evidence of plaintiff's condition, leaving plaintiff's evidence uncontradicted; the argument, in fact, added little to what the jury already knew. The suggestion of defendant that this argument prejudicially affected the merits is 'far-fetched,' to say the least; in the large number of cases considering the general subject of prejudice, few seem to have even mentioned that possibility. In the case of State ex rel. St. Louis-San Francisco Ry. Co. v. Cox et al., 329 Mo. 292, 46 S.W.2d 849, 852 et seq., it appears that the first opinion of the Court of Appeals mentioned such a possibility in reversing the judgment; on rehearing, it reversed itself and affirmed the judgment, necessarily denying any such contention of prejudice. On certiorari, this court specifically found that the argument made (considerably more extensive than ours) was not prejudicial, emphasizing the discretion resting in the trial court; the court there said, among other things, loc. cit. 854: '* * * the jury must have known that the doctor to whom reference had been made in argument could not have testified to any fact bearing upon the question of liability.' We rule that the argument was not prejudicially erroneous.

Having determined the first point made, we must look to the other assignments not reached by the Court of Appeals. The next is that counsel for plaintiff over-emphasized the matter of liability insurance on the voir dire and that the jury panel should have been discharged. Counsel inquired initially (out of the presence of the jury) for the name of any interested insurance carrier; Mr. O'Laughlin, who was appearing for defendants Reid and Cole, stated that he was employed by Federated Mutual Implement and Hardware Insurance Company, a nonassessable mutual. The court then informed plaintiff's counsel, after some discussion, that he might ask whether any member of the panel or any member of one's immediate family...