Dorman v. East St. Louis Ry. Co.

• Citation: 75 S.W.2d 854,335 Mo. 1082
• Decision Date: 13 October 1934
• Docket Number: 31503
• Parties: Emma Dorman v. East St. Louis Railway Company, Appellant
• Court: United States State Supreme Court of Missouri

75 S.W.2d 854

335 Mo. 1082

Emma Dorman v. East St. Louis Railway Company, Appellant

No. 31503

Supreme Court of Missouri

October 13, 1934

Appeal from Circuit Court of City of St. Louis; Hon. Charles W Rutledge, Judge.

Affirmed (upon condition).

Lashly Lashly & Miller and George F. Wise for appellant.

(1) The court erred in permitting the case to go to the jury and in permitting plaintiff's counsel to argue the case and the law to the jury, over the objection of defendant, after plaintiff had failed to submit any instructions to the jury except the measure of damage instruction. Freeman v Berberich, 60 S.W.2d 393; Iman v. Walter Freund Bread Co., 58 S.W.2d 477; Barr v. Nafziger Baking Co., 41 S.W.2d 562; Bello v. Stuever, 44 S.W.2d 619; Shumate v. Wells, 9 S.W.2d 632, 320 Mo. 536. (2) The court erred in denying to defendant the right, in its argument to the jury, to relate the evidence that a year prior to the case at bar plaintiff had had another case against defendant, in which she claimed to have been injured in a manner the same as, or similar to, the manner in which she claims to have been injured in the case at bar. (a) Counsel in oral argument to the jury may relate any evidence which is in the case. Ern v. Rubinstein, 72 Mo.App. 344; Hax v. Ry. Co., 123 Mo.App. 172, 100 S.W. 693; 2 Hyatt on Trials, 1596, sec. 1503. (b) The action of the court in denying counsel the right to make proper argument is error. Peppers v. Ry. Co., 295 S.W. 757, 316 Mo. 1104; Knox v. Ry. Co., 203 S.W. 225, 199 Mo.App. 64; Fenton v. Mo. Motor Distributing Corp., 52 S.W.2d 213. (3) The statement which the court made in the presence of the jury (to the effect that a certain other case which plaintiff had had against defendant, in which she had claimed to have been injured in a manner the same as, or similar to, the manner in which she claims to have been injured in the case at bar, had nothing to do with the case at bar) constitutes a comment upon the evidence and is reversible error. Rose v. Kansas City, 125 Mo.App. 231, 102 S.W. 578; Mahaney v. K. C., C. C. & St. J. A. T. Co., 46 S.W.2d 817; Clear v. Van Blarcum, 241 S.W. 81; Fantroy v. Schirmer, 296 S.W. 235; Primmer v. Am. Car & Foundry Co., 299 S.W. 825. (4) The court erred in excluding from the evidence a written statement signed by witness Patricia Doyle made prior to the trial and inconsistent with her testimony in the case. Mattice v. Terminal Railroad Assn., 270 S.W. 306; State v. Carolla, 292 S.W. 721, 316 Mo. 213; Swift v. Ry. Co., 15 S.W.2d 964; State v. Brockington, 36 S.W.2d 911. (5) The court erred in not sustaining defendant's motion for a new trial on the ground that the verdict was so excessive as to indicate that it was the result of bias and prejudice and not based on the evidence. Mahmet v. Am. Radiator Co., 294 S.W. 1014; Parks v. United Rys. Co., 235 S.W. 1067; Hulse v. St. Joseph Ry. Co., 214 S.W. 150; Clark v. Widmer Engineering Co., 263 S.W. 500; Young v. Lusk, 187 S.W. 849, 268 Mo. 625; Clifton v. Ry. Co., 135 S.W. 40, 232 Mo. 708; Powell v. Rys. Co., 226 S.W. 916; Dominick v. Coal & Mining Co., 255 Mo. 463, 164 S.W. 567; Rigg v. Railroad Co., 212 S.W. 878; Lackey v. Ry. Co., 264 S.W. 807, 305 Mo. 260; Stolze v. Transit Co., 188 Mo. 581, 87 S.W. 517; Davenport v. Electric Co., 242 Mo. 111, 145 S.W. 454; Rose v. Ry. Co., 289 S.W. 913, 315 Mo. 1181; Crockett v. Rys. Co., 243 S.W. 902; Campbell v. United Rys., 243 Mo. 141, 147 S.W. 788.

Louis E. Miller for respondent.

(1) The court did not err in permitting the plaintiff to submit her case to the jury on only a measure of damage instruction. Drury v. White, 10 Mo. 354; Barr v. Nafziger Baking Co., 41 S.W.2d 559; Iman v. Walter Freund Bread Co., 58 S.W.2d 477; Penn v. Lewis, 12 Mo. 161; Coleman v. Drane, 116 Mo. 387; Browning v. Ry. Co., 124 Mo. 55; Farmer v. Farmer, 129 Mo. 530; Feary v. O'Neill, 149 Mo. 467; Hospes v. Branch, 151 Mo. 622; Minter v. Bradstreet Co., 147 Mo. 444; Penney v. St. Joseph Stock Yards, 212 Mo. 309; Brown v. Globe Printing Co., 213 Mo. 611; Horgan v. Brady, 155 Mo. 659; Williamson v. St. Louis Transit Co., 202 Mo. 345; Keppler v. Wells, 238 S.W. 425; Morgan v. Mulhall, 214 Mo. 451; Nolan v. Johns, 126 Mo. 159; Hall v. Ry. Co., 124 Mo.App. 661; Eagle v. Ry. Co., 71 Mo.App. 626; Wright v. Gillespie, 43 Mo.App. 244; Marion v. Ry. Co., 127 Mo.App. 129; Chicago, M. & St. P. Railroad Co. v. Randolph Townsite Co., 103 Mo. 451; Sullivan v. Ry. Co., 12 S.W.2d 735; Powell v. Railroad Co., 255 Mo. 420; Erickson v. Lundgren, 37 S.W.2d 629; Luikart v. Miller, 48 S.W.2d 867; Pavlo v. Forum Lunch Co., 19 S.W.2d 510. (a) Under Revised Statutes 1929, Section 967, courts are not required to instruct in civil cases unless requested to do so, and mere nondirection is not misdirection. Wingfield v. Railroad Co., 257 Mo. 347; Powell v. Ry. Co., 255 Mo. 420; De Ford v. Johnson, 177 S.W. 577; Wilson v. Ry. Co., 122 Mo.App. 667; Hall v. Ry. Co., 124 Mo.App. 661. (b) The right of either party to move the court to give instructions, being a personal privilege, is waived when no request is made. Wingfield v. Railroad Co., 257 Mo. 347; Tetherow v. St. Joseph D. & Mo. Co., 98 Mo. 74; Sowders v. Railroad Co., 127 Mo.App. 119; Weber v. Strobel, 194 S.W. 272. (c) Appellant cannot complain of action of trial court in submitting case to the jury on only measure of damage instruction, since point was not properly preserved in motion for new trial. Freeman v. Berberich, 60 S.W.2d 396. (2) The court did not deny appellant's counsel the right to relate evidence that a year prior to the case at bar plaintiff had had another case against defendant in which she was slightly injured while a passenger on one of its street cars. Whitaker v. Bell Oil Co., 167 S.W. 619; Costello v. Kansas City, 219 S.W. 386.

OPINION

Atwood, P. J.

This is an action for damages on account of personal injuries alleged to have been sustained by Emma Dorman while alighting from a street car of the East St. Louis Railway Company. Plaintiff obtained judgment for $ 10,250 from which defendant has appealed.

Plaintiff went to trial on her amended petition which contained the following specifications of negligence:

"1. That said street car was carelessly and negligently started forward before plaintiff had been allowed a reasonable opportunity to alight from same.

"2. That defendant carelessly and negligently failed and omitted to warn the plaintiff or to give her any signal of its intention to start the said car forward, in time to have permitted her to have restrained her movements and thus and thereby have saved herself from being thrown and injured as aforesaid.

"3. That defendant knew, or by the exercise of ordinary care on its part, could and should have known, that to start the said car forward without giving plaintiff a reasonable opportunity to alight from same was likely to cause her to be thrown and injured as aforesaid."

Defendant's answer consisted of a general denial and a plea of contributory negligence. Appropriate reference to the evidence will be made on consideration of the assignments of error urged by appellant.

Appellant's first assignment of error is to the action of the trial court "permitting the case to go to the jury over the objection of defendant after plaintiff had failed to submit any instructions other than the measure of damage instruction."

More than twenty years ago in Eversole v. Wabash Railroad Company, 249 Mo. 523, 529, 155 S.W. 419, we said that "the idea possessed by some lawyers that an instruction on the measure of damages in a personal injury case is all that they should attempt to write for fear of getting error in the record is an idea which when put into practice should be promptly condemned. There should in all cases be at least one principal instruction outlining to the jury the theory under the petition upon which recovery is sought. The jury should not be left to gather the theory of recovery from the petition, aided solely by a formal instruction upon the measure of damages. Nor should counsel cast the burden upon a trial judge to draw such an instruction." These words of admonition apparently fell on deaf ears because subsequent complaints that plaintiff's submission on a measure of damages instruction only was prejudicial error were generally in effect met with the aphorism announced in Morgan v. Mulhall, 214 Mo. 451, 463, 114 S.W. 4, and drawn from earlier cases, that "mere non-direction is not misdirection." [Sullivan v. St. L.-S. F. Ry. Co., 321 Mo. 697, 12 S.W.2d 735, 740; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559, 563; Luikart v. Miller (Mo.), 48 S.W.2d 867, 870.] However, frequent resort to this character of submission in recent years has evoked fresh criticism and sharp judicial condemnation (Shumate v. Wells, 9 S.W.2d 632, 320 Mo. 536; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559, 562; Bello v. Stuever (Mo.), 44 S.W.2d 619; Iman v. Walter Freund Bread Co., 332 Mo. 461, 58 S.W.2d 477; Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393; Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950, 956, 957), although for various reasons we have not yet reversed a judgment solely on that account. The bar is entitled as soon as possible to a clarification of the nature of this complaint and to be advised what, if anything, can be done about it.

The assumption that mere failure of the trial court to instruct the jury is not error in a civil case apparently rests on inferences drawn from some of our early decisions rendered when courts were deemed to have exclusive power to make and promulgate rules of practice, and other decisions rendered after the General Assembly began to treat this as a legislative function.

Harking back to the Territorial Laws of Missouri, we find that Chapter I of the...