Edwards v. Lacy

• Decision Date: 13 March 1967
• Docket Number: No. 1,No. 51913,51913,1
• Citation: 412 S.W.2d 419
• Parties: Antonio EDWARDS, a Minor, by William M. Edwards, His Next Friend, Appellant, v. Mrs. Joan LACY, Respondent
• Court: Missouri Supreme Court

Page 419

412 S.W.2d 419

Antonio EDWARDS, a Minor, by William M. Edwards, His Next Friend, Appellant, v. Mrs. Joan LACY, Respondent.

No. 51913.

Supreme Court of Missouri, Division No. 1.

March 13, 1967.

Morris A. Shenker and Frank B. Green, Jr., St. Louis, for plaintiff-appellant.

Joseph E. McGuire, Eaker & McGuire, Clayton, for defendant-respondent.

HOUSER, Commissioner.

Four-year-old Antonio Edwards, a pedestrian, was struck, run over and seriously injured by an automobile driven by Mrs. Joan Lacy as he was crossing a street in the City of St. Louis. By next friend Antonio sued Mrs. Lacy for $50,000 damages for personal injuries. A trial jury returned a verdict for defendant. Antonio has appealed from the judgment entered on the verdict.

The negligence charged and submitted was that defendant either 'failed to keep a careful lookout, or knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have stopped' (but defendant failed to do so). The defense was that the child darted out from behind a parked car and into the path of the automobile when the distance separating the child and car was so short that it was not humanly possible to stop and avoid striking him. He was struck as he was running from north to south across an east-west street. According to plaintiff's evidence there were no parked cars within 60 feet east or 60 feet west of the point where he left the curb. Defendant testified that there were parked cars all along the north side of the street. Defendant's testimony was that she was traveling 25 m.p.h. at a distance of 30--35 feet west of the point where the boy entered the street, and that counting reaction time and stopping distance there was no chance to avoid striking the boy.

The only point raised on this appeal is that 'Counsel for the defense made a naked appeal for sympathy by urging the jurors to view the casualty with themselves in the driver's position and urging that they put themselves in the defendant's place thereby importuning them to violate their juror's oath to view the facts impartially. And, the trial Court's failure to rule upon plaintiff's timely objection thereto constituted prejudicial error in that it cast the weight of judicial approval behind defendant's illegal argument.'

We quote the objected-to portion of the argument of defendant's counsel, together with some of the argument leading up to and following the challenged argument:

'Mrs. Lacy has a very great personal interest in the outcome of this lawsuit, gentlemen. And I think that you are going to have to have a much better legal and a much better logical basis in returning a verdict against her than you have under these facts.

'I want you to keep those distances in mind: thirty to thirty-five feet from the crosswalk that they say he entered the street from. Giving him the benefit that he entered from the curb instead of a parked car, she still can't stop, assuming that there is a parked car there and he entered before she could see him behind a parked car. The young lad stood up there, and you think you could have seen this youngster if he ran from a parked car until he got in the street, and he is traveling at seven and a half feet a second, that quickly? And he has only to travel another eight feet to get to the center line, and here you are driving your attomobile down the street. You are men of common experiences. Many of you drive. Would you put yourself in the place of--

'MR. GREEN: Objection. The jury may not put themselves in the position of either party. Argument to do so is highly improper and inflammable. They may call on their own experiences but not place themselves in the position of the parties.

'MR. McGUIRE: (Continuing) You can call upon your own experiences, gentlemen, to recognize the situation that faced Mrs. Lacy under these facts. And when you do, gentlemen, and when you are honest with me, and when you have voted your conscience, you will find out there is no possible way that you could return a verdict under these facts.'

Plaintiff contends that this argument injected the individual juror into the driver's seat of the moving vehicle and by resort to an appeal to the sympathy of the jury for the defendant, sought to have the jurors identify with the auto driver; and that by making this argument defendant's counsel asked the jurors to trade places with defendant and decide the case as if they were the defendant instead of jurors. It is claimed that the inference is that 'you drive, so it could happen to you as it did to defendant'; that if the jurors identify with the defendant they must first convict themselves of misconduct before they can convict the defendant, and that plaintiff was prejudiced because the jury judged themselves and returned a verdict for themselves. Plaintiff argues that the mischief was compounded by the failure of the court to rule on the objection in the presence of the jury, which in their eyes constituted judicial approval of this attempted transference.

A plea to jurors to put themselves in the place of one of the parties has been 'consistently condemned and uniformly branded as improper.' Faught v. Washam, Mo.Supp., 329 S.W.2d 588, 602, fn. 22. Defendant's counsel should not have made this argument. Standing alone, however, a plea to the jurors to put themselves in the place of one of the parties does not always constitute reversible error. Faught v. Washam, ibidem. It is not ground for reversal if it does not appear probable that the jury was prejudicially affected by the improper statement. Improper statements of this kind may be cured, in given circumstances, by withdrawal, reprimand or admonition, or by proper instruction to the jury. What the trial court should do when confronted with a particular situation depends upon the nature of the argument, the form and character of the objection, the action requested of the court, the subsequent conduct of the offending counsel and the action counsel takes, and in determining what to do the trial judge must take into consideration the parties, the issues, and the general atmosphere of the case. Southwestern Bell Telephone Co. v. Jennemann, Mo.App., 407 S.W.2d 85, 91.

In some cases the error involved in an improper argument to the jury has been held cured by the form of the objection of opposing counsel. Thus in State ex rel. Shipman v. Allen, 144 Mo.App. 234, 128 S.W. 809(4), l.c. 811, relator's counsel, in opening statement, after reciting the history of the litigation, stated that this case had been tried...