Farley v. Johnny Londoff Chevrolet, Inc.

• Decision Date: 26 June 1984
• Docket Number: No. 44021,44021
• Citation: 673 S.W.2d 800
• Parties: John T. FARLEY, Plaintiff-Appellant, v. JOHNNY LONDOFF CHEVROLET, INC. and Ken Whitney, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 800

673 S.W.2d 800

John T. FARLEY, Plaintiff-Appellant, v. JOHNNY LONDOFF CHEVROLET, INC. and Ken Whitney,

Defendants-Respondents.

No. 44021.

Missouri Court of Appeals,

Eastern District,

Division One.

June 26, 1984.

Johnson & Hayes by Harold G. Johnson, St. Ann, for plaintiff-appellant.

Daniel W. Brown, St. Louis, for defendants-respondents.

SATZ, Judge.

Plaintiff, John Farley, purchased a used car from defendant, Johnny Londoff Chevrolet, Inc. (Londoff). Based upon this purchase, plaintiff sued defendant Londoff and its alleged agent, defendant Ken Whitney, on three counts: (1) common law fraud, (2) breach of implied warranty, and (3) violation of Missouri's Merchandising Practice Act, see § 407.020 RSMo 1978. Apparently, the cause was submitted to the jury on the fraud count. ¹ The jury returned a verdict in favor of plaintiff and against defendants, assessing plaintiff's damages at $2,000 actual and $8,000 punitive. Defendants' motion for a new trial was granted. Plaintiff appeals. We affirm.

During plaintiff's case, plaintiff's counsel called defendant Whitney as a witness. Through him, plaintiff's counsel established that a Bob Boumis apparently was defendant Londoff's sales manager for used cars at the time of the sale in question. Plaintiff's counsel then asked defendant Whitney: "Isn't it true that [Bob Boumis] was convicted in Federal district court." ² Defendant's counsel made a timely objection to this question and also requested a mistrial. The court denied the request for a mistrial, sustained the objection and instructed the jury to disregard the question. Plaintiff's counsel then assured the court he would not "talk about [Boumis'] criminal record." During the rebuttal half of his closing argument, however, plaintiff's counsel raised the issue of Bob Boumis again by calling the jury's attention to the fact that "we don't have Bob Boumis, the used car sales manager ..., who was responsible for trade-ins, who was responsible for giving the final approval" and by asking the rhetorical question: "where is he [Bob Boumis] today?" Then, apparently, at the time of and along with their motion for a new trial, defendants filed documents indicating that, during the trial, the news media had reported on the sentencing of Bob Boumis for dealing in drugs.

The trial court based its grant of a new trial on three grounds: (1) the questioning by plaintiff's counsel of defendant Whitney about the conviction of Bob Boumis; (2) the references to Bob Boumis by plaintiff's counsel in closing argument; and (3) the media coverage, during the course of the trial, of the sentencing of Boumis. In its order granting a new trial, the court also stated that "the conviction of Bob Boumis was extrinsic to the issues at bar," and that, at trial, "there should not be interjected extrinsic matter which tends to create bias or prejudice in the minds of the jurors."

Our review of the grant of a new trial, as in the instant case, differs from the review of the denial of a new trial. E.g., Fitzpatrick v. St. Louis--San Francisco Ry. Co., 327 S.W.2d 801, 808 (Mo.1959). We are more liberal in upholding the grant of a new trial than the denial of a new trial. Id. at 808; see, e.g., Girratono v. Kansas City Public Service Co., 272 S.W.2d 278, 281 (Mo.1954). When, as here, the trial court grants a new trial, "we must indulge every reasonable inference favorable to the trial court's ruling, and we may not reverse unless there has been a clear abuse of discretion", Penn v. Hartman, 525 S.W.2d 773, 775 (Mo.App.1975); "even though we may feel, on the cold record, that as a [trial] court we might have ruled otherwise." DeMaire v. Thompson, 359 Mo. 457, 222 S.W.2d 93, 97 (1949).

The trial court's explicitly stated concern was the prejudice worked by defendant's references to the conviction of Bob Boumis. This concern was sensibly reached. Plaintiff's burden was to show he was defrauded. A convicted person is amoral, or, if morality has gradients, a convicted person is more amoral than an honest one. Therefore, a jury could reason that Boumis, "the crook", is the kind of man who would be likely to defraud plaintiff. But, with certain exceptions, evidence of a person's character "will not generally be received to prove that the person ... engaged in certain conduct, or did so with a given intent, on a particular occasion.... The reason for the general rule is that ..., [character evidence] generally ... comes with too much dangerous baggage of prejudice, distraction from the issues ... and hazard of surprise." McCormick, Evidence, § 188 (2d ed. 1972). Thus, even if Boumis were a party or a witness, his "bad" character could only be used to impeach him. Id. at § 188. Boumis not being a witness simply made the prejudice worked against defendants more acute.

Plaintiff attacks all three grounds used by the trial court. Plaintiff's attack on the first ground is two-fold. Plaintiff argues the question he asked defendant Whitney about Boumis' conviction was proper, but, even if it were improper, the court's admonition to the jury to disregard the question cured any prejudice caused by the question.

Plaintiff notes that prior convictions can be used to impeach a witness. § 491.050 RSMo 1978, as amended; see, e.g., State v. Payne, 600 S.W.2d 94 (Mo.App.1980). Plaintiff then concludes this principle can be extended to impeach the credibility of defendant Londoff by questioning one of its employees, defendant Whitney, about the conviction of another employee, Boumis. Plaintiff reaches his conclusion from his premise by a free leap which is neither supported by law or logic, and, therefore, has no merit.

However, as a general principle of law taken in the abstract, plaintiff's second attack is correct. Members of a jury are presumed to have understood and heeded a judge's admonition or ruling. See, e.g., Stephens v. City of Eldorado Springs, 190 S.W. 1004, 1005 (Mo.App.1916). Other equally sound general principles, however, are more important here: each case must be decided on its own facts and a motion for a new trial enables the trial court to reflect upon and consider its actions taken during a rapidly moving trial.

The grant of a new trial here was an exercise of the trial court's discretion. See, e.g., Dorrell v. Moore, 504 S.W.2d 174, 177 (Mo.App.1973). Boumis was Londoff's used car sales manager at the time of the sale in question. Upon reflection, the court could find, sensibly and rationally, that the poison injected into the trial by the question about Boumis' conviction went right to a basic issue--whether a fraudulent representation was, in fact, made--and, from this, find this poison could only be cured by a new trial. Id. at 176-177. We defer to the trial court which "has more power to direct the course of justice in the trial of a cause than any tribunal that may have charge of the case after [it].... [The trial court] is far better able to judge whether the trial has been fair than is the court that reviews the record." Benjamin v. Metropolitan Street Ry. Co., 245 Mo. 598, 151 S.W. 91, 97 (1912).

Although the issue of whether the trial court's admonition cured the prejudicial effect of the improper question may be decided as an isolated issue, it need not be. The effect on the jury must be taken in context with plaintiff's subsequent references to Boumis in closing argument. As noted, in the rebuttal half of his closing argument, plaintiff's counsel reminded the jury that "we don't have Bob Boumis, the used car sales manager ..., who was responsible for trade-ins, who was responsible for giving the final approval" and asked the rhetorical questions: "where is he [Bob Boumis] today?" The acute increase of prejudice worked by the additional references to Boumis can be demonstrated best by addressing plaintiff's attempted justification for these additional references.

Plaintiff's attempt to justify his reference to Boumis in his closing argument is three-fold. First, plaintiff notes that defendants did not object to plaintiff's references to Boumis in his closing argument and, therefore, plaintiff argues, defendants did not preserve this issue for review. This argument is misdirected and, thus, misses the mark.

Here, again, there is a meaningful distinction between the denial of a new trial and the grant of a new trial. On appeal, when a party claims error because the trial court denied him a new trial, the party ordinarily must have made a proper and timely objection to the claimed error to preserve it for review; but, when, as here, a party claims error because the trial court granted the opposing party a new trial, the opposing party need not have made an objection to the error upon which the trial court granted a new trial. Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482, 485 (1932); Greenwell v. Huffman, 506 S.W.2d 28, 31 (Mo.App.1974); Raines v. Small, 169 S.W.2d 102, 105 (Mo.App.1943). ³

Plaintiff also contends that Boumis, as an employee of defendant Londoff, was more available to Londoff and, therefore, in closing argument, plaintiff's counsel could argue an adverse interest from Londoff's failure to call Boumis as a witness. Plaintiff's reading of the record is incorrect.

Whether a witness is to be considered equally available to opposing parties depends on several factors. Leehy v. Supreme Exp. & Transfer Co., 646 S.W.2d 786 (Mo. banc 1983). ⁴ Prior to the Leehy case, our courts "suggest[ed] that the existence of an employer-employee relationship automatically makes the employee more available to the employer." (Citations omitted) Id. at 790, n. 4. Leehy indicates the inflexibility of this rule is incorrect and that, even if an employer-employee relationship exists, the employee is not necessarily more available to the employer. Id. at 790-791. In the instant case, however, plaintiff did not even show Boumis was an employee of defendant Londoff at the time of trial. On the contrary, through defendant Whitney,...