Geimer v. Pastrovich

• Decision Date: 16 October 1991
• Docket Number: No. 90-2784,90-2784
• Citation: 946 F.2d 1379
• Parties: Kenneth G. GEIMER, Appellant, v. Samuel T. PASTROVICH, Jr., Samuel T. Pastrovich, III, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1379

946 F.2d 1379

Kenneth G. GEIMER, Appellant, v. Samuel T. PASTROVICH, Jr., Samuel T. Pastrovich, III, Appellees.

No. 90-2784.

United States Court of Appeals Eighth Circuit.

Submitted June 12, 1991.

Decided Oct. 16, 1991.

Robert H. Pedroli, Clayton, Mo., argued for appellant; Daniel J. Gauthier, Clayton, Mo., on the brief.

P. Michael Read, St. Louis, Mo., argued for appellees; Paul M. Storment, St. Louis, Mo., on the brief.

Before JOHN R. GIBSON, Circuit Judge, ROSS, Senior Circuit Judge, and LOKEN, Circuit Judge.

PER CURIAM.

Kenneth Geimer appeals from a judgment entered on an adverse verdict in favor of Samuel T. Pastrovich, Jr. and Samuel T. Pastrovich, III. Geimer fractured his right ankle when he stepped in a hole on the shore of Lake Chipaway, a commercial fishing lake operated by the Pastroviches, and he brought this diversity action claiming negligence. On appeal, Geimer claims that the district court ¹ erred in: (1) allowing opposing counsel to comment in closing argument on the failure to call a witness equally available to both parties; (2) allowing questioning of Geimer about his fault in stepping in the hole; and (3) erroneously instructing the jury. He also claims that a side bar comment made by the judge during trial constituted reversible error. We affirm the district court's judgment.

Little can be gained by a detailed discussion of the facts in this simple slip and fall case other than as necessary in deciding the specific issues before us.

I.

The most troublesome argument raised by Geimer is his claim that the district court erred in failing to order a new trial because opposing counsel improperly commented on the nonproduction of a witness in closing argument. Geimer contends that because the witness in question was equally available to both sides, such a comment was prejudicially erroneous and constituted reversible error under Missouri law.

The testimony at trial relating to the argument in issue consisted of the following. Geimer testified that the first person to come to him after he fell was a man Geimer knew only as "the preacher." Geimer had had some short conversation with "the preacher" that morning about his luck fishing. Geimer had seen this man many times at the lake. Geimer testified that the wind blew his line across the preacher's line, causing him to reel in his line, and that he had to keep watching the line so that the two lines did not cross over. While Geimer walked to his left and reeled in the line, Geimer fell in a hole and went into the lake. Geimer testified that the preacher came and helped him get out of the water, got him his gear, and then helped him back into his chair. Geimer testified that the preacher actually had his hands on him and lifted him up, and in doing so, had his arm around him and supported him.

While the interrogatory answers were not read to the jury, the Pastroviches filed interrogatory answers listing Ferris Price as one of the persons known to be at the scene of the occurrence. Price was evidently the person Geimer knew as "the preacher." The interrogatory answers also identified John Guletz as a person known to have witnessed the occurrence, and Guletz's deposition was read in evidence at trial.

At Geimer's request, the district court instructed the jury that if a party fails to call a person having knowledge about the facts in issue, and that person is reasonably available to him, and not equally available to the other party, the jury could infer that the person's testimony was unfavorable to the party who failed to call him. ²

During closing argument, Geimer's counsel referred to the preacher helping Geimer get up after the fall. Thereafter, Pastroviches' counsel argued:

My point is, is that there were two independent witnesses, and I think when you go into that jury room there you're going to have to consider what did the independent witnesses say, what did the witnesses say who don't have anything to gain by this, who don't have an ax to grind, who are not going to put money in their pocket, who are not going to enhance their position with their boss. There were two independent witnesses and I think you recall I spent some time with the plaintiff talking about the preacher.

* * * * * *

As I was saying there was a--I spent some time with the plaintiff talking about the preacher as he called him, and I even asked him if he knew his name and he said he thought--I think I asked him do you remember his name being Price and he said yeah, that kind of rings a bell.

* * * * * *

Back to the instruction and I'm sorry I'm deviating, but instruction number six says that if you find that there was a witness who could have been called by a proponent of a piece of evidence, and I'm trying to paraphrase it, you may infer that that witness would have testified adverse to the person who could have called him.

* * * * * *

If Mr. Geimer wanted to buttruss (sic) his testimony because everyone in this courtroom who has testified so far has denied that there was a hole where he says he fell, where is the preacher? Where is he? Why isn't he here? If you recall, I spent a lot of time with Mr. Geimer corroborating that the preacher had every opportunity to observe that hole. You remember that I asked him did he put his arms on you? Did he lift you up like this or did he grab you around the waist or did you just grab his hand, and of course, he couldn't remember, but the preacher was standing right there with him, and if the preacher was available to testify about the existence of a hole, where is he? Where is the preacher?

The substance of Geimer's argument is that the preacher was equally available to the defense, and therefore, Pastroviches' counsel improperly commented on Geimer's failure to call the preacher as a witness.

A threshold question is whether federal or Missouri law governs the propriety of closing arguments in this diversity case. Geimer argues that Missouri law applies. In Illinois Central Railroad Co. v. Staples, 272 F.2d 829 (8th Cir.1959), however, this court stated: "[w]hether or not the court erred in permitting the argument of counsel is a procedural question and hence to be determined by decisions of Federal courts rather than decisions of State courts." Id. at 834. Illinois Central examined the law from other circuits, observed that Missouri law on this subject was essentially the same, and held the district court did not err in allowing a statement by plaintiff's counsel during closing argument that the defendant railroad failed to call members of its train crew as witnesses. Id. at 834-35. Duncan v. St. Louis-San Francisco Railway Co., 480 F.2d 79 (8th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 69, 38 L.Ed.2d 109 (1973), dealt with a similar argument and stated that "[t]he propriety of arguments to the jury is a procedural question governed by federal law." Id. at 84 (citing Illinois Central, 272 F.2d at 834). In Duncan, we approved of the argument in question even though the plaintiff was an employee of the railroad and certain other crew members' depositions had been read into evidence. Id. at 85. See also Vanskike v. ACF Indus., Inc., 665 F.2d 188, 209 (8th Cir.1981) ("[a]rgument of counsel is a procedural question to be determined by federal law."), cert. denied, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982).

Johnson v. Richardson, 701 F.2d 753 (8th Cir.1983), without engaging in detailed analysis of the question or citing the earlier three cases we have referred to above, applied Missouri law to the question of what may be permissibly argued in closing, id. at 757, as did Campbell v. Coleman Co., 786 F.2d 892, 897-98 (8th Cir.1986). Both of these cases involved the argument on the inference arising from the non-production of a witness. Campbell reversed a judgment on this ground. Id. at 898. In both cases we referred extensively to Missouri law. ³

The issue of which of these conflicting views we should accept, or indeed, under rules of stare decisis, which we are required to follow, is an issue we have determined that we need not reach.

Even assuming the closing argument is erroneous, we hold it is not prejudicial. This court in Griffin v. Hilke, 804 F.2d 1052 (8th Cir.1986), cert. denied, 482 U.S. 914, 107 S.Ct. 3184, 96 L.Ed.2d 673 (1987), stated:

Whether prejudice has resulted from a closing argument is a procedural question to be determined by federal law. The district court is in a better position than the court of appeals to determine whether prejudice has resulted from a closing argument. Therefore, to constitute reversible error, statements made in closing argument must be plainly unwarranted and clearly injurious. We will not disturb the district court's evidentiary rulings during closing argument unless there has been an abuse of discretion.

Id. at 1057 (citations omitted).

We are also mindful that we may not reverse for errors which do not affect the substantial rights of the parties. 28 U.S.C. § 2111 (1988). So viewed, we have no hesitation in determining that the argument, even if erroneous, was harmless beyond a reasonable doubt. Here, Geimer testified that he fell when he stepped into a hole a few feet from the water's edge. The only other witness called to testify about the occurrence, John Guletz, described a different fall. Guletz testified that he saw Geimer come over to another fisherman and reach in the lake for something, and that Geimer fell when the bank gave away and his foot went down into the shore line about two feet above the lake. On the state of this record before the jury, we cannot conclude that the argument, a part of which was based on an instruction given to the jury and requested by Geimer, was "plainly unwarranted and clearly injurious," or that the district court abused its discretion in controlling the closing argument.

II.

Geimer makes other claims of error that need not detain us long. Geimer argues that the district court committed...