Gregory v. Rees Plumbing Co., 5-256
Decision Date | 18 January 1954 |
Docket Number | No. 5-256,5-256 |
Citation | 263 S.W.2d 697,222 Ark. 908 |
Parties | GREGORY v. REES PLUMBING CO., Inc. |
Court | Arkansas Supreme Court |
Frank Sloan and W. B. Howard, Jonesboro, for appellant.
Barrett, Wheatley, Smith & Deacon, Jonesboro, for appellee.
Appellee, Rees Plumbing Co., Inc. (hereinafter called 'Rees'), filed this action against the appellant, Mode Gregory, on an itemized account for $1180.29, for materials and labor furnished in installing a boiler in Gregory's cleaning establishment in Jonesboro. Gregory's defenses were: (a) that the contract price was $153.23, plus some extras, making the total amount due Rees to be $341.33, for which Gregory offered to confess judgment; and (b) that the charges in excess of $341.33 were not only erroneous but also exorbitant. The cause was tried to a Jury in February 1953, and resulted in a verdict and judgment for Rees for $1001. To reverse that judgment Gregory brings this appeal, and urges the assignments now to be discussed.
I. Improper And Prejudicial Arguments By Rees' Attorneys. There are several arguments of which Gregory complains:
(a) We quote from the record which appellant brings to us by what is conceded 1 to be equivalent to a bystander's bill:
'In the closing argument for plaintiff, Berl S. Smith, counsel for plaintiff, told the jury that plaintiff's claim was just and should be allowed; and that the jury should not consider or be deterred by the fact that defendant Mode Gregory disagreed with plaintiff's contentions, as it was not unusual for Gregory to disagree, in that this was the second case said defendant had in this term of court, and that defendant was in litigation at all times and every time the court met. Whereupon, defendant's counsel, W. B. Howard, objected to the argument, asked the court to instruct the jury to disregard it, and further asked the court to tell the jury that defendant had been in several lawsuits in this court in the past two years and that defendant had won everyone of such lawsuits. The court responded to this objection by telling the jury that the argument of Mr. Smith was improper and that they should not consider such improper argument; but the court refused to tell the jury that defendant had been involved in previous litigation wherein he had been successful in every instance. At this time, Mr. Smith stated that he was sorry that he made the argument and that it had just 'slipped out".
It will be observed that after Mr. Smith apologized for the argument, the appellant's counsel was apparently satisfied and did not urge any further objection, or request any further admonition to be made by the Court, or save any exceptions 2 to the failure of the Court to give any further admonition. In Kiech Mfg. Co. v. Hopkins, 108 Ark. 578, 158 S.W. 981, 987, we said:
In Jenkins v. Quick, 105 Ark. 467, 151 S.W. 1021, and also in Ft. Smith Lbr. Co. v. Shackleford, 115 Ark. 272, 171 S.W. 99, we held that arguments, no more improper than that here involved, were cured when the Court admonished the Jury and the attorney apologized for the improper argument and withdrew the statement. The cited cases are ruling on the point here at issue.
(b) We again quote from the record which appellant brings to us by what is conceded to be equivalent to a bystander's bill:
'He 3 then continued with his argument and in attempting to explain why one of the original invoices was captioned as billed to the Fidelity and Casualty Company for work at Leachville, Arkansas and why plaintiff's bookkeeper was not called as a witness on this matter, Mr. Smith stated that Harold Rees was an honest man and wanted only what was coming to him, that plaintiff's counsel wanted him to have only what was coming to him; and that he, Berl S. Smith, knew the entire claim was just, true and correct because he had personally checked the books and records of the plaintiff corporation. The attorney for the plaintiff then said that W. B. Howard was an able opponent and had done a magnificent job with nothing to work with, and that a good example of Howard's ability to make something out of nothing was the action of counsel in connection with the appearance and testimony of the witness Ralph Burton, of which, the said Berl S. Smith stated in substance 'Now we see the Master calling for a witness and then having the court issue an attachment, then cross-examination his own witness''.
It is conceded that Gregory's attorney offered no objection to any of the argument as contained in the quotation just given, and that it was not until the Motion for New Trial that any objection was ever made to the portion of the argument last quoted. In Graves v. Jewel Tea Co., 180 Ark. 980, 23 S.W.2d 972, 976, an objection to an argument was made for the first time in the Motion for New Trial, and we said of such objection:
Again in Caldwell v. State, 214 Ark. 287, 215 S.W.2d 518, 519, we said:
The cited cases establish that Gregory has not presented us with a record showing timely objections on the arguments involved in this sub-topic.
(c) Finally on this matter of improper argument, Gregory claims that the effect of the combined arguments as heretofore quoted in (a) and (b) was so devastating to Gregory's case that no objections, exceptions, or Court admonitions could have erased the effect of these arguments from the mind of the Jury; and so Gregory claims that he is entitled to a reversal under the authority of the case of German-American Ins. Co. v. Harper, 70 Ark. 305, 67 S.W. 755.
In the said German-American...
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Walker v. State, CR
...or to again ask for a mistrial. When a question is repeated, and there is no objection, the matter is waived. Gregory v. Rees Plumbing Co., 222 Ark. 908, 263 S.W.2d 697 (1954). Third, the argument now advanced on appeal, an A.R.E. Rule 403 issue of weighing probative value vs. prejudice, wa......
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Smith v. Thomason, 5-1707
...highly improper and grossly prejudicial and would have called for a mistrial upon proper motion by appellants. Gregory v. Rees Plumbing Co., Inc., 222 Ark. 908, 263 S.W.2d 697. The judgment is reversed and the cause is ...
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Hicks v. Lady, 5-1833
...For similar declarations of our Court, see Leech v. Missouri Pac. R. Co., 189 Ark. 161, 71 S.W.2d 467; and Gregory v. Rees Plumbing Co., 222 Ark. 908, 263 S.W.2d 697. There is another reason why the appellant is not entitled to a new trial in this case, and it is well to note it as a guide ......