Hancock v. Kansas City Terminal R. Co.

• Decision Date: 04 January 1941
• Docket Number: 37013
• Parties: Lola E. Hancock, Administratrix of the Estate of Eugene P. Hancock, v. Kansas City Terminal Railway Company, a Corporation, Appellant
• Court: Missouri Supreme Court

146 S.W.2d 627

347 Mo. 166

Lola E. Hancock, Administratrix of the Estate of Eugene P. Hancock, v. Kansas City Terminal Railway Company, a Corporation, Appellant

No. 37013

Supreme Court of Missouri

January 4, 1941

Appeal from Jackson Circuit Court; Hon. Albert A. Ridge Judge.

Affirmed on remittitur of $ 5000.

Samuel W. Sawyer, John H. Lathrop and James F. Walsh for Kansas City Terminal Railway Company.

(1) Whether McCormack shook or showed emotion while standing by the coffin was not a pertinent issue in the case and therefore was not the subject of impeachment. Furthermore the evidence as a whole was inadmissible since there was no proper identification of McCormack by Weston. Janis v Jenkins, 58 S.W.2d 301. (2) The verdict of the jury was $ 50,000 and the size of the verdict in itself, under the evidence in this case and especially in view of what this court said on former appeal, must shock the conscience of the court. This enormous verdict was the result of passion and prejudice of the jury and the erroneous and prejudicial statements and the opening and closing arguments of plaintiff's counsel which, together with other prejudicial incidents at the trial, aroused the passions and prejudices of the jury. Said arguments were made for the purpose and with the avowed intention of arousing those passions and of requiring the jury to return a verdict of $ 50,000, the full amount sued for, in the very teeth of this court's opinion that no such verdict was justified. Hancock v. Kansas City Term. Ry. Co., 339 Mo. 1237 100 S.W.2d 581; Gardner v. Stout, 342 Mo. 1206, 119 S.W.2d 796; Villinger v. Nighthawk Freight Serv., 104 S.W.2d 742; Amsinger v. Najim, 73 S.W.2d 216, 335 Mo. 528; Minneapolis, St. Paul Railroad Co. v. Moquin, 283 U.S. 520. (3) The judgment of $ 30,000 entered after remittitur of $ 20,000 from the verdict of $ 50,000 cannot eradicate the passion and prejudice of the jury which brought about the verdict against the defendant in this excessive amount. The defendant is therefore entitled to a new trial. If this be not granted, the present judgment of $ 30,000 is still clearly excessive and should be substantially reduced. Gleason & Otis, Inheritance Taxation (3 Ed.), p. 286; Brown v. Railroad Co., 286 S.W. 45, 315 Mo. 409; Lorton v. Mo. Pacific, 267 S.W. 385, 306 Mo. 125; Gill v. B. & O., 259 S.W. 93, 302 Mo. 317; Porterfield v. Terminal, 5 S.W.2d 447, 319 Mo. 619; Kidd v. Railway, 274 S.W. 1079, 310 Mo. 1; Shaw v. C. & A., 282 S.W. 416, 314 Mo. 123; Oglesby v. Railroad Co., 1 S.W.2d 172, 318 Mo. 79; Stottle v. Railroad Co., 18 S.W.2d 433, 321 Mo. 1190; Case v. Railroad Co., 30 S.W.2d 1069; Moran v. Santa Fe, 48 S.W.2d 881, 330 Mo. 278; Arkell v. B. & O. Ry. Co., 131 S.W.2d 595.

Cowgill & Popham, Madden Freeman & Madden and Alfred Kuraner for respondent.

(1) Appellant's unnumbered introductory discussion is not reviewable and is without merit. Gray v. Kurn, 137 S.W.2d 558; Mahmet v. American Radiator Co., 294 S.W. 1014; Burch v. Railroad Co., 40 S.W.2d 688; Natl. Ref. Co. v. Chandler, 71 S.W.2d 482; Hall v. Fed. Life Ins. Co., 71 S.W.2d 762; Brown v. Dawes, 76 S.W.2d 714. (2) No error was committed by the trial court in the admission of the evidence of witness Weston because no sufficient objection was made thereto, the matter was not preserved in the motion for new trial, and the evidence was in any event admissible. Morton v. So. T. & T. Co., 217 S.W. 836; Scott v. Mo. Pac. Ry. Co., 62 S.W.2d 834; Span v. Jackson-Walker Coal & Min. Co., 16 S.W.2d 200; Rockenstein v. Rogers, 31 S.W.2d 792; State ex rel. Randall v. Payne, 108 S.W.2d 122; Blankenship v. St. L. Pub. Serv. Co., 71 S.W.2d 723; Globe American Corp. v. Miller, 131 S.W.2d 340; State v. Parker, 12 S.W.2d 428; State v. Bennett, 87 S.W.2d 162; Stegeman v. Penn. Ry. Co., 6 F.2d 873. (3) Appellant's second assignment specifies no error and is not reviewable; moreover, neither the verdict itself nor the matters mentioned in the argument demonstrate passion and prejudice on the part of the jury, so that there was no error. (a) Appellant's second assignment of error fails to charge the trial court with any specific error and fails to designate the place in the record where rulings complained of can be found; because of such violation of Rule 15 of this court the argument directed to this assignment must be disregarded. Hill v. Harvey, 201 S.W. 538; Mahmet v. American Radiator Co., 294 S.W. 1016; Robb v. Bartels, 263 S.W. 1013; Reavis v. Butterworth, 228 S.W. 845; Klaber v. C., R. I. & P. Ry. Co., 33 S.W.2d 149; Barnett v. Hastain, 256 S.W. 753; Sewald v. Gentry, 286 S.W. 445; Nevins v. Gilliland, 290 Mo. 293, 234 S.W. 818; State v. Presler, 290 S.W. 142; State v. Judge, 285 S.W. 721; Scott v. Mo. Pac. Ry. Co., 62 S.W.2d 840. (b) Even assuming that the verdict of the jury was excessive, such verdict does not of itself indicate passion and prejudice, and a reversal will not be ordered without an independent showing of passion and prejudice or other prejudicial error. Kimberling v. Wabash Ry. Co., 85 S.W.2d 736; Taylor v. Mo. Pac. Ry. Co., 279 S.W. 115; Greenwell v. Ry. Co., 224 S.W. 404; Varley v. Columbia Taxicab Co., 240 S.W. 218; Sophian v. Douglas, 23 S.W.2d 126; Span v. Jackson-Walker Coal & Min. Co., 16 S.W.2d 203; Sallee v. Ry. Assn., 112 S.W.2d 950. (c) Most of the matters of which appellant complains as showing passion and prejudice were not objected to at the trial, and hence are not reviewable here. Powell v. Railroad Co., 255 Mo. 454; State v. Wana, 245 Mo. 558; Newport v. Montgomery Ward & Co., 127 S.W.2d 687; Gabelman v. Bolt, 80 S.W.2d 171; Busch v. Railroad Co., 17 S.W.2d 337; Smith v. Ins. Co., 49 S.W.2d 42. (d) The various matters complained of were neither prejudicial nor erroneous, and for the most part were not preserved in the motion for new trial. The promptness of the jury's verdict constitutes no basis for appellate action. 64 C. J. 1019, sec. 808. Advising the jury of the amount of damages claimed in the opening statement and argument is not error. Perkins v. Terminal, 102 S.W.2d 923; Maurizi v. Coal & Mining Co., 11 S.W.2d 268. (4) The judgment of thirty thousand dollars must under controlling authorities be affirmed. Mobile & O. Railroad Co. v. Williams, 221 Ala. 402, 129 So. 60; Gill v. Railroad Co., 259 S.W. 93; Oglesby v. Railroad Co., 1 S.W.2d 172, 318 Mo. 79; Moran v. Railroad Co., 48 S.W.2d 881.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action, under the Federal Employers' Liability Act (45 U.S.C. A., secs. 51-59) for $ 50,000 damages for death of plaintiff's husband. The jury returned a verdict for the full amount sued for, after which the trial court ordered a remittitur of $ 20,000. This remittitur was made and judgment was entered for $ 30,000. Defendant has appealed from this judgment.

This is the second appeal in this case, former judgment (for same amount after same remittitur) having been reversed and the cause remanded because of prejudicial argument by plaintiff's counsel. [Hancock v. Kansas City Terminal Ry Co., 339 Mo. 1237, 100 S.W. (2d) 570.] The full statement of the facts appears in that opinion (100 S.W.2d l. c. 571-572), and reference is made thereto for the statement of facts, which is hereby adopted. Any different or additional showing, in so far as this may affect questions for decision herein, will be referred to later in this opinion. Plaintiff's theory of negligence was that, in starting to move an interstate car, Hancock (switch foreman) threw the switch and his switch engine, with the tender ahead, started to back (west) on the lead track; that Hancock then attempted to get on the footboard of the moving tender from the south side of the track; and that switchman McCormack, who was riding on this footboard, standing on the inside (north end) near the drawbar, suddenly stepped to outside (south end), came in contact with Hancock, and caused him to fall in front of the tender by which he was run over and killed. Plaintiff's eyewitness Reinhardt, was not present at the second trial, and his former testimony was read. (He was in a Veteran's hospital.) Switchman McCormack, who denied that he changed his position or came in contact with Hancock, testified to substantially the same version as at the first trial. There was likewise substantially the same testimony, as to the main facts, by other witnesses.

Defendant's first assignment is that "the trial court erred in the admission of evidence of witness Weston, a brother of Mrs. Hancock, in permitting him to answer the question of plaintiff's counsel whether McCormack came to the home of deceased's widow and stood by the coffin while her husband's body lay there awaiting burial and that he was shaking and showing emotion, and that Weston then followed him out, after observing what he had described, and when he asked him how the accident happened to John permitted him to testify that McCormack said, 'I and John got mixed up, we was going down to couple on to some cars and I got over on the south end of the footboard in a position to make the coupling, thinking that John would get on the footboard next to the drawbar and we came together.'" Concerning this, defendant says: "Whether McCormack shook or showed emotion while standing by the coffin was not a pertinent issue in the case and therefore was not the subject of impeachment. Furthermore, the evidence as a whole was inadmissible since there was no proper identification of McCormack by Weston."

The foundation for such impeachment was in McCormack's cross-examination by plaintiff's counsel, as follows:

"Q . . . Now, after this thing was all over and while the body of this man lay out at his home, you went out there, didn't you? A. Yes sir. . . .

"Q. Do you deny that you...