Hart v. Forbes, WD

• Decision Date: 23 February 1982
• Docket Number: No. WD,WD
• Citation: 633 S.W.2d 90
• Parties: Jayson W. HART, a minor, by his mother and Next Friend, Beverly J. Hart, Plaintiff-Appellant, v. Catherine Dean FORBES, Defendant-Respondent. 32546.
• Court: Missouri Court of Appeals

Page 90

633 S.W.2d 90

Jayson W. HART, a minor, by his mother and Next Friend Beverly J. Hart, Plaintiff-Appellant, v. Catherine Dean FORBES, Defendant-Respondent.

No. WD 32546.

Missouri Court of Appeals, Western District.

Feb. 23, 1982.

Motion for Rehearing and/or Transfer to Supreme Court

Overruled and Denied May

4, 1982.

Application to Transfer Denied June 14, 1982.

John H. Norton of Norton, Pollard & Norton, Inc., North Kansas City, for plaintiff-appellant.

Walter R. Simpson and James G. Lindquist of Sheridan, Sanders & Simpson, P. C., Kansas City, for defendant-respondent.

Before CLARK, P. J., and MANFORD and KENNEDY, JJ.

MANFORD, Judge.

Plaintiff sought recovery of damages for personal injuries. Judgment was entered upon a jury verdict for defendant. The judgment is affirmed.

Plaintiff presents three points of error, alleging the trial court erred (1) by allowing improper argument of defendant; (2) by denying plaintiff's reference to a dollar amount in the final portion of the closing argument; and (3) by restricting plaintiff's voir dire examination.

The sufficiency of the evidence is not challenged. Jayson Hart, a minor aged 5 years, was struck by an automobile driven by 17-year-old Catherine Forbes, whom during trial, was called by plaintiff as a witness. The accident occurred on April 9, 1978 in Kansas City North, Clay County, Missouri. Neither the weather nor road conditions entered into the issues. Defendant was northbound on North Highland Street at about 25 m.p.h. when she observed a group of children playing in the vicinity. ¹ Defendant slowed her vehicle to 15 m.p.h. and continued northward, when she observed plaintiff in a driveway at the west edge of the street to her left and ahead of her vehicle. The defendant continued at a speed of about 15 m.p.h. She then heard someone yell and observed a woman (later identified as plaintiff's mother) on a porch to her right. From the corner of her eye, the defendant observed plaintiff run into the street. Defendant attempted to stop her vehicle. Plaintiff was struck by the right front of defendant's vehicle, and there was evidence of ten feet of skid mark. Defendant's vehicle moved two to three feet after impact. Plaintiff's action was on primary negligence and the jury was so instructed. The jury returned a unanimous verdict for defendant.

In his first point, plaintiff charges and argues that the trial court erred in overruling his objection to argument by defendant. Plaintiff contends that defendant was, over objection, permitted to argue the contributory negligence of plaintiff when contributory negligence was never pleaded or instructed upon, and that as a matter of law, plaintiff (because of his age (5 years) ) could not be contributorily negligent.

Defendant counters plaintiff's contentions by arguing that defendant's final argument was in line with the court's instruction upon the issue of causation, and not contributory negligence. The challenged portion of the argument and the court's ruling thereon are as follows:

"Folks, you know what the direct cause of this accident was. It was Jayson- MR. NORTON: (Plaintiff's counsel) Your Honor, I'm going to object to that. Contributory negligence is not an issue in these proceedings, and I ask that you advise the jury accordingly.

THE COURT: Overruled. Argument of counsel.

MR. SIMPSON: The direct cause of this accident was Jayson Hart's deciding, for whatever reason it was, to run across that street when that car had to be so close. This accident wouldn't have happened if Jayson Hart had stayed on the curb, or if he walked out into the south-bound lane-let that car pass by. The direct cause of this accident was Jayson Hart-not anything Cathy Forbes did.

Well, I want to talk to you just a minute about the damages in this case. I don't think it will be necessary for you to get to the issue of damages-because the Court tells you that if nine or more of you agree, nine or more of you can bring in a verdict in this case. And if you get into the jury room and after you've selected your foreman you take a vote on the issue of liability, or, as Mr. Norton ways (sic), whose fault it was, and nine or more of you agree that it was not Cathy Forbes' fault-her conduct did not directly cause this accident, then that's your verdict and there's no reason to go any further."

No further objection was raised by plaintiff. The record further reveals the following within the final portion of plaintiff's closing argument:

(By Mr. Pollard, for the plaintiff)

"A couple of responses to what Mr. Simpson says. What he has told you in effect, ladies and gentlemen, is that Jayson Hart was negligent in this case and that he cannot recover. What he is saying in effect to this little boy, who was five years of age at the time of this accident: 'You were negligent, and you can't recover in this case.'

You'll find no instruction whatsoever that says you can find him negligent; because that is steeped in the law and steeped in common sense: you don't hold five-year-old children to the same degree of care that we have. So don't let Mr. Simpson mislead you in that regard."

The trial court is vested with broad discretion concerning final argument. Eddings v. Keller, 400 S.W.2d 164 (Mo.1966). See generally, Pappas v. Bi-State Development Agency, 565 S.W.2d 475 (Mo.App.1978); Jenson v. Walker, 496 S.W.2d 317 (Mo.App.1973). This discretion, however, is not so broad as to permit argument beyond issues, or record and urge prejudicial matters or urge a theory of claim or defense which the law does not justify or which conflicts with the trial court's instructions. Carrel v. Wilkerson, 507 S.W.2d 82 (Mo.App.1974) and Stark v. Vanderpool, 613 S.W.2d 203 (Mo.App.1981). The determination of the prejudicial effect of final argument is within the discretion of the trial court and such discretion will not be disturbed absent the showing of an abuse thereof.

The instant record reveals that counsel for defendant, prior to the objection and the ruling thereon, had made reference to the court's instruction. This reference included evidence upon the matters of lookout, stopping, slowing and sounding a warning. The reference further discussed that if the jury believed from the evidence that the defendant was negligent, and as a direct result of such negligence plaintiff had been injured, then they should find for the plaintiff. As can be observed from the above quoted portion from the record, counsel for defendant then stated, "Folks, you know what the direct cause of this accident was. It was Jayson ...", and plaintiff interceded with his objection. After the ruling, defense counsel continued without further objection.

Defendant argues that the argument was on the issue of causation, not contributory negligence. Defendant further contends that the evidence on causation was substantial to show that defendant's acts and omissions were not the direct and proximate cause of plaintiff's injuries. In the course of the trial, plaintiff called defendant as a witness. The evidence obtained by this approach supports defendant's contention that plaintiff's acts/omissions and not those of defendant, were the direct and proximate cause of the accident. Defendant correctly points out that the burden of proof as to causation rests with the plaintiff, Osterhaus v. Gladstone Hotel Corporation, 344 S.W.2d 91 (Mo.1961), and this same burden applies to minors as plaintiffs. Kramer v. May Lumber Co., 432 S.W.2d 617 (Mo.App.1968) and Beuttenmuller v. Vess Bottling Co. of St. Louis, 447 S.W.2d 519 (Mo.1969).

An overview of defendant's argument discloses that it was confined to the cause of the accident. It contained no reference to plaintiff's lack of care, but was directed to causation. The defendant had the right to argue causation. The jury was instructed that it had to believe and find that the defendant was negligent and that such negligence caused plaintiff's injuries. The record further reveals a solitary objection interposed prior to any specific reference to plaintiff's acts or omissions. There was no request for a continued objection, and while it is clear from such objection what plaintiff was complaining of, there was no further objection to defendant's argument. In addition, plaintiff, in the final portion of his closing argument, argued that he could not be negligent. It was these various events which the trial court had before it.

The trial court was in a position to observe the focus of defendant's argument and "it is within the broad discretion of the trial court to determine the prejudicial effect of the argument ..." Stark, supra, 613 S.W.2d at 204. It cannot be concluded from review of the evidence upon the record before this court, coupled with the reading of the final argument by counsel for the parties, that any collateral issue or any theory of claim or defense which the law does not justify and which conflicted with the court's instruction was presented herein. There was no abuse of discretion by the trial court. Point (1) is found to be without merit and is ruled against plaintiff.

In point (2), plaintiff charges that the trial court erred by sustaining defendant's objection. Plaintiff claims that this was tantamount to prohibiting him from arguing a dollar amount for damages in the final portion of his closing argument. Defendant had objected because of plaintiff's failure to mention a dollar amount within the initial portion of his closing argument.

It should be pointed out that the jury returned a unanimous verdict for defendant. Plaintiff's argument is twofold. First, plaintiff contends that comments in the initial portion of his closing argument sufficiently included reference to damages, enabling him to urge a specific dollar amount in the final phase of his argument. Secondly, plaintiff contends that defendant discussed the issue of damages which further enabled plaintiff to discuss a specific dollar amount. The...