Hartley v. Steiman

• Decision Date: 14 November 1966
• Docket Number: No. 51642,No. 2,51642,2
• Citation: 408 S.W.2d 81
• Parties: Virginia Louise HARTLEY, Appellant, v. Honey STEIMAN, Respondent
• Court: Missouri Supreme Court

Page 81

408 S.W.2d 81

Virginia Louise HARTLEY, Appellant, v. Honey STEIMAN, Respondent.

No. 51642.

Supreme Court of Missouri, Division No. 2.

Nov. 14, 1966.

Richard F. Adams, Winger, Nugent, Rayburn & Adams, Kansas City, for appellant.

E. E. Thompson, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondent.

BARRETT, Commissioner.

On January 8, 1963, at 7:50 a.m., the appellant Virginia Hartley and the respondent Honey Steiman were involved in a collision of their respectively driven automobiles at the intersection of 71st Street Terrace and Ward Parkway. Upon this appeal the details of the occurrence are not too important, it is sufficient to say that Mrs. Hartley was eastbound on 71st Street Terrace to Ward Parkway and Mrs. Steiman was traveling north on Ward Parkway at a speed of approximately 20 miles an hour when their automobiles collided in the intersection. Mrs. Hartley claiming $75,200 damages submitted her right to recover upon the single hypothesis that 'defendant failed to keep a careful lookout.' And conversely the respondent Mrs. Steiman submitted her case and defense upon the hypothesis that plaintiff 'failed to keep a careful lookout.' The jury returned a verdict for the defendant Steiman and Mrs. Hartley has appealed.

Her sole claim of error and right to a new trial is that the court erred in overruling her 'objections to the prejudicial argument of defendant's attorney.' It is said that the argument was improper because 'it referred to an issue that had not been submitted to the jury by the court's instructions and which had been voluntarily abandoned by defendant.' Furthermore, it is said that the court's ruling in the presence of the jury 'sanctioned and approved such improper argument and led the jury to believe that they might base their argument upon an issue which had not been submitted to them by the court's instructions and thereby constituted reversible error.' In short, the point is that both plaintiff and defendant submitting their respective theories upon 'failure to keep a careful lookout' the appellant contends that there was manifest prejudicial error entitling her to a new trial in this court when defendant's counsel argued the subject of right-of-way and in so doing referred to Section 58.390 of Kansas City's traffic code.

At the outset it is assumed that 'jury arguments which are outside the submitted issues and calculated to mislead and prejudice, or which urge a theory of claim or defense which the evidence does not justify, or which conflict with the trial court's instructions in submitting the issue, should not be permitted.' Moss v. Mindlin's, Incorporated, Mo., 301 S.W.2d 761, 766. It does not necessarily follow as a matter of course in every case, however, merely because a matter outside the submitted issues has been argued, that a new trial will be granted. Primmer v. American Car & Foundry Co., Mo.App., 299 S.W. 825. In the first place the argument complained of here was not so vituperative, personal and manifestly inflammatory as to require a new trial even in the absence of proper and sufficient objections to the argument or exception to the court's tacit approval. Critcher v. Rudy Fick, Inc., Mo., 315 S.W.2d 421; Butcher v. O'Connor, Mo., 401 S.W.2d 490; Prague v. Eddy, 358 Mo. 327, 214 S.W.2d 521. Another and significant factor overlooked by the appellant, in view of the type of argument complained of, is that here the trial court considered these contentions when it ruled on the motion for a new trial and therefore she is not in the more favorable position she might have occupied had the court sustained her motion and granted a new trial. Primmer v. American Car & Foundry Co., supra; Robbins v. Brown-Strauss Corp., 363 Mo. 1157, 257 S.W.2d 643; Wilkinson v. Wilkinson, 222 Mo.App. 1244, 8 S.W.2d 77. As stated, here the court denied the motion for a new trial and assuming that the argument was improper the question is whether the court abused its discretion. Moss v. Mindlin's, Incorporated, supra; Snell v. Overfelt, Mo.App., 307 S.W.2d 716.

The problem arose in this background: At the conclusion of all the evidence and on the morning of the third day of trial defendant's counsel offered in evidence Section 58.390 of the traffic code. Plaintiff's counsel inquired: 'That is the entire Ordinance?' Defendant's counsel said it was and plaintiff's counsel said, 'No objection.' Defendant's counsel then proceeded to read 'Section B' of the ordinance to the jury. In part that section required vehicles to stop at a stop sign and to 'proceed carefully and cautiously, yielding to vehicles not so obliged to stop which are within the intersection.' Plaintiff's counsel asked to see the section, there was colloquy as to sections 'A and B,' defendant's counsel offered to read the whole section and finally plaintiff's counsel said, 'I wonder if you would mind reading 'A' too,' and defendant's counsel read that section to the jury.

In plaintiff's opening argument her counsel told the jury that the case was simple 'we've only got the one issue in it, and that is lookout.' Then plaintiff's counsel said 'This is not a case of right of way. Now, there is no question of right of way in this case. The Court has instructed you the only issue in this case is lookout. Now, just keep that in mind, lookout; nothing about right of way.' After defendant's counsel had argued at some length he said to the jury that plaintiff's counsel 'states that the right of way is not involved in this case' and after some colloquy the court said '(t)he objection is overruled.' Defendant's counsel proceeded to argue concerning the ordinance and said among other things that the ordinance 'states that when you start up from a Stop sign, you must proceed carefully and cautiously and keep a careful lookout to...