Hill v. Barton, s. 38891

• Citation: 579 S.W.2d 121
• Decision Date: 30 January 1979
• Docket Number: 38867,Nos. 38891,s. 38891
• Parties: Patricia Ann HILL and Harold Hill, Plaintiffs-Appellants, v. Gary Paul BARTON, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 121

579 S.W.2d 121

Patricia Ann HILL and Harold Hill, Plaintiffs-Appellants, v. Gary Paul BARTON, Defendant-Appellant.

Nos. 38891, 38867.

Missouri Court of Appeals, Eastern District, Division Two.

Jan. 30, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 16, 1979.

Donald S. Hilleary, Clayton, Keith W. Hazelwood, St. Charles, Wuestling & James, Richard C. Wuestling, III, St. Louis, for plaintiffs-appellants.

Kortenhof & Ely, Ben Ely, Jr., Brent W. Baldwin, St. Louis, for defendant-appellant.

REINHARD, Judge.

This is a suit growing out of an intersection collision in which plaintiffs sought damages for personal injuries, property loss, and loss of services, and defendant counterclaimed for property damage. A jury trial resulted in a verdict and judgment against plaintiffs on their claims and against defendant on his counterclaim. All parties appeal.

On August 2, 1974, plaintiff Patricia Ann Hill was driving an automobile in a southerly direction on Lindbergh. She moved into the left-turn lane near Lindbergh's intersection with Pershall, intending to turn left and to proceed in an easterly direction on Pershall. Defendant Gary Paul Barton was driving an automobile in a northerly direction on Lindbergh, near its intersection with Pershall. The intersection was controlled by an automatic traffic light sequence. Southbound traffic on Lindbergh was permitted to turn left onto Pershall from a left-turn only lane at a time when the light controlling northbound traffic on Lindbergh was red. The testimony of the parties was in conflict as to which phase of the traffic light was in effect at the time their automobiles collided in the intersection.

According to Patricia Hill two automobiles were ahead of her when she pulled into the left-turn lane in preparation for the turn. All three automobiles were stopped on a green light, awaiting the left-turn arrow. Plaintiff Patricia Hill testified that the green arrow appeared, and the two vehicles ahead preceded her into the intersection and completed the turn onto Pershall.

Defendant testified the signal controlling northbound traffic was green as he neared the intersection with Pershall, traveling in the median or inside northbound lane; he had intended to proceed through the intersection north on Lindbergh. When he was some distance south of the intersection, he observed a southbound vehicle turning left onto Pershall, but it was sufficiently far ahead as to require no braking or other avoidance action. He stated the traffic signal changed from green to yellow shortly after he entered the intersection, and while he was passing Pershall Road, plaintiff entered his path.

Plaintiffs submitted in the disjunctive two issues on primary negligence, signal violation or failure to keep a careful lookout, and two issues on humanitarian negligence, failure to warn or to stop. Defendant submitted two issues on his primary negligence counterclaim, signal violation or failure to keep a careful lookout. Contributory negligence instructions as to plaintiffs' primary negligence instructions and defendant's counterclaim instruction were submitted.

Plaintiffs argue several points of error. Initially, we consider their contention that the trial court committed prejudicial error in permitting defendant to raise in closing argument the issue of contributory negligence as an absolute defense to plaintiffs' claims. Inasmuch as plaintiffs submitted their case on both primary and humanitarian negligence, limited discussion of plaintiff Patricia Hill's alleged contributory negligence as the issue pertains to and effects the claim of primary negligence would be permissible and appropriate. The matter of contributory negligence has no bearing on plaintiffs' humanitarian submission, however.

We view the argument as a whole in determining whether certain comments were improper. Moreover, we note that when, as here, distinct legal issues are involved, it was the obligation and duty of the attorneys in their closing arguments to distinguish between the issues about which they are commenting when their comments were appropriate to one issue and not appropriate to the other. Jones v. Gooch, 453 S.W.2d 653, 654 (Mo.App.1970).

In his closing argument, defense counsel made several references to the question of contributory negligence, but on only one occasion did plaintiffs object, which objection was overruled. Early in defense counsel's argument the following occurred:

Mr. Ely:

When we started this trial last Wednesday and selected you as jurors, I asked all of you if you could follow the presumption of law here (that) before any party here is entitled to recover damages . . . you would have to prove (sic) that the accident was the other person's fault under the Instructions read to you by Judge Ruddy. Just because your car is damaged in an accident, in other words, that does not mean you have an automatic right to recover against the other person who is in it. They must prove Gary and Mr. and Mrs. Hill's accident, under these Instructions, was the other person's fault before they are entitled to recover. And, if they don't do that, or if you believe under these instructions both are to blame, then your verdict should be against both of them. (Emphasis added.)

MR. HILLEARY: Objection, it doesn't state that.

THE COURT: Overruled. The Jury will be guided by the instructions.

About midway through his closing argument, defense counsel made the following comments with specific reference to plaintiffs' submission of humanitarian negligence:

Take these instructions with you to the jury room and I'm sure you will read them carefully . . . Seven (7) and Eight (8) (plaintiffs' humanitarian submissions) say basically that under our law a person who had the last chance, really has the last chance, is supposed to avoid an accident. This instruction tells you the verdict could be for plaintiff if Gary had time to avoid this accident even though Pat Hill ran a red light, . . . .

But toward the end of his closing argument, attorney for the defendant stated:

Now, you will fill out this verdict form if you felt no one was entitled to recovery. Both Pat Hill and Gary, and That under the instructions both are to blame and both are at fault, then neither are (sic) entitled to recover against the other. And this is the verdict that none of the lawyers are (sic) asking for but the one (1) you should fill out if you feel neither party should recover from the other and both are at fault. (Emphasis added.)

Determining the bounds of legitimate argument and the effect of allegedly prejudicial argument is especially troublesome in multiple-claim litigation involving both primary and humanitarian submissions. The permissible field of jury argument is broad, though, and the regulation of argument is a matter largely within the discretion of the trial judge. "The trial court possesses a coign of vantage which best permits it to observe the proceedings and judge the prejudicial force exerted on the jury by counsel's comments." Schmid v. Langenberg, 526 S.W.2d 940, 946 (Mo.App.1975); Carrel v. Wilkerson, 507 S.W.2d 82, 85 (Mo.App.1974); White v. Gallion, 532 S.W.2d 769, 771 (Mo.App.1975). The proposition was succinctly stated in Carrel v. Wilkerson, supra at 86:

While a trial court, because of its coign of vantage of the proceedings and their effect on the jury, has a large discretion in permitting, restraining and purging final argument . . ., there is no room for the exercise of judicial discretion on an issue of law.

See also Jones v. Gooch, 453 S.W.2d 653, 655 (Mo.App.1970).

We hold defense counsel misstated the law when he told the jury, without qualifications, that neither party could recover if the jury found both were at fault for the accident. The import of these statements was that if plaintiff and defendant were both negligent, neither was entitled to a favorable verdict on his claim against the other. Since plaintiffs submitted on both primary and humanitarian negligence, and defendant submitted only on primary negligence, the statements of defense counsel were correct only insofar as they applied to the primary submissions, but incorrect as regards plaintiffs' humanitarian submission. The question of Patricia Hill's negligence has absolutely no relevance to plaintiffs' humanitarian claim, yet the jury might have been led to infer otherwise based on defense counsel's statements.

In retort, defense counsel argues: Given the fact that the record itself indicates that the jury was constantly referred to the instructions, both by the Judge and by the defendant's counsel, (In each instance, counsel prefaced his statements with "under these (the) instructions . . . .") and the additional fact that the trial judge, in overruling plaintiffs' request for a new trial, of necessity, determined that the argument was not prejudicial, defendant respectfully submits that contributory negligence was, in fact, not injected as a defense to humanitarian negligence.

We disagree. The phrase "under these (the) instructions" did not refer to specific numbered instructions, and it did not refer specifically to the primary submissions. The phrase was overly general in tenor and was as much as to say, "Under the law of this case . . . ."

The court overruled an objection to the statement, "If under these instructions you find that both are at fault, then neither (is) entitled to recover and then your verdict should be against both of them." The court admonished the jury to "be guided by the instructions." The inescapable inference to be drawn by the jury was if plaintiff was contributorily negligent, she could not recover under any of the theories of negligence on which she submitted. This clearly is a misstatement of the law. And "(i)f the trial court overrules the objection (to a misstatement), thereby condoning the misstatement, reversible error is almost inevitable." Halford v. Yandell, 558 S.W.2d...