Holtz v. Daniel Hamm Drayage Co.

• Decision Date: 08 March 1948
• Docket Number: 40480
• Citation: 209 S.W.2d 883,357 Mo. 538
• Parties: Mathias Holtz v. Daniel Hamm Drayage Company, Inc., a Corporation, Appellant
• Court: Missouri Supreme Court

209 S.W.2d 883

357 Mo. 538

Mathias Holtz v. Daniel Hamm Drayage Company, Inc., a Corporation, Appellant

No. 40480

Supreme Court of Missouri

March 8, 1948

Motion for Rehearing or to Transfer to Banc Overruled April 12 1948.

Appeal from Circuit Court of City of St. Louis; Hon. Harry F Russell, Judge.

Affirmed.

Thomas J. Cole and John J. Cole for appellant

(1) The court erred in submitting the case to the jury, and having thus erred repeated the error in not sustaining the motion for new trial for the reason the petition does not state facts on which relief should be granted. In other words, the petition wholly fails to state a cause of action. Sec. 36 of Code, Laws 1943, p. 369; Langenberg v. City of St Louis, 197 S.W.2d 621. (2) The court erred in giving and reading to the jury Instruction 1, as it is not within the pleadings nor the evidence and proceeds on an entirely different theory and allows recovery without requiring proof of any causel negligence on defendant's part. Krelitz v. Calcaterra, 33 S.W.2d 909; Brandt v. Farmers Bank, 177 S.W.2d 667; State ex rel. Newspaper Assn. v. Ellison, 176 S.W. 11; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; 38 Am. Jur., pp. 665-666. (3) The court erred in not declaring a mistrial as requested because of plaintiff's counsel's improper statement while plaintiff was on the stand that, "You are the father of some seven children, I believe." Ex parte Dick & Bros. Brewery Co. v. Ellison, 287 Mo. 139, 229 S.W. 1059; 64 C.J., p. 280, sec. 298; McCarthy v. Spring Valley Coal Co., 232 Ill. 473, 83 N.E. 957; Dayharsh v. Hannibal & St. Joseph R. Co., 103 Mo. l.c. 577; Stephens v. Hannibal & St. Joseph R. Co., 96 Mo. 207. (4) The court erred in not handing the jury the hospital record as the parties, through their attorneys, had stipulated that it would be given to the jury. Bankers Life Co. of Des Moines v. Butler, 122 S.W.2d 1077; Dallas Ry. & Terminal Co. v. Durkee, 193 S.W.2d 223. (5) The court erred in permitting plaintiff's counsel to make a highly inflammatory argument to the jury and in not reprimanding counsel for so doing and in not telling the jury to disregard such appeals to passion and prejudice. N.Y. Central R. Co. v. Johnson, 279 U.S. 319; London Guarantee & Accident Co., Limited, v. Woelfle, 83 F.2d 325; Contra -- Copeland v. Terminal Railroad Assn., 353 Mo. 433, 182 S.W.2d 600. (6) The court erred in not setting aside the verdict because its large amount is proof of the fact it was inspired by passion and prejudice on the part of the jury. It is plainly and grossly excessive. (7) The court erred in not permitting defendant's counsel to argue that if plaintiff's fellow-workers or his bosses felt he was injured, plaintiff would have produced them as witnesses. Waeckerly v. Colonial Baking Co., 228 Mo.App. 1185, 67 S.W.2d 779; McInnis v. St. Louis Southern, 341 Mo. 677, 108 S.W.2d 113; Cooper v. Met. Life Ins. Co., 94 S.W.2d 1070; Huskey v. Met. Life Ins. Co., 94 S.W.2d 1075.

Mark D. Eagleton, Mortimer A. Rosecan and Wm. H. Allen for respondent.

(1) A general charge of negligence, which is predicated on an act of the defendant causing the injury, is good as against the objection that no cause of action is stated; it is not necessary to state the specific facts showing the negligence in order to state a cause of action. Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601; Zichler v. St. Louis Pub. Serv. Co., 332 Mo. 902, 59 S.W.2d 654; State ex rel. Hopkins v. Daues, 319 Mo 733, 6 S.W.2d 893; Kramer v. Kansas City P. & L. Co., 311 Mo. 369 279 S.W. 43; Watts v. Moussette, 337 Mo. 533, 85 S.W.2d 487. (2) A petition which charges negligence in general terms, without more, which is not attacked by motion to make more definite and certain, is good after verdict and judgment. Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601; State ex rel. Brancato v. Trimble, 322 Mo. 318, 18 S.W.2d 4; State ex rel. Hopkins v. Daues, 319 Mo. 733, 6 S.W.2d 893; Watts v. Moussette, 337 Mo. 533, 85 S.W.2d 487. (3) The required finding that defendant's chauffeur failed to exercise ordinary care and was guilty of negligence comprehends and is equivalent to a finding that he knew or by the exercise of ordinary care could have known that to operate the hoist, under the circumstances, lifting the end of the box, would cause the truck to move back upon plaintiff. Kamer v. M., K. & T.R. Co., 326 Mo. 792, 32 S.W.2d 1075; Messing v. Judge & Dolph Drug Co., 322 Mo 901, 923, 18 S.W.2d 408; Jenkins v. Mo. State Life Ins. Co., 334 Mo. 941, 69 S.W.2d 666; Hulsey v. Tower Grove, Quarry & Const. Co., 326 Mo. 194, 30 S.W.2d 1018; Simmons v. Kansas City Jockey Club, 334 Mo. 99, 66 S.W.2d 119; Wellinger v. Terminal Railroad Assn., 353 Mo. 670, 183 S.W.2d 908. (4) It follows that the instruction is within both the pleadings and the evidence. The petition, alleging negligence generally, is broader than the evidence; but the instruction properly submitted the specific negligence shown by the evidence. Grimes v. Red Line Service Co., 337 Mo. 743, 85 S.W.2d 767; Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872. (5) The testimony as to the issues tried came in below without objection, and hence, with the implied consent of the defendant. There was not a suggestion that such issues were beyond the scope of the pleadings. Under such circumstances the issues tried are to be treated in all respects as if specifically raised by the pleadings; and, if need be, the petition may be regarded as having been amended to conform to the evidence. Sec. 82, General Code for Civil Procedure, Laws 1943, p. 378; Philibert v. Benjamin Ansehl Co., 342 Mo. 1239, 119 S.W.2d 797. (6) The trial court did not err in overruling appellant's motion to declare a mistrial because of plaintiff's testimony that he was the father of seven children. The trial court promptly sustained defendant's objection and instructed the jury to disregard the answer. The presumption is that the jury did disregard it. Under such circumstances, the refusal of the trial court to declare a mistrial does not constitute reversible error. Evans v. Mo. Pac. R. Co., 342 Mo. 420, 116 S.W.2d 8; Stith v. Newberry Co., 336 Mo. 467, 79 S.W.2d 447; Grott v. Johnson, Stephens & Shinkle Shoe Co., 2 S.W.2d 785; Harrison v. Kansas City Elec. Co., 195 Mo. 606, 93 S.W. 951, 7 L.R.A. (N.S.) 293; Consolidated School District v. West Mo. Power Co., 329 Mo. 690, 46 S.W.2d 174; Snyder v. American Car & Foundry Co., 322 Mo. 147, 14 S.W.2d 603; Holman v. Terminal Railroad Assn., 125 S.W.2d 527; Balsano v. Madden, 138 S.W.2d 660; Moses v. Kansas City Pub. Serv. Co., 188 S.W.2d 538. (7) The trial court, in supervising the trial, is clothed with a wide discretion to determine what course should be pursued in the case of objectionable testimony or argument, that is, whether it will suffice to instruct the jury to disregard the same or whether a mistrial should be declared. And the course pursued by the court in any given instance will not be disturbed unless it appears that the discretion reposed in it has been manifestly abused. City of Kennett v. Construction Co., 273 Mo. 279, 202 S.W.2d 558; Kelso v. W.A. Ross Construction Co., 337 Mo. 202, 85 S.W.2d 527; Bobos v. Krey Packing Co., 323 Mo. 224, 19 S.W.2d 630; Crews v. K.C. Public Service Co., 341 Mo. 1090, 111 S.W.2d 54; Stith v. Newberry Co., 336 Mo. 467, 79 S.W.2d 447; Moses v. K.C. Public Service Co., 188 S.W.2d 538. (8) The action of the trial court at the close of the case in not giving to the jury the hospital records to take to the jury room, stating that all exhibits would be available to the jurors if they should ask for them, did not constitute error. Under our law, what documents or other exhibits should be taken by the jurors to the jury room is a matter to be determined by the trial court in the exercise of its discretion. State v. Damon, 350 Mo. 949, 169 S.W.2d 382; Dougherty Real Estate Co. v. Gast, 95 S.W.2d 877; R.C. Stone Milling Co. v. McWilliams, 121 Mo.App. 319, 98 S.W. 828. (9) Plaintiff's counsel made no remarks of an inflammatory character; none tending to arouse hostility or resentment toward defendant. And whether remarks of counsel in argument are prejudicial is always a matter of resting largely within the discretion of the trial court, whose rulings thereon will not be disturbed on appeal except for manifest abuse of such discretion. Cordray v. City of Brookfield, 88 S.W.2d 161; Burow v. Red Line Service, 343 Mo. 605, 122 S.W.2d 919; Goyette v. St. Louis-S. F. Ry. Co., 37 S.W.2d 552; Crews v. Kansas City Pub. Serv. Co., 341 Mo. 1090, 111 S.W.2d 54. (10) The record (and plaintiff's brief as well) discloses that appellant's counsel did not interpose a word of objection to the argument of plaintiff's counsel now complained of. It is the settled law of this state -- whatever it may be in other jurisdictions -- that complaint cannot be made on appeal of alleged improper argument to which no objection was interposed below. Randol v. Kline's, Inc., 330 Mo. 343, 49 S.W.2d 112; Leingang v. Geller, Ward & Hasner, 335 Mo. 549, 73 S.W.2d 256; Dodd v. Missouri-Kansas-Texas R. Co., 353 Mo. 799, 184 S.W.2d 454; Kent v. L.B. Price Mercantile Co., 17 S.W.2d 983. (11) A trial court, in supervising the amount of a verdict, is clothed with discretionary power the exercise of which will not be disturbed on appeal except for obvious abuse thereof. Gieseking v. Litchfield & Madison Ry. Co., 344 Mo. 672, 127 S.W.2d 700; Schroeder v. Wells, 298 S.W. 806. (2) And this court is thoroughly committed to the doctrine that appellate courts "should not disturb a verdict for damages on the theory that it is excessive unless it is apparent from the record that the verdict is grossly excessive"; that it is ...