Illinois Terminal R. Co. v. Friedman

• Citation: 210 F.2d 229
• Decision Date: 17 February 1954
• Docket Number: No. 14817.,14817.
• Parties: ILLINOIS TERMINAL R. CO. v. FRIEDMAN.
• Court: U.S. Court of Appeals — Eighth Circuit

210 F.2d 229 (1954)

ILLINOIS TERMINAL R. CO. v. FRIEDMAN.

No. 14817.

United States Court of Appeals Eighth Circuit.

February 17, 1954.

Wayne Ely, St. Louis, Mo., filed petition for appellant.

No appearance by appellee on petition for rehearing.

Before SANBORN, THOMAS, and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

The defendant (appellant) has filed a petition for rehearing.

Two questions were presented in the brief of the defendant which were not covered by our opinion in this case, namely (1) whether the trial court erred in refusing to permit the plaintiff's (appellee's) daughter to be cross-examined by the defendant, and (2) whether "The verdict of the jury resulted from prejudice, influenced by improper argument."

Neither of these questions was mentioned on oral argument and we assumed from the remarks of counsel for the defendant that neither was relied upon for reversal. We decided the only two questions that were argued orally, but are now advised that counsel who argued the case for the defendant did not intend to limit the questions for decision to those orally argued, and that the first of the two questions which we did not decide is regarded as of controlling importance.

The assertion that the verdict of the jury was the result of prejudice induced by improper argument of plaintiff's counsel was, of course, without any merit, since the record did not contain all of the arguments. This Court has repeatedly stated the obvious proposition that, in order to be able to decide whether arguments were both improper and prejudicial, it is necessary to have included in the record the arguments made by counsel on both sides. Chicago & N. W. R. Co. v. Kelly, 8 Cir., 74 F.2d 31, 37; London Guarantee & Accident Co. v. Woelfle, 8 Cir., 83 F.2d 325, 344. While counsel for the defendant has not in his petition for rehearing referred to this question, we prefer to decide it because of our apparent mistake in assuming that the questions which were not argued orally were waived.

There is substance to the defendant's assertion that the District Court erred in refusing to permit the defendant's counsel to cross-examine the plaintiff's married daughter, who was in the automobile which her mother was driving at the time of the collision in which both were injured and which the mother blamed upon the defendant.

The daughter was a material witness. She became a vulnerable witness so far as her mother's claim against the defendant was concerned, because, prior to the trial, she made a settlement for her own injuries with the liability insurer of the automobile her mother was driving when the accident occurred. The daughter had given the insurer a covenant not to sue her mother or father or his employer, who owned the automobile. This conduct on the daughter's part was inconsistent with the theory that she considered that the defendant was solely to blame for the accident and that her mother was free from contributory negligence. See and compare London Guarantee & Accident Co. v. Woelfle, supra, 83 F.2d 325, 336-337. Had the plaintiff called the daughter as a witness, she could have been cross-examined by the defendant about this settlement. The plaintiff did not call her. Since she was a material witness, whom the plaintiff would naturally have called if her testimony would have been helpful, the defendant, at the close of the plaintiff's case, had the benefit of a strong presumption that, if the daughter had been called upon to testify, her testimony would have been unfavorable to her mother.

The defendant's counsel, however, was not satisfied with having that presumption as a basis for jury argument. He called the daughter to the stand as the defendant's own witness. As reasonably might have been anticipated, her testimony, adduced by defendant's counsel, corroborated that of her mother and was to the effect that her mother was not negligent in her handling of the automobile at the time of the accident. The daughter was asked whether she did not make a claim against her mother, and said "No". She was then asked, "Were you paid any money?" Counsel for the plaintiff then objected on the ground that opposing counsel was trying "to impeach his own witness on matters that are not proper." The defendant's counsel then claimed surprise, and offered to show by the witness that on April 28, 1951, she was paid $4,380 by the liability insurer of the automobile involved in the accident for agreeing not to...