Jackman v. St. Louis & H. Ry. Co.

• Citation: 206 S.W. 244
• Decision Date: 06 November 1918
• Docket Number: No. 16090.,16090.
• Court: Missouri Court of Appeals
• Parties: JACKMAN v. ST. LOUIS & H. RY. CO.

206 S.W. 244

JACKMAN v. ST. LOUIS & H. RY. CO.

No. 16090.

St. Louis Court of Appeals. Missouri.

November 6, 1918.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

"Not to be officially published."

Action by Mary Jackman against the St. Louis & Hannibal Railway /Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Sutton & Huston, of Troy, Hostetter & Haley, of Bowling Green, P. II. Cullen, of St. Louis, and R. L. Shackelford, of Clayton, for appellant. Creech & Penn, of Troy, Hy. S. Caulfield, of St. Louis, and A. E. L. Gardner, of Clayton, for respondent.

ALLEN, J.

This is an action for personal Injuries alleged to have been sustained by plaintiff on August 29, 1912, while a passenger on one of defendant's railway trains. This is the second appearance of the case in this court. The suit was instituted in the circuit court of Lincoln county, where a trial resulted in a verdict and judgment for plaintiff in the sum of $7,500. Upon defendant's appeal to this court, the judgment was reversed, for errors occurring at the trial, and the cause remanded. See Jackman v. Railway Co., 187 S. W. 780. Thereafter a change of venue was taken to St. Louis county, where another trial, before the court and a jury, resulted in a verdict for plaintiff in the sum of $15,000, the full amount for which plaintiff prayed judgment in her petition. Thereafter the trial court, in passing upon defendant's motion for new trial, compelled plaintiff, as a condition to the overruling of such motion, to remit the sum of $7,000 from the verdict. Not only was this remittitur made, but plaintiff voluntarily remitted the further sum of $500 from the verdict, and judgment was accordingly entered for $7,500. From this judgment defendant prosecutes the appeal before us.

The nature of the pleadings will appear from a summary thereof stated in the opinion on former appeal, supra. It is unnecessary to review the evidence, since it is not disput ed that the case made was one for the jury. The injuries alleged were to plaintiff's right leg, particularly in and about the knee, and the testimony for plaintiff touching the matter tends to show that she had suffered much pain, and a serious, if not permanent, impairment or affliction, and to trace the same to injuries claimed by her to have been received while a passenger upon defendant's train. Defendant contends, however, that plaintiff was not injured as she alleges; that she is a malingerer; and that the suffering and affliction, if any, of which she complains, was not the result of the "accident" referred to in the evidence, but due to a chronic ailment or malady; and such is the tenor of defendant's evidence, and, as on the first trial, much testimony of medical experts was adduced by each party.

Appellant makes four assignments of error. The first assignment charges that the trial court erred in permitting medical experts, testifying as plaintiff's witnesses, to invade the province of the jury by giving their conclusions as to the cause of plaintiff's physical condition. One ground for the reversal of the judgment on former appeal was error in the admission of expert testimony. The testimony now complained of is not precisely of the same character as that which we held to be objectionable and prejudicial on the former appeal. It is unnecessary to reproduce it here, or discuss the questions raised in this connection, since we have reached the conclusion that the judgment must be reversed on another ground.

The second assignment of error is predicated upon certain remarks made by one of plaintiff's counsel in argument to the jury. In order to show exactly what occurred below in this connection, we reproduce the following from the record before us, viz.:

Mr. Creech (plaintiff's counsel, addressing the jury): "They (meaning defendant) know me, and know what they tried to do in this case. Buy me, like their agent—buy me like their agent, Dameron. $150; $200. Get your little fee out of it. Now, that is Dameron's testimony."

Mr. Cullen (defendant's counsel): "I object, your honor. I desire to object to the statement of counsel that Dr. Dameron, or anybody else, has been paid $200, and I ask that counsel be reprimanded."

Mr. Creech: "I did not make such a statement. I said that Dameron testified that he came to my law office, after I was employed in this case, and advised me that I should settle this plaintiff's case. I know my own business." Mr. Cullen: "I object to the remarks of counsel as improper and outside of the record."

The Court: "What were the remarks of counsel? I did not hear them."

Mr. Creech: "I will withdraw any remark, if there is any objection."

The Court: "I will sustain the objection and ask the jury not to consider the remarks."

Mr. Cullen: "I insist that counsel be rebuked."

The Court: "I did not get exactly the remarks."

Mr. Cullen: "The remark was that Dr. Dameron was slipped $200."

Mr. Creech: "I said, if you follow the action that this company has been doing with the other witnesses in getting false affidavits—"

Mr. Cullen: "Your honor, we renew our objection."

The Court: "Counsel better stick to the argument."

Mr. Cullen: "I ask that counsel be reprimanded for making improper and unwarranted statements."

Mr. Hostetter (of counsel for defendant): "We ask that counsel be rebuked."

The Court: "I ask that counsel Stick to the evidence in this case."

Mr. Cullen: "We desire the record to show our exception to the failure of the court to properly reprimand counsel."

The Court: "I have asked counsel to stick to the evidence."

Mr. Cullen: "I ask your honor to instruct the jury not to consider the improper remarks of counsel."

The Court: "The jury are instructed to consider only the evidence in the case."

The only testimony given by Dr. Dameron, which is at all pertinent to the matter in hand, is the following, on cross-examination, viz.:

"Q. (by plaintiff's counsel). You came to my office, Doctor, and solicited with me to make a settlement with the railroad company in this case, and for them to pay a small sum of money, any small sum that they would pay, didn't you? Didn't you come to my office, into my office, and wanted to make a settlement with this company on any small sum they would pay for this claim of Mrs. Jackman? A. In passing your door, you called me in.

"Q. Just answer the question. Didn't you advise me in this case to take whatever sum of money I could get out of the railroad company in this case, any small sum, or any sum, didn't you? A. I believe I did.

"The Court: The doctor can explain his answer, if he wants to.

"A. Just on the ground that I could not think —I could not find anything the matter with Mrs. Jackman's knee, and did not think there was much the matter with it, and advised you to compromise it."

There is nothing whatsoever in this testimony to suggest that Dr. Dameron had been "bought" by defendant; and there is not a scintilla of evidence in the case that defendant ever tried to bribe or "buy" plaintiff's counsel. Beyond doubt, the ugly and serious charges thus made in argument to the jury find no support whatsoever in the evidence adduced.

It is always improper for counsel to undertake in argument, to influence the action of the jury by asserting, as facts, matters which do not appear in evidence, as our courts have repeatedly held. Statements of this character are particularly objectionable when the obvious purpose thereof is to arouse passion or prejudice in the minds of the jury, or to create a feeling of resentment against or aversion to the opposing party. Much latitude may properly be allowed counsel in stating, in argument, their conclusions or deductions from the evidence; and frequently improprieties in argument, occurring perhaps inadvertently, in the heat of the trial, are not, in any event, of such character as to constitute ground for reversal; and much may be left to the sound discretion of the trial...