Jones v. Kansas City, Mo., 32201.

• Decision Date: 16 November 1934
• Docket Number: No. 32201.,32201.
• Citation: 76 S.W.2d 340
• Parties: JONES v. KANSAS CITY, MO.
• Court: Missouri Supreme Court

76 S.W.2d 340

JONES v. KANSAS CITY, MO.

No. 32201.

Supreme Court of Missouri, Division No. 1.

November 16, 1934.

Appeal from Circuit Court, Jackson County; Darius A. Brown, Judge.

Action by Rose Jones against Kansas City, Mo. After verdict for defendant, a motion for new trial was sustained, and defendant appeals.

Affirmed and cause remanded.

George Kingsley, City Counselor, and James R. Sullivan and Arthur R. Wolfe, Asst. City Counselors, all of Kansas City, for appellant.

Walter A. Raymond and Harry G. Kyle, both of Kansas City, for respondent.

HAYS, Judge.

This is an action for personal injuries alleged to have been sustained by the respondent in falling upon a sidewalk on a public street in the central business district of Kansas City. The fall was alleged to have been caused by the negligence of the appellant city in allowing snow and ice, upon which respondent fell to her injury, to accumulate, and to remain for an unreasonable time, upon the sidewalk in the form of rough and uneven ridges — a condition due to the alternate freezing and thawing of the ice and snow and the passage of pedestrians over and upon the same.

The case is a close one on the facts. On a trial by jury the city gained a verdict. Respondent filed motion for a new trial and the same was sustained, as the record states, "on account of prejudicial argument in closing argument made by the attorney of record for the defendant."

The following sketch of the argument, together with an episode that formed its background, is taken from respondent's brief and substantially reflects the record:

In the voir dire examination of the jurors, the city's counsel asked one of them, Mr. Peterson, if he was a property owner. Plaintiff's counsel then asked the juror if the fact he was a property owner would influence him. Mr. Peterson asked if a judgment would increase his taxes. After some colloquy between this juror and plaintiff's counsel, the juror finally said he would not let that fact influence him. Thereupon he was chosen and sat on the trial panel.

In his closing argument, Mr. Sullivan, the assistant city counselor, who tried this case on behalf of the city, made an impassioned appeal in which he said: "If a person walking along the sidewalk in the nighttime stumbles against an obstruction or falls into a hole, I think the city should pay, but these snow and ice cases are different. You must be careful about setting a precedent in these cases." Counsel for plaintiff thereupon objected to this argument as being unfair and highly prejudicial. The court said, "Proceed." Whereupon Mr. Sullivan declaimed in a very passionate and dramatic manner, "In 5 or 6 weeks from now we will have more snow and ice. Fifty or sixty people a day will fall on the sidewalks. If you set a precedent by allowing a recovery in this type of case, God help the city."

The appellant's points are few and will be taken up in convenient order.

It is urged that the argument complained of was provoked and was a fair retort to statements and argument made by respondent's counsel in admonishing the jury, in substance, to return a verdict for the plaintiff as a lesson to the city for the prevention of similar accidents in the future and for the saving of taxes by such prevention; and that there was no alternative left to counsel for the city save to answer such argument as he did, in the language set out above. As against this contention, respondent insists that the contrary is the fact, that her counsel's argument was made defensively and in the closing argument of the whole case. Examination of the printed record discloses clearly that respondent's version of this matter is correct. Immediately following the remarks made by respondent's counsel in his closing argument, the following appears:

"Mr. Sullivan: Now if Your Honor please, I object to that statement as being highly prejudicial and I ask Your Honor to instruct the jury to disregard it.

"Mr. Kyle: Your Honor, he went and talked about the —

"Mr. Sullivan: I made my objection to the court.

"The Court: That is an improper statement, gentlemen; you will not consider it in arriving at your verdict."

Whereupon the counsel for respondent closed his argument with a brief appeal for adequate damages, and shortly thereafter the case was submitted to the jury. So that, although the rule is, as contended, that improper remarks made by counsel in argument in answer to improper argument made by his adversary cannot be made the basis of error on the part of the party who is first guilty, it is evident that this rule has no application to the instant case.

It is conceded that the record furnished no basis for the argument complained of and that the counsel was attempting to impress the jury with the importance of their decision. It follows that the conduct of the counsel in so designedly pressing upon the attention of the jury matter wholly extraneous to the case for the inferentially admitted purpose of gaining a verdict was highly improper. The rule in such case is laid down in 1 Thompson on Trials (3d Ed.) § 963, thus: "All courts * * * unite upon the conclusion that where counsel, in their argument to the jury, make statements of prejudicial matters which are not in evidence, it will afford ground for a new trial, unless the error is cured before the cause is finally submitted to the jury," by the counsel's apology for his statement or his withdrawal thereof, or by instruction or rebuke given, or other appropriate...