Junge v. Pehl

• Decision Date: 01 May 1922
• Docket Number: No. 14361.,14361.
• Parties: JUNGE v. PEHL et al.
• Court: Missouri Court of Appeals

240 S.W. 278

JUNGE v. PEHL et al.

No. 14361.

Kansas City Court of Appeals. Missouri.

May 1, 1922.

Appeal from Circuit Court, Pettis County; H. B. Shaba, Judge.

"Not to be officially published."

Action by Sophia Junge against Otto Pehl and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Mark A. McGruder, of Sedalia, for appellants.

James T. Montgomery, of Sedalia, for respondent.

BLAND, J.

This is an action for damages brought by the wife under section 6 of the act approved March 27, 1919, relating to prohibition (Laws of 1919, p. 411) providing as follows:

"Every wife, husband, child, parent, guardian, or other person in the state of Missouri, who shall be injured in person or property or means of support or otherwise by any intoxicated person by reason of the selling of intoxicating liquors in violation of the provisions of this act, shall have the right of action in his or her name against any person, firm or corporation who shall, by such illegal selling of such liquors, have caused or contributed to the intoxication of said person or persons, or who have caused or contributed to any such injury; and in any action given by this section the plaintiff shall have the right to recover actual and exemplary damages."

There was a verdict and judgment in favor of plaintiff in the sum of $250 compensatory and $250 punitive damages, and defendants have appealed.

The facts show that plaintiff and her husband prior to their going to Sedalia in 1907 lived in Concordia, Mo.; that at the latter place and also in Sedalia plaintiff's husband drank to excess; that in 1919 they moved to Oklahoma, and stayed there for about a year; that plaintiff's husband did not drink while living in Oklahoma, and accumulated about $900 in cash, working at his trade as a carpenter; that they returned to Sedalia about the 12th day of November, 1920, and her husband immediately began to drink to excess.

The evidence further shows that defendants prior to `national prohibition had been in the saloon business in Sedalia, and were running a "soft drink" establishment at the time plaintiff and her husband returned from Oklahoma. Plaintiff's husband testified that when they returned to Sedalia he had a conversation with one of the defendants about buying intoxicating liquor at defendants' place of business. The evidence shows that thereafter, and extending over a period from November, 1920, to May 17, 1921, he bought a large quantity of intoxicating liquors from defendants at their place of business; that for this purpose he spent $600 or $700 during that time. When plaintiff's husband started to buy the liquor plaintiff warned the defendants not to sell any to him. While there is no direct evidence that plaintiff's husband drank all of the liquor purchased, this fact seems to have been assumed, and the inference is to that effect.

Defendants insist that the verdict is against the weight of the evidence but admit that this court does not ordinarily pass upon such a point. However, defendants insist that there was no substantial evidence to support the verdict. The abstract of the record does not disclose that defendants offered an instruction in the nature of a demurrer to the evidence at the close of all the evidence. For this reason they are not in a position to urge that there is no substantial evidence to support the verdict. But, going into the merits of the controversy, we find that there is nothing involved in the point other than the mere weight of the evidence.

While plaintiff's case is founded largely upon the testimony of plaintiff, and her husband and the testimony of her husband is contradicted by a number of witnesses introduced on the part of the defendants, this would not authorize us to interfere with the action of the trial court In overruling the motion for a new trial. There was also strong evidence to show that defendants procured one Keuper, a relative of plaintiff, to call upon her to make a settlement.

During the trial of the case, and the examination of plaintiff's husband by her attorney, the following occurred:

"Q. What kind of stuff was it? A. The first I bought from them was bottled in bond.

"Q. What size? A. Pint and half pints.

"Q. What did you give for it? A. Six dollars for a half pint and $12 for a pint.

"Q. That was bottled in bond? Whew!

"By Mr. McGruder: Now, if the court please, I certainly object to that.

"By the Court: The objection is sustained.

"By Mr. Montgomery: I am going to apologize to the court, the jury, and the witness for making that, but I just couldn't help it.

"By the Court: Well, I don't know but what your apology is worse than you did, by saying you couldn't help it. I think you could."

During the argument of plaintiff's counsel to the jury he said:

"There is no wonder that Fred Kueck can ride in an automobile and also Otto Pehl and—

"By. Mr. McGruder: I object to that; there isn't anything in evidence to that effect.

"By the Court: There isn't a bit of evidence of that kind.

"By Mr. Montgomery: Then we can take judicial cognizance they could ride in an automobile, if they wanted to or in a flying machine, because they have old Henry Junge's money to pay for it; that is why they can do it, if they want to."

Also said:

"And the others that testified are barkeepers except McMullens.

"By Mr. McGruder: That is not the evidence, if the court please.

"By Mr. Montgomery: All right; there is Menefee, a bartender; there is that negro porter in the saloon, and that other fellow that always hung around.

"By the Court: The jury will remember that part of it.

"By Mr. Montgomery: And Clopton and all the rest of them.

"By Mr. McGruder: Tilden McMullens wasn't a bartender.

"By Mr. Montgomery: I didn't say him. See, he is objecting, I am getting under his hide there was Clopton and Menefee and the old negro porter that swept up the vermin and stuff spewed up by these drunken men.

"By Mr. McGruder: We object to that statement."

And says:

"He goes down in the basement, and, as I say, when a man wants to do a scurvy, dishonest act, that is the way—

"By Mr. McGruder: We object, that is not the testimony.

"By the Court: The man swore he bought it over the bar from Mr. Pehl. You oughtn't to do that, Mr. Montgomery. Now proceed."

And says:

"He called up Fred Kueck at Mrs. Junge's request

"By Mr. McGruder: I want to object for the reason you are misquoting the evidence, and I would like to ask the stenographer to read it to show that you are.

"By the Court: The gentlemen will remember it.

"By Mr. Montgomery: That is what he testified to: He was in the garden, and Mrs. Junge passed by, and he stopped her and told her she ought to hush this matter up and not disgrace them—that is the evidence, and you can't disprove it.

"By Mr. McGruder: I would like to say when he makes the statement that Mr. Keuper called at his own instance and not at Mrs. Junge's, he has misquoted her testimony, and I ask that the stenographer read it.

"By the Court: I have no right to do that.

"By Mr. Montgomery: It is getting under his hide again.

"By the Court: Do you want Ills testimony read?

"By Mr. McGruder: I am asking it be read.

"By Mr. Montgomery: It is against the law to read the testimony. And I have a right to say that, if he objects to my saying I am getting under his hide, I will change it, and say I am getting under his skin.

"By Mr. McGruder: I desire to make another objection. I say to the court and the jury that I object to your statement, when you say Mr. Keuper's testimony shows that he sent for Fred Kueck at his own volition and not at her request; that you have misquoted the testimony and ask the stenographer to read it.

"By Mr. Montgomery: It is against the law for the stenographer to read it, and I haven't time to fool with it.

"By the Court: Well, if he won't agree, he can't read it. Your time is up; you have two minutes more; proceed.

"By Mr. McGruder: I want to save my exceptions to the above.

"By the Court: Let the record show Mr. McGruder saves his exceptions."

We think that the conduct of plaintiff's counsel was such as to make a reversal of the cause necessary. There was no evidence that defendants rode in an automobile and the reference to such matter made by plaintiff's counsel in his argument to the jury was plainly for the purpose of prejudicing the jury against the defendants and in favor of plaintiff, who was a woman of small means. When the court sustained the objection, instead of plaintiff's counsel acquiescing therein, he repeated the same matter, and in a much more prejudicial way. The conduct of counsel repeating improper argument after the court has sustained an objection to it has been condemned. Barr v. Railroad, 138 Mo. App. 471, 120 S. W. 111. Alter counsel has been duly warned by the action of the court in sustaining the objection, it is reprehensible in counsel to continue the same line of argument, and, when he does so, he is merely flying in the face of the court, with full knowledge of the impropriety. Under such circumstances, when the appellate court finds that the argument is of such a prejudicial nature that requires a...