Lindsey v. P. J. Hamill Transfer Co.

• Decision Date: 14 June 1966
• Docket Number: No. 32248,32248
• Citation: 404 S.W.2d 397
• Parties: Leonard A. LINDSEY, Plaintiff-Respondent, v. P. J. HAMILL TRANSFER COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 397

404 S.W.2d 397

Leonard A. LINDSEY, Plaintiff-Respondent, v. P. J. HAMILL TRANSFER COMPANY, Defendant-Appellant.

No. 32248.

St. Louis Court of Appeals, Missouri.

June 14, 1966.

Leritz & Leritz, J. D. Leritz, Joseph L. Leritz, St. Louis, for appellant.

Mogab & Hughes, Charles A. Mogab, Richard L. Hughes, St. Louis, for respondent.

CLEMENS, Commissioner.

The defendant has appealed from an $8,000 judgment awarded plaintiff for injuries sustained when defendant's truck backed into a bus in which plaintiff was a passenger. The bus was halted for heavy traffic near an intersection; the defendant's truck had been standing in a service station but then was driven backward into the street, striking the bus and puncturing its side near plaintiff's seat.

With commendable candor the defendant concedes negligence and causation. It contends, however, that trial errors led to an excessive verdict. Defendant has kept alive four points for review: that a prospective juror intentionally concealed prior injuries; that plaintiff's closing argument was a personal attack on defendant's counsel; that plaintiff's treating doctor was erroneously allowed to state the percentage of plaintiff's disability; and that the verdict was excessive. (These points were skillfully presented. The tightly written briefs of both counsel demonstrated their proficiency in appellate practice and were most helpful to the court.) These four points in order.

Defendant contends the trial court erred in denying a new trial on the ground that a prospective juror intentionally concealed information of two previous injuries. On voir dire, defendant's counsel asked a general question of the jury panel concerning previous injuries sustained by them and members of their families. One venireman told of a broken wrist. Several volunteered information about injuries to members of their families. Venireman Parker then volunteered detailed information about settling a claim for injuries suffered by his son when hit by an automobile. However, at a post-trial hearing, Parker acknowledged that he, too, had been injured. He had made a claim for workmen's compensation and had settled another claim for injuries in an automobile accident.

The ultimate issue here is whether the trial court erred in not finding as a fact that Mr. Parker's previous injuries had been intentionally concealed. Triplett v. St. Louis Public Service Co., Mo.App., 343 S.W.2d 670(8, 9). In determining this issue of fact, the veteran trial judge had before him the defendant's voir dire question, Mr. Parker's answer thereto and his subsequent explanation. The question:

'Q. Have any of you jury members, or have any of the members of your family had any injuries--I mean your immediately family, had any injuries that required any medical care or treatment?'

The clause 'I mean your immediate family' could be misunderstood to mean that counsel was changing his question to limit it to injuries to the veniremen's families. Four veniremen told of injuries suffered by their wives and daughters. Then Mr. Parker volunteered the information about his son's injuries. His testimony at the post-trial hearing showed either that he understood the voir dire question called for information only about his family's injuries or, at worst, that he was confused by the question. We cannot say categorically that the trial court erred in not finding that Mr. Parker's own injuries were intentionally concealed. So, we may not reverse on this ground. Mantz v. Southwest Freight Lines, Mo., 377 S.W.2d 414(2--4).

Defendant next contends that the trial court erred in overruling its objections to a part of plaintiff's closing argument. We quote:

'MR. MOGAB: * * * You are going to decide this case on the law and on the evidence that was placed before you and not what I say or what Mr. Leritz says. It is not evidence in this case. We are lawyers, all we do is tell you what we think are--what our impressions are, but if Mr. Leritz, whose job it is in this case to throw up a smoke screen (our emphasis)--

'MR. LERITZ: Your Honor, I am going to object. I don't think that a proper argument.

'THE COURT: Well, overruled. The Jury will be guided solely by the evidence and the Instructions of the Court.'

Defendant brands the emphasized part of the argument as an unjustified personal attack on counsel. We agree. Such comments clash with the orderly tone of a properly tried law suit. As said in Tuck v. Springfield Traction Co., 140 Mo.App. 335, 124 S.W. 1079(5), quoted with approval in Critcher v. Rudy Fick, Inc., Mo., 315 S.W.2d 421(3): 'One of the first duties of the judge of a trial court is to preserve order and require that the attorneys as well as other persons should, by their behavior, show a decent respect for the court and for the opposing counsel.' In the Tuck and Critcher cases, supra, and in other cases cited by defendant as authority for reversal, the arguments complained of were more vitriolic and prolonged, and the trial courts' rulings therein aggravated the improper comments.

Defendant argues that the trial court's ruling 'placed its stamp of approval' on the improper comment. The defendant overstates its case. Although the objection should have been sustained, the court did temper its ruling by admonishing the jury to be 'guided solely by the evidence and the instructions of the court.' We have considered the defendant's cited case of Bishop v. Hunt, 24 Mo.App. 373, l.c. 377--378. We conclude, however, that in our case, as in Kiger v. Terminal Railroad Ass'n. of St. Louis, Mo., 311 S.W.2d 5 (13), the overall effect of the court's ruling was to soften the sting of counsel's argument by stressing the importance of the evidence and the instructions.

We do agree with defendant's basic contention that overruling its objection was erroneous. But the ultimate issue here lies deeper than a mere determination of error. Civil Rule 83.13(b), V.A.M.R., forbids a reveral except for error 'materially affecting the merits of the action.' In deciding the effect of improper argument we must consider the trial court's superior vantage point in determining materiality. We are 'inclined to defer to the trial court's opinion in these matters, unless upon a full examination of the record it appears that the improper argument was so prejudicial, inflammatory and outside the record as to affect the result on the merits.' Collins v. Cowger, Mo., 283 S.W.2d 554(9); Kiger v. Terminal Railroad Ass'n, supra, 311 S.W.2d l.c. 12.

Considering that the offensive argument was an isolated incident in an otherwise orderly trial, considering the court's admonition to the jury to be guided by the law and the evidence, and considering that there was no contention as to liability, we are unable to say that reasonable judicial minds cannot differ on the proposition that the error in overruling defendant's objection did not materially affect the merits of the action. Therefore, we may not reverse on this ground.

The defendant's third point concerns the stated opinion of plaintiff's physician that the degree of plaintiff's permanent disability of his shoulder was thirty-five per cent. Our decisions have reasoned that since it is proper for an expert medical witness to express an opinion that a person is totally disabled, it logically follows that it is proper to express an opinion that a person is partially disabled, and to describe the degree of that partial diability percentagewise. Erbes v. Union Electric Co., Mo., 353 S.W.2d 659(5); Knipp v. Mankin, Mo., 336 S.W.2d 371(5).

Defendant's precise point, however, is that the trial court erred in admitting evidence of the percentage of disability over his objection that the opinion would be speculative. Defendant now tardily advances reasons to bolster that conclusion, but no such reasons...