Mahmet v. American Radiator Co.

• Citation: 294 S.W. 1014
• Decision Date: 11 April 1927
• Docket Number: No. 25516.,25516.
• Parties: MAHMET v. AMERICAN RADIATOR CO.
• Court: United States State Supreme Court of Missouri

294 S.W. 1014

MAHMET v. AMERICAN RADIATOR CO.

No. 25516.

Supreme Court of Missouri, Division No. 1.

April 11, 1927.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by William Mahmet against the American Radiator Company. From a judgment for plaintiff, defendant appeals, and plaintiff moves to dismiss the appeal. Motion denied, and judgment affirmed, on condition of remittitur.

Marley & Reed, of Kansas City, for appellant.

S. L. Trusty and Gamble, Trusty & Pugh, all of Kansas City, for respondent.

ATWOOD, J.

This case is here upon appeal from a judgment for $10,000 entered against appellant as damages for injuries to respondent's right hand, alleged to have been caused by the negligence of appellant. Verdict was returned by nine jurors for $15,000. On hearing defendant's motion for a new trial, the court indicated that it would be sustained unless plaintiff entered a remittitur of $5,000, whereupon plaintiff did remit this sum and judgment was entered for $10,000.

With its statement and brief respondent filed a motion to dismiss for alleged violations of section 1511, R. S. 1919, and of certain rules promulgated by this court, which motion was taken with the case.

It is urged that the statement of facts tendered by appellant violates that part of said statute and our rule numbered 15 requiring that appellant shall present a clear, fair, and concise statement of the facts of the case without reiteration, statements of law, or argument. Appellant's printed statement is open to some criticism in that appended to and nominally a part thereof are rather voluminous excerpts from the testimony, but such matter is preceded by a reasonably clear, fair, and concise statement of the facts of the case, and we are not inclined to dismiss the appeal in this instance because of the surplusage.

Respondent also insists that appellant's assignments of error and points and authorities are insufficient under said statute and under the rules and decisions of this court. Appellant's assignments of error are set out in its printed brief as follows:

"I. The court committed error in admitting, over the objections of the defendant, incompetent evidence offered by the plaintiff.

"II. The court erred in excluding competent evidence offered by the defendant.

"III. The court erred in giving, over the objections of the defendant, instructions asked by the plaintiff.

"IV. The court erred in refusing instructions asked by defendant.

"V. The verdict is against the weight of the evidence.

"VI. The verdict is the result of passion and prejudice on the part of the jury.

"VII. The amount of damages awarded in the verdict is excessive.

"VIII. The jury disregarded the instructions of the court.

"IX. The court committed error in admitting, over the objections of the defendant, improper evidence offered by plaintiff.

"X. The court erred in permitting counsel for the plaintiff, in his closing argument, to make improper arguments and statements to the jury over the objections of the defendant.

"XI. The court erred in allowing the defendant only 20 minutes in which to present its case to the jury."

Some of these assignments of error are open to the suggestions urged against them, while others are not. We will therefore not dismiss the appeal, but will take up the assignments seriatim, giving them full consideration on their merits or dismissing them as inadequately presented, as we may be required to do under our previous decisions and rules.

The first, second, and ninth assignments above stated all relate to the admission or rejection of evidence, but, standing alone, they are too general to be considered on appeal. Doody v. California Woolen Mills Co. (Mo. Sup.) 274 S. W. 692, loc. cit. 699. Nor do appellant's "points and authorities" tend to make any of these assignments more specific, unless it be appellant's nineteenth point, that "the refusal to withdraw from the jury the consideration, in arriving at a verdict, of the evidence of the breaking of the hooks about three months before the trial of this case, and long after the accident, was clearly error." This testimony was elicited on the cross-examination of appellant's own witness, who had previously testified, on direct examination without objection and in aid of defendant's case, that these hooks would break before they would bend and he had "seen lots of hooks break." The court's ruling here urged as error certainly did not prejudice defendant in any way, and the assignments looking thereto, even if sufficiently stated, should be and are disallowed.

Appellant's third, fourth, fifth, eighth, and tenth assignments are likewise too general and are not rendered more specific in the "points and authorities" listed. Appellant's eleventh assignment also is not supported by any presentation of facts or reasons why the court's allowance of time to defendant for presenting its case to the jury was error, and it is dismissed as insufficient.

Assignment No. 6 is supplemented by point No. 13, that "the manner of exhibiting...