Marler v. Pinkston

• Decision Date: 10 September 1956
• Docket Number: No. 2,No. 45053,45053,2
• Citation: 293 S.W.2d 385
• Parties: Lawrence E. MARLER and Golda Marler, His Wife, Appellants, v. Lone PINKSTON, Respondent
• Court: Missouri Supreme Court

Page 385

293 S.W.2d 385

Lawrence E. MARLER and Golda Marler, His Wife, Appellants, v. Lone PINKSTON, Respondent.

No. 45053.

Supreme Court of Missouri, Division No. 2.

Sept. 10, 1956.

Robert A. Cedarburg, Ste. Genevieve, for appellants.

Dearing & Richeson, Will B. Dearing, Hillsboro, for respondent.

STORCKMAN, Judge.

Plaintiffs, who are husband and wife, brought this action for damages for the alleged wrongful death of their minor son, William Dale Marler. The amount sued for was $15,000. Trial of the cause resulted in a verdict for the defendant and, after an unavailing motion for new trial, the plaintiffs appealed.

Shortly after 9:00 o'clock on the night of September 12, 1953, William Dale Marler and Stewart Franklin Rayfield, 19 and 14 years of age respectively, were riding as passengers in a 1946 Ford automobile owned and operated by Billy Ray McGrael, age 18. They were traveling east from Bonne Terre on Highway K in St. Francois County. For two or three miles they followed a dump truck which was being used by a group of youngsters having a 'hay ride.' However, the McGrael car, in which plaintiffs' son was riding, had passed and was about a mile beyond the hay ride party when the accident occurred that resulted in the Marler boy's death.

At this time the defendant, Lone Pinkston, age 67, was driving his 1937 Ford automobile west on the same highway. He and his wife were returning to their home in Bonne Terre from a visit to a married daughter. The road was blacktop 18 feet wide and at the place in question there were a number of curves and hills. There was evidence that McGrael was driving his car 45 to 50 miles per hour and that the defendant had been driving at a speed of 30 to 35 miles per hour, but that he slowed to about 20 miles per hour when he saw the lights of the other car.

As the two cars were passing, the left front fender of defendant's automobile and the left rear fender of the McGrael car made some contact. The impact was comparatively slight and not disabling to either car, but the McGrael car went out of control over a hill and around a curve. It ran along a ditch on the south side of the highway for about 115 feet, then went back onto the blacktop pavement and diagonally across for a distance of about 84 feet and came to rest in a ravine about 80 feet from the north edge of the pavement. The plaintiffs' son received injuries which caused his death on the following day.

After the cars struck, defendant stopped and examined the fender which had been hit. He looked around for the other car and, not seeing it, he assumed it had not stopped and continued on his way home. The next day when he learned what had happened to the other car defendant went to the State Highway Patrol and reported that his car had been involved.

Plaintiffs submitted their case on defendant's alleged failure to keep his automobile as near the right-hand side of the highway as was practicable and in driving across the center line. Defendant denied this and contended the negligence of Billy McGrael was the sole cause of the fatal accident. The jury found for the defendant.

Plaintiffs' complaint on appeal relates solely to two passages in defendant's argument to the jury which are claimed to be prejudicially erroneous. The law is well settled that the trial court should be allowed a large discretion in permitting and restraining argument to the jury, and its rulings will generally be deferred to on appeal because of its better position to know the meaning, construction and effect of such argument. Collins v. Cowger, Mo., 283 S.W.2d 554, 561; Burow v. Red Line Service, Inc., 343 Mo. 605, 122 S.W.2d 919, 921. The trial court hears the argument of counsel and has the opportunity to observe the way in which it is delivered and the manner in which it is received by the jurors. The trial court considers and rules upon the argument when it is made and on motion for new trial has the opportunity to correct any error in its ruling. It has broad power with respect to granting a new trial.

The basis of the first complaint of error is as follows:

'Mr. Swink: * * * Mr. and Mrs. Pinkston have had that car, driven that car a number of years, and they have taken very good care of it through these years. Here are several views of what is left of that hotrod, dechromed, leaded, tiptop shape, good mechanics, new tires, good brakes. Now, comparing those two cars for a moment, leaving that in the background of your mind, compare the drivers; young McGrael, nice-appearing young fellow, nice-appearing young fellow, but out skylarking around, nowhere in particular to go, but he is in his hot rod on the----

'Mr. McIlrath: I want to object to this, because there is no testimony to that. I think it is highly prejudicial. Ask that the jury be told to disregard it.

'The Court: Sustained as to the hot rod.'

The plaintiffs' allegation of error is: 'The Court's failure and refusal to instruct the jury to disregard the statement made by counsel for Defendant in his argument when referring to the automobile in which decedent was riding, as a 'hot-rod,' under the circumstances was prejudicially erroneous and requires a new trial.'

The American Thesaurus of Slang, Berrey & Van den Bark, defines a 'hot rod' as 'a car whose action has been intensified by special equipment and the removal of excess body parts.' A 'lead job' is 'a car, not necessarily a hot rod, with the ornamentation removed and surface body openings leaded in.' Pyles' Words and Ways of American English, p. 179, lists 'hot rod' as one of the new words added to our vocabulary since 1945.

The evidence shows that lines had been painted on McGrael's car and...