Massengale v. Rice
| Decision Date | 05 May 1902 |
| Citation | 68 S.W. 233,94 Mo.App. 430 |
| Parties | JOHN MASSENGALE, Appellant, v. E. E. RICE, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Chariton Circuit Court.--Hon. Jno. P. Butler, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
R. G Mitchell and D. R. Hughes for appellant.
(1) The court admitted illegal and incompetent testimony for defendant. (2) The court, after the ruling that it was an improper practice to examine the steer in question, permitted the defendant, without rebuke, to say to the jury "that the steer in question was in Salisbury, and for them to go and look at him." (3) The court refused to compel the defendant on the stand to answer the following legal and competent question: "Didn't Mr. Smith and Mr Babbitt, or one or both, tell you in October, 1899, that this steer in question was the steer of John Massengale when you were questioned as to whose it was?" The court said, in presence of the jury, the question is incompetent. (4) A verdict obtained by comment on excluded testimony and by stating as evidence that which was not evidence, and by argument which has no evidence to support it, ought not to be permitted to stand. Thompson on Trials, sec. 958 and 969; Marble v. Walters, 19 Mo.App. 135; McDonald v Cash, 45 Mo.App. 66; Smith v. Tel. Co., 55 Mo.App. 626; Ritter v. Bank, 87 Mo. 574; Haynes v. Town of Trenton, 108 Mo. 123; Gibson v. Zeibig, 24 Mo.App. 65; Bishop v. Hunt, 24 Mo.App. 373; Railroad v. Meyers, 63 F. 793; Hall v. United States, 150 U.S. 76; Tucker v. Hanniker, 41 N.H. 317.
Bert D. Nortoni, F. C. Sasse and J. A. Collet for respondent.
(1) It was entirely proper for the court to compel Chrisman to say whether he had had difficulties with Rice, and it was also proper for him to answer whether Sharp and Rice were friendly or unfriendly. (2) The complaint made by appellant as to misconduct of Rice while on the witness stand in saying to the jury "that the steer in question was in Salisbury, and for them to go and look at him," comes too late after verdict. The affidavit of Hughes shows that the court's attention was taken up with other matters at the time, and it was the duty of counsel to call the court's attention to said alleged misconduct, and failing to do so, they waived their right to complain after the verdict. State v. Weber, 156 Mo. 256; Vette v. Geist, 155 Mo. 27; Hall v. Jennings, 87 Mo.App. 627; State v. Robinson, 117 Mo. 666. (3) In view of the testimony as shown by appellant's abstract, the complaint that the court erred in refusing to compel Rice to answer the question, "Didn't Mr. Smith or Mr. Babbitt, one or both, tell you in October, 1899, that this steer in question was the steer of John Massengale when you were questioned as to whose it was," seems more frivolous than serious. (4) All the cases cited in appellant's brief condemn the practice of counsel stating as facts, as of their own knowledge, matters of which there had been no testimony offered or received in the case. The case at bar is entirely different. Here, counsel was arguing from what had been produced in testimony, and drawing conclusions from appellant's statements made to the jury. After appellant had stated that where he had been engaged in the cattle business, the law gave every man the right to have branded for himself all the unbranded cattle found with his cattle, counsel had the right to draw his own conclusions from that statement, and to state to the jury what those conclusions were, and though the conclusions may have been entirely erroneous, and for the sake of this argument, we may say, entirely unsupported by testimony, yet so long as such conclusions were stated as being based upon the evidence, and not as facts within the knowledge of counsel, independent of the evidence, no error was committed. State v. Zumbunson, 86 Mo. 111; State v. Jones, 78 Mo. 286; State v. Owens, 78 Mo. 367; State v. Dickson, 78 Mo. 451; State v. Emory, 79 Mo. 463; State v. McNally, 87 Mo. 659; State v. Brooks, 92 Mo. 588; State v. Edie, 147 Mo. 535; State v. Floyd, 15 Mo. 349; Fendler v. Dewald, 14 Mo.App. 60; Pearson v. Railroad, 14 Mo.App. 580; Schields v. Waldron, 13 Mo.App. 597; Bank v. Wood, 124 Mo. 72; Madden v. Paroneri Realty Co., 75 Mo.App. 358.
--This is an action of replevin which was begun before a justice of the peace to recover the possession of a steer. The cause was removed into the circuit court where there was a trial to a jury resulting in judgment for defendant, and from which the plaintiff appealed.
It appears from the record before us that at the trial the plaintiff testified in his own behalf, and on cross-examination the following questions were asked and answered:
The plaintiff's counsel objected to this last question which was by the court sustained. The defendant thereupon asked the plaintiff this further question: To this question plaintiff's counsel objected and which objection was by the court sustained.
It further appears that during the argument of the case to the jury Mr. Collet, one of defendant's counsel, remarked that "Massengale, the plaintiff, obtained his start and made his money by rounding up unbranded cattle in the west, and stealing them and branding them as his own." As soon as this remark was made the plaintiff's counsel objected thereto for the reason that no evidence to that effect had been adduced; that thereupon the court directed the defendant's counsel to confine his remarks to the evidence, whereupon he replied, "I am stating facts," and then turned to the jury and further remarked, To these remarks the plaintiff objected as being outside of the record and had not been proved, but the court overruled the objection because it was of the opinion that the remarks of the defendant's counsel were justified by the evidence, to which ruling the plaintiff duly excepted.
I. It is quite difficult to conceive of a more flagrant abuse of the license of speech by counsel than that of defendant's counsel in this case. His remarks were based upon a question which the court had ruled was improper and calling for evidence which was impertinent. There was no evidence whatever of the facts referred to by defendant's counsel, and yet the court, when appealed to by plaintiff's counsel, ruled that there was and permitted the defendant's counsel to proceed with his argument without reprimand or rebuke.
The evidence adduced to maintain both the affirmative and negative of the controverted and decisive issue of fact in the case, was quite evenly balanced, and it may be that the unproved facts referred to in the objected-to remarks of the counsel for defendant, coupled with that of the court in respect thereto when challenged by plaintiff's counsel, may have turned the scale in defendant's favor. The court, in effect, by its ruling, admitted the improper evidence which defendant's counsel had by his question sought to introduce, and permitted him to make it the ground for hurling against plaintiff and his business methods the bitterest and most damaging invectives. The effect of this inadvertence of the court we must think was highly prejudicial to plaintiff.
The remarks made by us in Ensor v. Smith, 57 Mo.App 584, are equally applicable here, to the effect: ...
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Sullivan v. St. L.-S.F. Railway Co.
...to the court's attention in any manner at the time, and therefore the statement cannot be made the basis of error on appeal. Massengale v. Rice, 94 Mo. App. 430; Preston v. Railroad, 292 Mo. 442. (5) The judgment is not excessive. (a) An appellate court will not interfere with the award of ......