Masters v. Sun Mfg. Co.

• Decision Date: 02 November 1942
• Parties: Pearl Masters, Appellant, v. Sun Manufacturing Company, a Corporation, Respondent
• Court: Kansas Court of Appeals

165 S.W.2d 701

237 Mo.App. 240

Pearl Masters, Appellant, v. Sun Manufacturing Company, a Corporation, Respondent

Court of Appeals of Missouri, Kansas City

November 2, 1942

Appeal from Buchanan Circuit Court; Hon. Sam Wilcox, Judge.

Affirmed.

Shultz & Owen, Harry C. Clark and Ed Lavery for appellant.

(1) Order granting new trial to respondent was erroneous. (a) The language used by plaintiff's counsel in his closing argument is neither inflammatory nor prejudicial. Gidionsen v. Union Depot Ry. Co., 129 Mo. 392, 404; Young v. City of St. Joseph (Mo. App.), 4 S.W.2d 1104. (b) Any possible prejudicial effect of harmful language is cured (1) by the court's sustaining an objection to it; (2) by his reprimanding counsel making it; (3) by counsel's withdrawing his statement; (4) by his substituting another in its place; and (5) because no further objection was made. Hesemann v. May Department Stores Co., 39 S.W.2d 797; Arnold v. Metropolitan Ins. Co. (Mo. App.), 89 S.W.2d 81; Gravemann v. Huncker (Mo App.), 71 S.W.2d 59; German-American Bank v Camery, 189 Mo.App. 542, 176 S.W. 1076; Willison v Smith, 60 Mo.App. 469; Nolan v. Johns, 27 Mo.App. 502, 28 S.W. 492; Sinclair v. Columbia Tel. Co. (Mo. App.), 195 S.W. 558; Griggs v. K. C. Rys. Co., 228 S.W. 509; Warren v. Giudici, 330 Mo. 483, 50 S.W.2d 634; Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903; Pietzuk v. K. C. Rys. Co., 289 Mo. 135, 232 S.W. 987. (c) The trial court passed upon the effect of the language complained of in refusing to discharge the jury, and nothing occurred thereafter to justify a different ruling on the effect of said language. (2) It is the province and duty of the appellate court itself under the circumstances of this case to determine the meaning and effect of the language in deciding whether the trial court abused its discretion in granting a new trial. State ex rel State Highway Comm. v. Ferbert et al, (Mo. App.), 71 S.W.2d 55.

Conkling & Sprague for respondent.

(1) The trial court did not err in sustaining defendant's motion for new trial. Jones v. Kansas City (Mo.), 76 S.W.2d 340, 342; Beer v. Martel, 332 Mo. 53, 60; State ex rel. Kresge v. Shain, 340 Mo. 145, 155; Burow v. Red Line Service, 343 Mo. 605, 610; Crews v. K. C. P. S. Co., 341 Mo. 1090; Reichmuth v. Adler, 348 Mo. 812, 816, 155 S.W.2d 181, 182; Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297; Schierloh v. Brashear Freight Lines, 148 S.W.2d 747, 750; Schipper v. Truck Lines, 132 S.W.2d 993, 1000, 1001; Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486; Buchanan v. Scott County Milling Co., 157 S.W.2d 810, 813; Taylor v. Farmers Bank of Chariton County, 161 S.W.2d 243, 247; Thompson v. St. Joseph Ry., Lt., Ht. & Pr. Co., 345 Mo. 31, 131 S.W.2d 574; Hoepper v. Sou. Hotel Co., 142 Mo. 387; Stafford v. Ryan, 276 S.W. 637; Delaplain v. K. C., 109 Mo.App. 112. (a) The argument made to the jury by plaintiff's counsel, Mr. Clark, was inflammatory, vituperative prejudicial, highly improper and reversible in itself. Monroe v. C. & A. R. Co., 297 Mo. 633, 249 S.W. 644; Smith v. S.W. Ry. Co., 31 S.W.2d 105, 109; Stroud v. Doe Run Lead Co., 272 S.W. 1080; State ex rel. Kresge v. Shain, 340 Mo. 145; Jackman v. St. L. & H. R. Co., 206 S.W. 244. (2) The trial court erred in refusing to give to the jury defendant's requested Instruction A in the nature of a demurrer to all the evidence in the case because the plaintiff failed to meet her burden of proof. Johnson et al. v. Dierks Lumber & Coal Co., 5 W. H. R. 603 (decided July 23, 1942) (not yet officially reported); Jax Beer Co. v. Redfern, 124 F.2d 172; Wilkinson v. Noland Co., 40 F.Supp. 1009; Brown v. Carter Drilling Co., 38 F.Supp. 489, 492; Lowrimore v. Union Bag & Paper Corp., 30 F.Supp. 647; Baker v. Chapman Dairy Co., 5 W. H. R. 56 (decided January 8, 1942) (not yet officially reported); Belt v. Hodges, 4 W. H. R. 423 (decided, 1941) (not yet officially reported); Roberts v. Hoarel, 4 W. H. R. 523 (not yet officially reported); Miller v. Betty Lynn Frocks, 5 W. H. R. 474 (decided 4-18-42) (not yet officially reported); McDonald v. Robertson, 104 F.2d 945; Willis v. Terminal Ry. Co. (Mo. App.), 199 S.W. 736, 740. (a) On appeal defendant may question the probative effect of any evidence introduced. State v. Grinstead, 314 Mo. 55, 77; Willis v. Terminal Ry., 199 S.W. 736, 740; Nodaway Co. v. Williams, 199 S.W. 224; McMillan v. Milling Co., 190 Mo.App. 340. (3) If the court were to accept plaintiff's testimony in lieu of substantial evidence as to the number of hours she worked (which we contend the court should not do) even then, plaintiff was not entitled to a verdict of $ 22.61.

OPINION

Cave, J.

This suit was commenced by plaintiff seeking to recover from the defendant the sum of $ 85.20 unpaid wages claimed to be due under the Fair Labor Standards Act of 1938, 29 U.S.C. A., secs. 201-219, also $ 85.20 as liquidated damages, as provided in such Act, and for $ 500 attorneys' fees. The cause was tried to a jury which returned a verdict awarding plaintiff $ 22.61, to which the court added a like amount as liquidated damages, and upon a separate hearing, the court awarded $ 80 as attorneys' fees, and entered judgment against defendant in the total sum of $ 125.22. Defendant filed its motion for new trial alleging five grounds of error, and the court sustained the motion and granted a new trial "on the ground of prejudicial and inflammatory argument made to the jury by the attorney for the plaintiff during his closing argument as set out in 'V' of the defendant's motion;" to which action the plaintiff excepted. The court also overruled defendant's motion as to grounds numbers 1, 2, 3 and 4.

Plaintiff (appellant) contends that the court erred in sustaining the motion on the ground assigned, and presents various reasons therefor, which will be later noted. The defendant (respondent) argues that the court did not commit error in sustaining its motion on the ground assigned and in addition presents and argues that the motion should have been sustained because the court should have given defendant's requested Instruction "A" in the nature of a demurrer to all the evidence, because the plaintiff failed to meet her burden of proof; and even if the court were to accept plaintiff's testimony in lieu of substantial evidence as to the number of hours she worked, nevertheless plaintiff was not entitled to a verdict of $ 22.61.

A brief statement of the issues will be made before discussing the question of whether the court erred in sustaining the motion on the ground assigned.

Plaintiff's petition alleged that plaintiff was engaged from October 24, 1938 (the effective date of the above Labor Act), until August 22, 1939, in manufacturing for defendant shirts to be moved in interstate commerce; that plaintiff, during said period, was employed by defendant for work-weeks longer than forty-four hours; that defendant failed to pay plaintiff 25c an hour (as required by said Act) for the first forty-four hours plaintiff worked in each work-week and failed to pay plaintiff 37 1/2c an hour (time and one-half) for each hour in excess of forty-four hours which plaintiff worked during each such work-week; that plaintiff worked forty-seven hours each week; that plaintiff started work each work day morning at 7:15 A. M. and started work each work day afternoon at 12:20 P. M.; that plaintiff worked nine hours and twenty-five minutes each work day. Defendant's answer admitted the interstate character of its manufacturing business; specifically denied that plaintiff ever worked more than forty-four hours in any one work-week; specifically denied that defendant was indebted to plaintiff in any sum whatever under said Act; alleged full payment in that defendant had paid plaintiff all wages due to plaintiff from defendant under the Wage and Hour Act, or otherwise; and alleged that for all the hours between October 24, 1938, and August 23, 1939, that plaintiff worked for defendant, the plaintiff had been paid by defendant at a rate in excess of the minimum prescribed by the Wage and Hour Law.

The principal point of dispute in the evidence was whether the plaintiff had been compelled to work more than forty-four hours per work-week. Plaintiff's attorney in his closing argument to the jury made the statement, presently quoted, which gives rise to the first matter for consideration, the ground assigned by the court for sustaining the motion.

During his argument, the following occurred:

"Mr Clark: (plaintiff's attorney . . . If they had a lack of business, why did the girls have to go in the morning at seven o'clock? Why did they have to work at noon? Gentlemen, there was no lack of business in this sweat shop.

"Mr. Conkling: We shall now ask the court to reprimand counsel for making what we think is, and what must be construed as, an improper and inflammatory statement, not based upon the evidence, and made solely by Mr. Clark for the purpose of attempting to prejudice the jury, and appeal to the passions of men instead of their reasons. We are objecting to the statement.

"Mr. Clark: You will get your chance to make a speech.

"Mr. Conkling: I was not talking to you. I was addressing my objections to the court.

"The Court: The court considers that the statement just made by you is highly improper, Mr. Clark. There is no such issue in this case, no such evidence in the case and I want to caution you against making such remarks again because it is not only out of the record but the court deems it highly improper and prejudicial.

"Mr. Conkling: We ask the court to discharge the jury from further consideration of the case.

"The Court: Request to discharge the jury will be denied.

"To which action and ruling of the court, defendant then and there duly...