McCandless v. Manzella, 49332

• Decision Date: 08 July 1963
• Docket Number: No. 2,No. 49332,49332,2
• Citation: McCandless v. Manzella, 369 S.W.2d 188 (Mo. 1963)
• Parties: Fred McCANDLESS, Appellant, v. Thomas MANZELLA, d/b/a American Cab Company, Respondent
• Court: Missouri Supreme Court

Page 188

369 S.W.2d 188

Fred McCANDLESS, Appellant, v. Thomas MANZELLA, d/b/a American Cab Company, Respondent.

No. 49332.

Supreme Court of Missouri, Division No. 2.

July 8, 1963.

Albert J. Yonke, Kansas City, for appellant.

Jone C. Russell, Donald E. Raymond, Kansas City, for respondent; Russell, Raymond & Brennan, Kansas City, of counsel.

BOHLING, Commissioner.

Fred McCandless had a verdict and judgment for $25,000.00 for personal injuries against Thomas Manzella, doing business as the American Cab Company. Defendant was granted a new trial on eight of the twenty-two grounds assigned in his motion therefor, six alleging prejudicial conduct by plaintiff's counsel and two alleging error in instructions. Plaintiff has appealed.

The trial of this case started October 25, 1961, and involved injuries received about noon January 9, 1956. The evidence favorable to plaintiff was to the following effect: Plaintiff, 58 years old in 1961, was working in 1956 as a bartender from 4:00 p. m. until 1:30 a. m. On the morning of January 9, 1956, he was in the One-Eleven Bar in Kansas City, Missouri, for thirty to forty minutes, had a couple of bottles of beer, and had a cab ordered to take him to the Canton Cafe, were he intended to eat. An 'American Cab' came, with a lady driving. Plaintiff got in the front seat, and was taken to the Canton Cafe. The cab stopped close to the curb. Plaintiff opened the door, which opened to the front, put his right foot on the curb, reached in his pocket, and paid the cab driver sixtyfive cents. The motor was running. The cab had a manual shift. The cab driver started counting the money, using both hands. Plaintiff continued getting out of the cab and, while he was so doing, the cab went forward about two or two and a half feet and the back of the front seat hit him and threw him out onto the sidewalk. He landed with full force on his right hip. He was severely injured, sustaining a fracture of the right femur, which caused great pain and would necessitate time-consuming and expensive medical services.

Defendant's evidence, if believed, sustained the following findings. Plaintiff had been drinking and was unsteady on his feet. He rode in the rear seat of the taxicab. The cab was stopped about six or seven inches from the curb in front of the Canton Cafe. The street is level. Plaintiff backed out of the cab from the right rear door, turned as if he were going toward the restaurant, slipped or tripped and fell onto the cement sidewalk. The motor of the taxicab was turned off when it stopped to let plaintiff out. The taxicab did not move. There was a strong odor of liquor on plaintiff's breath, and he was under the influence of alcohol.

Police officer George M. Vernon testified that about five years ago as he was leaving the Canton Cafe at the lunch hour he noticed a man backing out of the rear door of a taxicab operated by a lady driver. The man turned as if going to the restaurant, lost his balance and fell onto the cement sidewalk. Witness tried but was unable to catch and keep the man from striking the sidewalk. Witness had the opinion the man was under the influence of alcohol. Officers are supposed to make a report when a person is injured. Witness did not make a report, did not know whether the person was injured. He gave the information to the district officer upon that officer's arrival, turned the matter over to him and went ahead with his own business.

Officer Joseph F. Smith testified in rebuttal that he was in charge of the records of the Kansas City Police Department; that he found no report in his records of an accident involving plaintiff and an American Cab on January 9, 1956; that it was customary for officers to make a peport of a casualty they see while on duty but he did not know of any rule that required such a report in every instance.

The rulings of misconduct on the part of plaintiff's counsel involved the following occurrences of record.

Phil Evola, a witness for defendant, owned the One-Eleven Club on January 9, 1956. His testimony as to plaintiff's condition on said morning was damaging to plaintiff. The following occurred on cross-examination by Mr. Yonke:

'Q What business are you in? A I am an employee of the Paramount Music Shop, Manager. Q Is that some sort of a juke box outfit? A No, sir. Q Does Manzella have anything to do with it? A No, sir. Q Who does? A Nick Civella. Q Did Nick Civella have any interest in your business? A No. Q Does Nick Civella have any interest in the American Cab? A No, sir.

'MR. RUSSELL: We object to this type of question.

'THE COURT: Overruled.

'MR. YONKE: I wonder if we have the Mafia running all through this case.

'MR. RUSSELL: I object and ask the jury to disregard the remark of counsel pertaining to the Mafia.

'THE COURT: If the jury heard any such remark they will disregard it.' (Emphasis added.

Defendant's argument was defensive to avoid any prejudice created by the remark of plaintiff's counsel. He stated:

'I come up here and I am defending a man named Manzella. He is of Italian descent. They tried to get the Mafia into the case because the man is an Italian and he runs a cab company. All these insinuations add up to nothing more than dirty pool. They didn't have a lawsuit to begin with so they just come in and attempt to muddy up the waters. That is what they said, that they intimated into the case.'

Then in closing, plaintiff's counsel stated:

'Who is muddying the waters? It sounds like Mr. Manzella. Counsel says the police didn't report it because they don't report drunks. It is a darn sad situation when the Police Department of Kansas City, Missouri, doesn't make a report on a drunk. Do you mean you believe that? No report was made because Mr. John Manzella and Mr. Willie Manzella were around there and took care of these things. They were moving around in there, don't you see? That is the way they operate that cab company.

'MR. RUSSELL: I object to the insinuation as highly improper.

'THE COURT: Sustained.

'MR. YONKE: Why didn't you bring them in?

'MR. RUSSELL: I am not on trial in this lawsuit.

'MR. YONKE: (continuing) Let's not talk about who is muddying the waters with their Evolas and their police reports and their people running around at the scene, not getting witnesses names except the ones they want to produce.'

Trial courts are vested with discretionary authority over questions of fact and matters affecting the determination of fact issues in ruling on motions for new trial. De Maire v. Thompson, 359 Mo. 457, 222 S.W.2d 93, 97. Appellate courts are liberal in deferring to a trial court's action on fact issues because of that court's better knowledge of the trial atmosphere and incidents, and their effect on the jury. De Maire case, supra ; Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297, 300; McFarland v. Wildhaber, Mo., 334 S.W.2d 1, 4. The appellant has the burden of affirmatively establishing reversible error. The respondent does not have to establish the correctness of the trial court's ruling. Hardy v. McNary, Mo., 351 S.W.2d 17, 20[2, 3], and cases cited. It is stated in Robbins v. Brown-Strauss Corp., 363 Mo. 1157, 257 S.W.2d 643, 648: 'The trial judge was in an excellent position to gauge the effect of the improper and objectionable argument, and, if he deemed the overall effect to have been so prejudicial as to deprive plaintiff of a fair and impartial trial as he undoubtedly did, he had the duty to cause the entry of the new trial order, although no objection had been made to such argument.' See also Stroh v. Johns, Mo., 264 S.W.2d 304, 307[8-10], ...