Meyer v. Clark Oil Co., 47111

• Decision Date: 18 December 1984
• Docket Number: No. 47111,47111
• Citation: 686 S.W.2d 836
• Parties: Frederick Thomas MEYER, Plaintiff-Appellant, v. CLARK OIL COMPANY, et al., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 836

686 S.W.2d 836

Frederick Thomas MEYER, Plaintiff-Appellant, v. CLARK OIL COMPANY, et al., Defendant-Respondent.

No. 47111.

Missouri Court of Appeals Eastern District.

Dec. 18, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Feb. 28, 1985.

James B. Herd, Michael F. Heavey, Deeba, DeStefano, Sauter & Herd, St. Louis, for plaintiff-appellant.

Anthony F. Vaiana, Kortenhof & Ely, Ben Ely, Jr., Joseph H. Raybuck, St. Louis, for defendant-respondent.

E. RICHARD WEBBER, Special Judge.

Adam L. Meyer died from injuries received when his automobile collided with a truck owned by the Clark Oil Company and driven by Samuel Davis. The deceased was the 24 year old brother of appellant who brought this wrongful death action which resulted in judgment upon jury verdict for defendants in the trial court. At the time of his death the decedent earned $15,000 annually, none of which was paid to his brother. The deceased did not support appellant in any way, performed no services for appellant and made no contributions to appellant either monetarily or in the form of services. Both jointly owned a "family home" which they maintained equally. By operation of law appellant became sole owner of the building and lot at the time of his brother's death.

The first assignment of error is that the trial court erroneously permitted defense counsel to argue that in determining pecuniary loss, the jury should consider appellant's total ownership of the "family home" after his brother's death as a gain since he had only a one-half interest before the death. Respondents opine that appellant failed to preserve this point for appellate review by properly objecting. The record in that regard reveals that counsel for defendant Clark Oil Company stated in his closing argument, "... as a matter of fact, in terms of pecuniary loss, I ask you to remember this. Now, Mr. Frederick Meyer is the sole owner of the house that he only owned half of." Plaintiff's counsel objected, "Judge, I object to this. Improper argument on the grounds previously stated."

The trial judge properly overruled the objection in this form which neither apprised the judge of the basis for the objection, nor described the extent of relief sought. An objection "... on the grounds previously stated" fails to inform the trial court of the precise reason for required court intervention. That proposition is discussed in Dolgin v. Potter Elec. Signal Co., 536 S.W.2d 61 (Mo.App.1976) at loc. cit. 65, "... Only one objection was made during this line of argument: 'Same objection, Your Honor.' ... An objection as formulated here preserves nothing for review. The purpose of an objection is to call to the attention of the trial court that which the objecting party considers to be error and the objecting party has the burden of making the basis of his objection reasonably apparent to the court. Crabtree v. Reed, 494 S.W.2d 42, 45 (Mo.1973)...."

While it was noted in Brookman v. General Safety & Sec., Inc., 600 S.W.2d 100 (Mo.App.1980) at loc. cit. 103, "Our appellate courts have not, in recent years, been quite so technical as they formerly were on this subject" counsel may not fashion a panoply by asserting general objections which serve to require a trial judge to review the entire case in a split-second ruling and speculate as to counsel's subjective thought processes. The record abundantly demonstrates why, in this case, no error is present.

Counsel for appellant successfully objected to testimony pertaining to the value of the "family home" on grounds of irrelevancy when defendant Clark Oil Company attempted to solicit that information. At the instruction conference appellant's counsel, not counsel for either respondent, stated that he intended to argue, "From the standpoint of pecuniary loss, I feel it's fair game to argue ... the support issue on payment of bills for keeping of the house ..." Counsel for respondents harmoniously objected promptly but were "overruled". This colloquy was followed by more than one hour of closing argument by three lawyers who offered various objections, with only the one pertaining to the "family home" which is first detailed in this opinion. When appellant's counsel states, "Judge, I object to this. Improper argument on the grounds previously stated " (emphasis supplied) he cannot be referring to grounds previously stated in his argument, because no other such objection was made. The record demonstrates how nebulous objections fail to inform the court of the subjective import intended, and why our appellate courts have recognized that they preserve nothing for appellate review. To hold otherwise would shift the burden to make proper objections from counsel, where it belongs, to the court, a practice which would both encourage counsel to plant a trap for the most discerning judges and frustrate attempts to restore judicial economy to appellate courts beleaguered by appeals.

Furthermore, the objection is inadequate because it fails to state the extent of relief requested to resolve the alleged defect. "Also, the failure to request the trial court to instruct the jury to disregard improper argument or a question constitutes a waiver of the right to complain on appeal that the jury was not so instructed, Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721 [ (1941) ], and the same is true when there is no request that the trial court reprimand counsel for improper argument. Vowels v. Missouri Pac. R. Co., 320 Mo. 34, 8 S.W.2d 7 [ (1928) ]." Olsten v. Susman, 391 S.W.2d 328 (Mo.1965). The record is silent as to any relief plaintiff's counsel expected the court to grant. The appellant is therefore without any basis to complain that the trial court failed to do that which was never requested.

Appellant's second allegation of error is resolved against him with the Court's ruling on the first point. The charge that the "collateral source rule" precludes argument that pecuniary gain resulted from decedent's death because at that time jointly held property passed to appellant is not preserved for appellate review. In Handshy v. Nolte Petroleum Company, 421 S.W.2d 198 (Mo.1967) at loc. cit. 202 the court ruled:

... "Since an appellate court is not a forum in which to make a new case, or in which new points will be considered, but is merely a court of review to determine whether or not the rulings of the trial court, as there presented, were correct, a party seeking the correction of error must stand or fall on the case which was made in the trial court, and thus it follows that only those objections or grounds of objection which were urged in the trial court, without change and without addition, will be considered on appeal." 4 C.J.S. Appeal & Error Section 253, p. 770. This point is therefore ruled adversely to plaintiff.

The judgment is affirmed.

CRIST, P.J., concurs.

BRUCE NORMILE, Special Judge, dissents in separate opinion.

BRUCE NORMILE, Special Judge, dissenting.

I respectfully dissent. In my view: First, the argument permitted was prejudicial error; Second, the general objection to the improper argument was sufficient under the circumstances of the case; and Third, the improper argument constituted plain error under Civil Rule 84.13(c).

In this case plaintiff's brother was killed as a result of an automobile accident wherein defendant Davis operated the other vehicle. Defendant Clark was Davis' employer. Plaintiff was 29 years old and the decedent was 24 years old. They were the only children of deceased parents. Decedent was unmarried. The two brothers jointly owned the family home, a two-family flat at the time of decedent's death. Plaintiff was married and lived elsewhere.

Upon cross examination of plaintiff, defendant Davis established that plaintiff became the sole owner of the home following his brother's death. Thereafter defendant Clark asked plaintiff if the value of the family place was about $60,000.00. Upon objection as to relevancy and the courts inquiry as to the purpose of the question, counsel for defendant Clark responded:

"Very simple, your Honor, it goes to show a lack of any pecuniary loss, in fact a pecuniary gain by this man. He is claiming a loss by the death of his brother...He went from half interest of a $60,000.00 house to a whole or full interest of the $60,000.00 house thereby gaining $30,000.00. I feel the defendant should be permitted to show that and it's largely in evidence by no objection from him that he is now the sole owner of the property. I think [I] should be allowed to show any economic or pecuniary gain by the defendant to offset any loss." (emphasis added)

The court thereafter stated "I will rule that as irrelevant and immaterial and will leave that out of the case." Following the offer of proof, the court further stated: "Now, bring me a case on that--if you plan to argue that in closing--shows that you can show gain to offset that."

At the close of the evidence, in the instruction conference, counsel and the court discussed the damages to be argued to the jury. At that time defendant Davis objected to any argument by plaintiff regarding bills for the upkeep of the house before or after decedent's death. The objection and ruling were as follows:

"Now, the mere fact that plaintiff now is obligated to pay all expenses as a result of the fact that he is now the owner of 100% of that house and therefore that is not a proper element of damages that can be argued by the plaintiff in this case. As a matter of fact, it's a pecuniary gain on his part on owning the entire property." (emphasis added)

The Court: "Overruled. I am not going to get involved in that."

Thereafter during the argument of the case plaintiff's counsels only reference to pecuniary loss related to the funeral bill. However, counsel for defendant Clark Oil Company then argued:

"This case is for the loss, pecuniary financial loss that allegedly was sustained or claimed to be have been sustained by Mr....