Mickel v. Thompson

• Decision Date: 12 December 1941
• Docket Number: 37621
• Citation: 156 S.W.2d 721,348 Mo. 991
• Parties: Rheual W. Mickel v. Guy A. Thompson, Trustee of Missouri Pacific Railroad Company, Appellant
• Court: Missouri Supreme Court

156 S.W.2d 721

348 Mo. 991

Rheual W. Mickel v. Guy A. Thompson, Trustee of Missouri Pacific Railroad Company, Appellant

No. 37621

Supreme Court of Missouri

December 12, 1941

Appeal from Circuit Court of City of St. Louis; Hon. James E McLaughlin, Judge.

Affirmed (subject to remittitur).

Thos J. Cole for appellant.

(1)The court erred in not setting aside the judgment because its amount evidences the prejudice and passion that caused the verdict to be rendered.Morris v. E. I. Du Pont De Nemours Co.,139 S.W.2d 984;Gardner v. Stout,342 Mo. 1206, 119 S.W.2d 790;Partello v. Mo. Pac. Ry Co.,217 Mo. 645;Chlanda v. St. Louis Transit Co. and United Rys. Co.,213 Mo. 244;Malloy v. St. L. & Suburban Ry. Co.,173 Mo. 75;Burdict v. Mo. Pac. Ry. Co.,123 Mo. 221;Walker v. St. Joseph Belt Ry. Co.,102 S.W.2d 718;McGraw v. O'Neil,101 S.W. 132;Creve Coeur Lake Ice Co. v. Tamm,90 Mo.App. 189;L. & N. Ry. Co. v. Gregory,130 S.W.2d 739.(2)The court erred in not sustaining appellant's motion for new trial because of misconduct on the part of respondent's (a) In repeatedly offering in evidence alleged reports of doctors, when he knew that such reports were at most hearsay and for that reason not proper evidence.Ryan v. Sheffield Car & Equip. Co.,24 S.W.2d 166.(b) In intimating to the jury that appellant controlled the courts and juries of the State of Arkansas; that because of appellant railroad, respondent could not have obtained a fair trial in his home State of Arkansas, and that anything the appellant touched was thus contaminated so as to cause fear to respondent's counsel.Haynes v. Trenton,108 Mo. 123;Williams v. Frisco,123 Mo. 473;Foster v. Kurn,133 S.W.2d 1114;Brown v. Terminal Railroad Assn.,85 S.W.2d 226;Newport v. Montgomery Ward & Co.,127 S.W.2d 687;Goucher v. Woodmen's Accident Co.,104 S.W.2d 289;Gunter v. Whitener,75 S.W.2d 588;Masterson v. Chicago & N.W. Ry.,78 N.W. 757;A., T. & S. F. Ry. Co. v. Dwelle,24 P. 500.(c) In calling individual jurors by name and by advising one juror that he would place his hat on the hat rack, which counsel did.Secs. 22,23,Rule 353, Supreme Court of Missouri and Cannon of Ethics;Guin v. Gulf C. & S. F. Ry. Co.,89 S.W.2d 465;Dixie Motor Coach Corp. v. Galvin,86 S.W.2d 633.(d)The court erred in not sustaining proper objections to improper questions and in not instructing the jury to disregard the answers to such questions -- among them the questions as to whether or not plaintiff was a "good worker,""always been a good worker all the time,""did a good hard day's work,"etc. Davis v. Kornman, 141 Ala. 479, 37 So. 789.(3)The court erred in improperly ruling that questions asked by counsel for appellant were improper, when there was no objection to such questions by opposing counsel, thus conveying to the jury the inference that he favored respondent in the case.Mahoney v. Auto Transit Co.,329 Mo. 793, 46 S.W.2d 817;Schmidt v. St. Louis Ry. Co.,149 Mo. 269;Wair v. American Car & Foundry Co.,285 S.W. 155;Wilkerson v. Mo. Pac. Ry.,69 S.W.2d 299.(4) The judgment for thirty-five thousand dollars is still grossly excessive, and if this was to be cured by remittitur , then there should have been a remittitur of at least fifty-five thousand dollars from the verdict for sixty thousand.(Seecases cited under (1), supra.)

Mark D. Eagleton and Roberts P. Elam for respondent.

(1) The size of the verdict in this case does not warrant or permit a reversal and remand this case for a new trial upon the theory that the verdict evidences passion, prejudice or misconduct on the part of the jury.Cook v. Globe Ptg. Co.,227 Mo. 471, 127 S.W. 332;Clifton v. Kansas City So. Co.,232 Mo. 708, 135 S.W. 40;Varley v. Columbia Taxicab Co.,240 S.W. 218;Taylor v. Mo. Pac. Ry. Co.,311 Mo. 604, 279 S.W. 115;Sofian v. Douglas,23 S.W.2d 126;Kimberling v. Wabash Ry. Co.,337 Mo. 702, 85 S.W.2d 736;State ex rel. St. Joseph Belt Ry. Co. v. Shain,341 Mo. 733, 108 S.W.2d 351;Webb v. M., K. T. Ry. Co.,342 Mo. 394, 116 S.W.2d 27.(2) There was no reversible error in the alleged misconduct of the plaintiff's counsel.(a) There was no misconduct on the part of plaintiff's counsel with respect to the medical testimony and reports, and such occurrences as took place in connection therewith cannot be complained of by defendant because: 1.Those occurrences now complained of were incited and invited by the misconduct of defendant's counsel.King v. Stott's Estate,254 Mo. 198, 162 S.W. 246;Bobos v. Krey Packing Co.,323 Mo. 224, 19 S.W.2d 630;Seested v. Post Ptg. & Pub. Co.,326 Mo. 559, 31 S.W.2d 1045.2.In practically every instance now complained of by defendant, defendant's counsel failed to preserve the matters for review by failing to save exceptions.Osby v. Tarlton,336 Mo. 1240, 85 S.W.2d 27.3.The defendant, having failed to move to strike out such evidence in this connection as may have been improperly admitted -- if any there was -- is in no position to complain of its admission.Harrison v. St. Louis-S. F. Ry. Co.,339 Mo. 821, 99 S.W.2d 841;Brunk v. Hamilton-Brown Shoe Co.,334 Mo. 517, 66 S.W.2d 903;Donnell v. Stein,53 S.W.2d 903;Brackett v. James Black Masonry & Contracting Co.,326 Mo. 387, 32 S.W.2d 288.(b) The incident complained of in connection with the testimony of plaintiff's wife, Mrs. Lillian Mickel, and alleged by defendant to have intimated that defendant controlled the courts and juries in the State of Arkansas, was, likewise, incited and invited by the misconduct of defendant's counsel, and is, likewise, not reviewable because not properly preserved for review by exception duly saved.Authorities cited under Point (2), (a), 1 and 2, supra.(c) There was no misconduct on the part of plaintiff's counsel respecting his treatment of, and contacts with, the jurors.In any event, the incidents now complained of are not reviewable here because: 1.The incident respecting the juror's hat -- if there was any such incident -- does not appear anywhere in the record, excepting for a recital of such an incident in defendant's motion for a new trial, but that recital does not prove itself so as to permit review of the incident recited.And, of course, no exception was saved so as to permit review of this alleged incident.Middleton v. Kansas City Pub. Serv. Co.,152 S.W.2d 154;Engleman v. Railway Express Agency,340 Mo. 360, 100 S.W.2d 540;Sennert v. McKay,56 S.W.2d 105;Llewellyn v. Haynie,287 S.W. 634;Noren v. American School of Osteopathy,2 S.W.2d 215; Authorities cited under Point (2), (a), (2), supra.2.Not only was there no impropriety with respect to the incident where plaintiff's counsel called one of the jurors by name, but, in any event, it is not here reviewable because there was no timely objection to this incident.Gableman v. Bolt,336 Mo. 539, 80 S.W.2d 171;Myerson v. Peoples Motorbus Co.,297 S.W. 451.(3) There was no reversible error in connection with the rulings of the trial court now complained of by defendant.(a)The trial court had both the power and the duty to prevent witnesses from testifying about collateral and immaterial matters, and thereby unnecessarily wasting the time of the court, the jurors, the parties and counsel.Ganz v. Met. St. Ry. Co.,220 S.W. 490.(b) In two of the instances complained of, where the trial court sustained objections to the inquiries propounded by defendant's counsel, the questions were not only improper and the answers to them incompetent, but the matter is not the subject of review because the defendant failed to make any offer of proof.Owens v. Thomas,339 Mo. 532, 98 S.W.2d 561;St. Louis v. Pope,121 S.W.2d 861.(c) In the other instance complained of defendant was not prejudiced, in any event, because the plaintiff's counsel, after his objection had been sustained, withdrew the objection and defendant's counsel was permitted to make such inquiry as he desired of the witness on the subject matter.Price v. Haeberle,25 Mo.App. 201.(4) In the light of the nature, character and extent of plaintiff's injuries, and in the light of awards held not excessive in other cases for similar injuries, the judgment entered by the trial court after remittitur is not in the least excessive.Bond v. St. Louis-S. F. Ry. Co.,315 Mo. 987, 287 S.W. 777;West v. Kurn,148 S.W.2d 752;Span v. Jackson-Walker Coal & Mining Co.,322 Mo. 158, 16 S.W.2d 190;Rose v. Missouri District Tel. Co.,328 Mo. 1009, 43 S.W.2d 562;Aly v. Terminal Railroad Assn.,119 S.W.2d 313;Gourley v. Chicago & E. I. Ry. Co.,295 Ill.App. 160, 14 N.E.2d 842;Taylor v. Atchison, T. & S. F. Ry. Co.,292 Ill.App. 457, 11 N.E.2d 610;Hammond v. Pennsylvania Ry. Co., 15 F.2d 66.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Action for damages for personal injuries.The cause was tried to a jury and resulted in a verdict and judgment in favor of plaintiff for $ 60,000.Motion for new trial was duly filed.On the hearing of the motion, a remittitur of $ 25,000 was made; the motion was overruled, and defendant appealed.

Plaintiff was a brakeman and had been employed by the Missouri Pacific for about seventeen years.He was injured while at work at Russellville, Arkansas, about 6:30 A. M., November 21, 1938.The applicable Arkansas law was pleaded.It is alleged "that on or about the said 21st day of November, 1938 while plaintiff and defendant were engaged in intrastate commerce and transportation, and while plaintiff, in the usual course of his employment by defendant, was riding on top of a certain freight car which was coupled to another car moving in a cut of cars over and along defendant's tracks at Russellville, Arkansas, defendant, his agents, servants and employees (other than plaintiff), negligently and...