Morris v. DuPont De Nemours & Co.

• Decision Date: 07 May 1940
• Docket Number: No. 36741.,36741.
• Court: Missouri Supreme Court
• Parties: JEWELL MORRIS, Plaintiff, Respondent, v. E.I. DuPONT DE NEMOURS & COMPANY, a Corporation, ET AL., Defendants, Appellants.

139 S.W.2d 984

JEWELL MORRIS, Plaintiff, Respondent, v. E.I. DuPONT DE NEMOURS & COMPANY, a Corporation, ET AL., Defendants, Appellants.

No. 36741.

Supreme Court of Missouri.

Division One, May 7, 1940.^*

Appeal from Circuit Court of City of St. Louis. — Hon. Eugene L. Padberg, Judge.

REVERSED AND REMANDED.

Jones, Hocker, Gladney & Grand, Lon O. Hocker, Abel Klaw and Lon Hocker, Jr., for appellants.

(1) The demurrer should have been sustained. Where the inferences deducible from testimony are so opposed to all reasonable probability as to be manifestly false, the courts are not bound to stultify themselves by giving credence to such testimony, but will wholly disregard it. Tate v. Western Union, 339 Mo. 266, 96 S.W. (2d) 364; Roseman v. United Rys. Co., 251 S.W. 106. (2) The verdict was the result of passion and prejudice. (a) Where there is no question of malice involved, it is prejudicially erroneous to admit testimony of the wealth of a defendant. Sculley v. Rolwing, 88 S.W. (2d) 396. (b) Where the conduct of counsel is so prejudicial that it may improperly influence the jury and is of such a nature that no action of the trial court could remove the harmful effects thereof, no objection, motion or exception need be made to preserve the point on appeal. 4 C.J., p. 591; In re Golden's Estate, 37 Pac. (2d) 106; Starr v. C., B. & Q. Ry. Co., 103 Neb. 645, 173 N.W. 682; Milliken v. Larrabee, 192 S.W. 103. (c) Where the excessiveness of the verdict is so great that in itself it demonstrates passion and prejudice on the part of the jury, a remittitur cannot cure the error, and a new trial should be granted. Cunningham v. Doe Run Lead Co., 26 S.W. (2d) 957; Deep Min. & Drain. Co. v. Fitzgerald, 21 Colo. 533, 43 Pac. 210; Taylor v. Railroad, 185 Mo. 262, 84 S.W. 873; Lebrecht v. United Rys. Co., 237 S.W. 114. (2) On the showing made, the moving pictures, like still pictures, illustrating the process of manufacturing dynamite; were admissible in evidence. (a) They would be inadmissible only if the trial court, in the exercise of its sound discretion, should hold that they would not be a helpful aid to the jury in determining the issue of the improper or ineffective mixing of the ingredients of the dynamite. State v. O'Reilly, 126 Mo. 597, 29 S.W. 577; Commonwealth v. Roller, 100 Pa. Super. Ct. 125; Harrison v. Green, 122 N.W. 205, 157 Mich. 690; Anglea's Admr. v. Tel. Co., 142 Ky. 678, 134 S.W. 1115; Dederichs v. Ry. Co., 14 Utah, 137, 46 Pac. 656; State v. McGee, 336 Mo. 1082, 83 S.W. (2d) 98; Pandolfo v. United States, 286 Fed. 8; Heiman v. Market St. Ry. Co., 21 Cal. App. (2d) 311, 69 Pac. (2d) 178. (b) The court refused to exercise its discretion and held the pictures to be inadmissible as a matter of law. This was reversible error. Seibert v. Minneapolis & St. L. Ry. Co., 58 Minn. 58, 57 N.W. 1068; State ex rel. v. Camren, 226 Mo. App. 100, 41 S.W. (2d) 902; Dean v. Fire Assn., 65 Mo. App. 209; Iba v. Railroad, 172 Mo. App. 141, 157 S.W. 675; State ex rel. v. Ellison, 256 Mo. 644, 165 S.W. 369; Vastine v. Bailey, 46 Mo. App. 413.

Joseph A. Lennon, Bryan Purteet, K.P. Spencer and Francis R. Stout for respondent.

(1) Defendants' demurrer to the evidence was properly overruled. Morris v. DuPont de Nemours & Co., 109 S.W. (2d) 1222; Morris v. DuPont de Nemours & Co., 68 Fed. (2d) 788; McLeod v. Linde Air Prod. Co., 318 Mo. 397; Standard Oil Co. v. Pitcher Co., 289 Fed. 678; The New Berne, 80 Fed. (2d) 244; Daken v. Chase & Son Merc. Co., 197 Mo. 238; Connor v. Mo. Pac. Ry. Co., 181 Mo. 397; Martin v. St. L.-S.F. Ry. Co., 329 Mo. 729; Katella Co. v. Johnson, 202 Fed. 353; Good v. M.-K.-T. Ry. Co., 97 S.W. (2d) 612; State ex rel. City v. Haid, 325 Mo. 107; Solomon v. Moberly L. & P. Co., 303 Mo. 622; O'Leary v. Scullin Steel Co., 303 Mo. 363; Huelsmann v. Stute, 28 S.W. (2d) 387; B. & O. Railroad Co. v. Flechtner, 300 Fed. 320; State v. Rector, 328 Mo. 678; Dempsey v. Horton 337 Mo. 384; Wheeler v. Breeding, 109 S.W. 1241. (2) The verdict was not the result of passion and prejudice, but the plaintiff's evidence overwhelmingly demonstrated that plaintiff was entitled to recover, and in view of plaintiff's actual wage loss of over $44,000 and the terrible injuries (allowed $56,000) a verdict of $100,000 is not excessive. (a) Evidence of defendants' wealth was not improperly admitted as the defendants themselves first introduced such evidence, and plaintiff's counsel cross-examined defendants' witnesses on this evidence, which defendants had already introduced; the issue of the business done by the Ashburn plant the previous year, to its being dismantled, was admissible, as defendants claimed the plant was dismantled due to lack of business, and plaintiff claimed it was dismantled because the machinery was obsolete; the only objection made by defendants to the introduction of this evidence was that it was immaterial, which amounts to no objection at all. Ruth v. Transit Co., 98 Mo. App. 1, 71 S.W. 1060; Long v. Woolworth Co., 109 S.W. (2d) 91. (b) The conduct of plaintiff's counsel was proper. Defendants have taken part of the argument out of its setting, which tends to give it an entirely different appearance. The argument was proper and was not prejudicial. Defendants made no objection to the argument at the time and cannot now complain. Anderson v. Sutton, 316 Mo. 1058, 293 S.W. 773. (c) The verdict is not excessive, considering wage loss and injuries. (d) The defendants secured a fair trial, and if any unfairness is in the case it is defendants' attempts at unfairness. It is the province of the jury to determine the damages to be assessed for personal injuries, and the appellate courts only interfere in this respect when the verdict is beyond the bounds of reason. Grott v. Johnson, Stephens, Shinkle Shoe Co., 2 S.W. (2d) 789; Washburn v. Empire Bottling Co., 249 S.W. 712. (e) The previous verdict in this case should not be considered; the average of verdicts is not a proper measuring rule, and previous verdicts in other cases and here in Missouri justify this court in affirming this award for the full amount. Span v. Jackson Walker Coal & M. Co., 322 Mo. 158, 16 S.W. (2d) 203; Schleappe v. Terminal Railroad, 98 S.W. (2d) 616.

CLARK, J.

Plaintiff while employed as a miner in a clay mine operated by the Parker-Russell Company, at Wellsville, Missouri, on April 17, 1929, was injured by a premature explosion of dynamite. He sued E.I. DuPont de Nemours & Co., a corporation, (hereafter called the DuPont Co.) and its employee, Raithel, alleging; that the dynamite had been purchased from the DuPont Company who manufactured it; that Raithel, as the employee of the DuPont Company, had charge of mixing the explosive element, nitroglycerin, with the nonexplosive matter used in the manufacture of the dynamite; that defendants were careless and negligent in unevenly mixing the various elements so that some of it contained too much of the explosive matter and was likely to, and did, explode with slight friction and prematurely; and that the premature explosion which caused plaintiff's injuries was directly due to said negligence.

This is the second appeal of the case to this court. At the first trial the verdict was for the defendants. On appeal by plaintiff, we reversed and remanded for error in certain instructions given on behalf of defendants. [341 Mo. 821, 109 S.W. (2d) 1222.] At the second trial plaintiff recovered a verdict and judgment for $100,000.00 and defendants have appealed and now assign as error:

1. The overruling of defendants' demurrers to the evidence;

2. The rejection as evidence of certain motion pictures offered by defendants;

3. That the verdict is excessive and the result of passion and prejudice, induced by the conduct of plaintiff's counsel in offering and the trial court's ruling on, certain incompetent and prejudicial testimony and in improper argument to the jury by plaintiff's counsel.

[1] 1. Demurrers to the evidence. The facts developed at the first trial are fully set out in our opinion on the first appeal. We there held that plaintiff made a submissible case and, unless the evidence at the second trial is materially different from that introduced at the first trial, or unless we were mistaken as to some controlling fact on the first appeal, our former opinion is the law of the case. [Denny v. Guyton, 331 Mo. 1115, 57 S.W. (2d) 415, and cases cited. Also Cunningham v. Doe Run Lead Co. (Mo.), 26 S.W. (2d) 957.]

Appellants say there is a substantial difference in the evidence in this respect: that in the first trial there was no adequate description of the Hull machine in which dynamite is packed into cartridges; that there was no comparison between the force with which the dynamite was struck in so packing it and the force which, under plaintiff's evidence, caused the same dynamite to explode; that in the second trial it was shown that, in packing the dynamite into cartridges, the machine employed wooden plungers striking the dynamite in each cartridge four or five strokes at a pressure of seventy-six and one half pounds per square inch at each stroke; that plaintiff's expert, Dr. Cuno, testified that the pressure which later caused the explosion was less than two thirds of an ounce per square inch. From all this appellants draw the conclusion that the inferences deducible from the testimony are so opposed to all reasonable probability as to be unbelievable. We think appellants' argument on this point confuses the terms "pressure" and "friction." Plaintiff's expert based his deduction on the fact that the dynamite was exploded by a small amount of "friction." On this record, we cannot say that because the dynamite had previously withstood a large amount of "pressure" it is unbelievable that it was later exploded by a small amount of "friction." Besides, the testimony as to the amount of pressure which had been previously applied to the dynamite came from appellants' (defendants'...