Mosley v. St. Louis Public Service Co.

• Decision Date: 08 April 1957
• Docket Number: No. 1,No. 45850,45850,1
• Citation: 301 S.W.2d 797
• Parties: Edward MOSLEY, Jr., Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant
• Court: Missouri Supreme Court

Page 797

301 S.W.2d 797

Edward MOSLEY, Jr., Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.

No. 45850.

Supreme Court of Missouri, Division No. 1.

April 8, 1957.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 13, 1957.

Robert E. Staed, Clayton, for appellant, Lloyd E. Boas, St. Louis, of counsel.

William R. Kirby, St. Louis, for respondent.

HOLMAN, Commissioner.

Action by plaintiff to recover damages for personal injuries alleged to have been sustained when one of defendant's streetcars struck a parked truck in which he was seated. A jury returned a verdict for plaintiff in the sum of $300. Plaintiff filed a motion for new trial which the trial court sustained. Defendant has appealed from that order. Since the prayer of plaintiff's petition is for $20,000 it would appear that we have jurisdiction by reason of the 'amount in dispute.' Article V, Section 3, Constitution of Missouri 1945, V.A.M.S.

Plaintiff was employed by the H. C. Schoenberg Construction Company as a carpenter and carpenter-foreman. On the morning of October 5, 1953, he and Bobby Schoenberg (son of H. C. Schoenberg) stopped at 120 South Central Street in Clayton, Missouri, to pick up some building materials needed for an emergency job in downtown St. Louis. Their truck was parked between defendant's northbound tracks and a barricade around some sand that had been placed in the street. A tool box on the west side of the truck created about a two-inch overhang beyond the ordinary truck body. After the materials had been loaded in the truck plaintiff entered the cab and was seated on the passenger side. Bobby then started around the front of the truck to enter on the driver's side. At this point they each heard a streetcar bell clang three times and almost simultaneously the streetcar struck the truck. The first few feet of the streetcar had cleared the truck but it appeared that the rear jamb of the front door had struck the tool box on the truck. The force of the impact drove the truck forward and to the right so that it stopped on the curb.

In the collision plaintiff was knocked to the floor of the truck. Some one opened the door and he got out 'dazed and shaken.' Bobby was apparently hit by the forward motion of the truck and received injuries which required that he immediately be moved, by ambulance, to a hospital. Plaintiff continued to work for several hours but began to feel so badly that Mr. Schoenberg sent him home and had Dr. Richtarsic call and treat him. Later he was treated by Dr. Ford who testified that in his opinion plaintiff had a mild injury to the lumbosacral intervertebral disc. In addition to medicine and a board under his mattress, Dr. Ford prescribed a corset which plaintiff wore for six months and occasionally thereafter.

Plaintiff lost about four days' work and then returned to supervisory work. He stated that for some time he could not do any lifting or bending. At trial time he was able to 'get around pretty good' but he would have recurrences when his back would bother him; that there had not been a day since the injury that he had been entirely free of pain in his back. Other facts will be stated in connection with a discussion of the merits of the issue presented upon this appeal.

The trial court sustained plaintiff's motion for new trial upon the sixth ground assigned therein, which is as follows: 'Because defendant's counsel in his closing argument exceeded the bounds of legitimate advocacy by making prejudicial, improper and misleading statements and accusations in his arguments to the jury as to constitute reversible error, and the court erred in overruling plaintiff's objection thereto and that said argument was so prejudicial, improper and misleading, that plaintiff did not receive a fair and impartial verdict in said case.' We should here notice the other six grounds specified in the motion. They are, '1. Because the verdict is against the evidence. 2. Because the verdict is against the weight of the evidence. 3. Because the verdict is against the law. 4. Because the verdict is against the law and the evidence and the law under the evidence. 5. Because the verdict is grossly inadequate. * * * 7. Because the verdict of the jury was not based upon the evidence and the instructions of the court, but were contrary thereto, based upon bias and prejudice against this plaintiff.'

The statements complained of were made by defendant's counsel immediately following a discussion in his argument of the instruction on credibility of witnesses and the duty of the jury to consider the interest of the witnesses and the credit to be given their testimony, and were as follows:

'Mr. Staed: And, who has a greater interest in the outcome of this lawsuit than Ed Mosley? And, apparently from what I have seen of it, and what you have seen of it too, now, somebody has kind of been master-minding it. He isn't here now, but Mr. Schoenberg has been in court and has been pretty active in it----

'Mr. Kirby: I object to that on the ground that Mr. Schoenberg was under subpoena to produce records, and was only excused----

'Mr. Stead: That's a highly improper argument, and I ask that the jury be discharged and a mistrial be declared.

'Mr. Kirby: I would like to make a record.

'The Court: I will overrule the objection and deny your request.

'Mr. Staed [continuing the argument]: Mr. Schoenberg appeared here as a witness, put on by Mr. Kirby, and I asked him about his records and, as far as I am concerned, you heard enough from what he said about his records, that there was nothing further to be proven by them. Yes, we had him under subpoena, but the only thing I wanted to prove was, when Ed Mosley said he wasn't paid for the time he was off, it has turned out he was paid; and, Mr. Schoenberg said he thought he was paid.'

Thereafter, in at least two instances, without any objection being made, defendant's attorney referred to the activities of Mr. Schoenberg in the case and stated that the jurors 'have seen Mr. Schoenberg running this lawsuit.'

In his closing argument the attorney for plaintiff attempted to answer the questioned argument, stating, 'What do they want? Do they want Mr. Schoenberg to stay out of the courtroom entirely and not tell you the distance this truck was knocked? Do they want him to stay out of the courtroom and not tell you what he saw out there? * * * I think maybe Mr. Mosley did need somebody to direct his lawsuit because, when you are up against a defendant who will come in' etc.

After the jury had retired to consider its verdict the following occurred:

'Mr. Kirby: I would like to make a record.

'The Court: Very well.

'Mr. Kirby: I would like at this time to make my objection that I was not permitted, during Mr. Staed's closing argument, referring to Mr. Schoenberg, in that it is so unfair for him to have a witness under...