Moss v. Greyhound Lines, Inc., 40380

• Decision Date: 07 October 1980
• Docket Number: No. 40380,40458.,40380
• Citation: 607 S.W.2d 192
• Parties: Elmer MOSS, Appellant, v. GREYHOUND LINES, INC., and Stephen Ellis Scott, Respondents.
• Court: Missouri Court of Appeals

607 S.W.2d 192

Elmer MOSS, Appellant, v. GREYHOUND LINES, INC., and Stephen Ellis Scott, Respondents.

Nos. 40380, 40458.

Missouri Court of Appeals, Eastern District, Division Two.

October 7, 1980.

Friedman, Weitzman & Friedman, St. Louis, for appellant.

Robert M. Paskal, Clayton, George J. Miller, St. Louis, for respondents.

PUDLOWSKI, Judge.

Plaintiff Elmer Moss appeals from a jury verdict in favor of defendant Greyhound Bus Lines and a directed verdict in favor of defendant Stephen Scott.

Plaintiff's pertinent evidence regarding defendant Scott showed that on a dark and rainy morning plaintiff Moss was traveling west on Interstate 70 in St. Louis. Noticing that all traffic ahead of him had stopped, Moss brought his automobile to a halt about 35 to 40 feet behind the standing traffic. After remaining in this position for about aminute, Moss' automobile was struck violently from the rear three successive times by another vehicle. Each of the three impacts caused Moss' head to snap backward and forward. It developed at trial that Moss was struck by defendant Scott's auto. Scott, driving in the passing lane, passed a Greyhound bus driven by Frank Crawford. Upon seeing the standing traffic Scott moved into the middle lane. The record shows that he stopped in the middle lane directly behind the plaintiff. A Greyhound bus then struck Scott's vehicle from the rear. The force of this collision caused Scott's foot to rest on his accelerator, propelling him into plaintiff's automobile three times.

Moss sued both Scott and Greyhound. At the close of plaintiff's case defendant Scott moved for a directed verdict on the ground that plaintiff had failed to make a submissible case of negligence. This motion was sustained as to defendant Scott. The jury found in favor of defendant Greyhound.

Plaintiff's appeal alleges five points of error. Plaintiff's first contention is that the trial court erred in sustaining defendant Scott's motion for directed verdict. Plaintiff contends that granting the motion was error because he made a submissible prima facie case in that defendant Scott negligently moved his vehicle from the passing lane to the middle lane. In reviewing this point we must examine the evidence in the light most favorable to plaintiff. Further, we must give plaintiff the benefit of all favorable inferences that can be reasonably derived from the evidence. Epple v. Western Auto Supply Co., 548 S.W.2d 535, 538 (Mo.1977). In so doing we find competent evidence adduced at trial is insufficient to establish that defendant Scott changed lanes when it was not safe to do so.¹

Plaintiff's second contention is that the trial court erred by allowing counsel for defendant Greyhound to make improper remarks in closing argument concerning defendant Scott's image, appearance and personality. From our reading of the trial record we think these references concerning defendant Scott exceeded the bounds of propriety. The references pertaining to defendant Scott were improper because they were not directed to an issue relevant in the lawsuit nor were they comments on the evidence or inferences drawn therefrom. Handshy v. Nolte Petroleum, 421 S.W.2d 198, 201 (Mo.1967). However, the trial court, having the opportunity to hear counsel argue is vested with wide discretion in determining the prejudicial effect of improper remarks. McCandless v. Manzella, 369 S.W.2d 188, 190 (Mo.1963). There being no abuse of discretion demonstrated we refuse to reverse on the ground asserted in plaintiff's second point on appeal.

Plaintiff's third assignment of error is that the trial court prejudicially erred in allowing counsel for defendant Greyhound to make the following argument to the jury:

This case, as Mr. McLaughlin has told you, will end today, and you ladies and gentlemen have to make that determination, first of all, the issue of liability, and you are not to take into consideration whatsoever the sympathy towards any of the parties. That would also apply to Greyhound Lines. At the same time, you are to make that decision without a determination of well, Greyhound is a corporation.

There is more to it than that, ladies and gentlemen. You have to come back into this courtroom and tell us your decision, and I can assure you that Mr. Crawford, he has an interest in this case. He is going to be here also, and he is going to be standing with me.

Mr. McLaughlin: Your Honor, I wish you would instruct the jury that Mr. Crawford has no, absolutely no interest in this case as a matter of law, and I would ask that you instruct the jury accordingly in view of that comment.

The Court: Closing arguments, gentlemen.

Mr. Miller: Tomorrow Mr. Crawford will be taking out another bus and I think he has the right and the assurance, and I think he has the right to proceed down that highway knowing he is a safe driver, that he won't be second guessed when he makes his best judgment, I would ask you when you go up there and make your decision to do so fairly and according to law, and to fulfill your duty * * *.

Plaintiff argues that the above argument was improper because Mr. Crawford, the bus driver, was not a party to the suit, and therefore counsel's remark that Mr. Crawford had an interest in the outcome of the litigation constituted prejudicial error. Obviously counsel did refer to an "interest" which Mr. Crawford may have had in the case. It is our opinion that such reference was merely intended as an expression of "concern." Therefore, we conclude that the above comments do not indicate that Mr. Crawford had a legal interest in the case but merely a concern in the popular sense of the word. Cf. City of Advance v. Maryland Casualty Co., 302 S.W.2d 28 (Mo.1957) (where argument regarding the respective interests, rights and liabilities of defendant was found to be improper and prejudicial).

Plaintiff also contends that the sole reason counsel for Greyhound made the above quoted argument was to appeal to the sympathy of the jury and to invite them to put themselves in the place of the defendant. Such a practice is uniformly condemned. Fischer v. Williams, 327 S.W.2d 256, 263 (Mo.1959); Faught v. Washam, 329 S.W.2d 588, 604 (Mo.1959). However, a careful reading of the argument complained of in the case at bar, does not reveal a plainly urgent and manifestly improper position. Redick v. M. B. Thomas Auto Sales, 273 S.W.2d 228, 238 (Mo.1954). First, argument of defendant Greyhound's counsel at no point invited the jury to place themselves in Mr. Crawford's or Greyhound's position. Therefore it may not be said that the trial court abused its discretion in overruling an objection because of this alleged impropriety. Schroeder v. Wells, 298 S.W. 806, 815 (Mo.1927).

Plaintiff's fourth contention is that the trial court erred in refusing to allow plaintiff to reopen his case against defendant Scott. The record shows that after plaintiff had concluded his case defendant orally moved for a directed verdict. Before considering the motion the jury was excused for noon recess. After hearing arguments from both counsel...