Prague v. Eddy

• Decision Date: 08 November 1948
• Docket Number: 40610
• Parties: E. L. Prague, (Plaintiff) Respondent, v. Tom G. Eddy and James R. Sewell, (Defendants) Appellants
• Court: Missouri Supreme Court

214 S.W.2d 521

358 Mo. 327

E. L. Prague, (Plaintiff) Respondent, v. Tom G. Eddy and James R. Sewell, (Defendants) Appellants

No. 40610

Supreme Court of Missouri

November 8, 1948

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.

Reversed and remanded.

Wilbur C. Schwartz and Joseph Nessenfeld for appellant Tom G. Eddy.

(1) The argument constituted an appeal to the jury to render a verdict based upon the insurance coverage of the parties, and to guarantee and make certain to the plaintiff that he would be able to collect a large judgment in full. It is improper and prejudicial to refer to insurance coverage and to request verdicts upon the basis of collectibility, rather than solely upon the evidence and the merits of the case. Buehler v Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961; Rytersky v. O'Brine, 335 Mo. 22, 70 S.W.2d 538; Adams v. Carlo, 84 S.W.2d 682; Whitman v Carver, 337 Mo. 1247, 88 S.W.2d 885; Page v. Unterreiner, 106 S.W.2d 528. (2) Plaintiff's counsel in his argument stated that he was entitled to a verdict against both defendants, and the trial court in effect agreed with him. The effect of the foregoing was to intimate to the jury that the court believed the evidence justified a verdict for plaintiff against both defendants. This was unfair and prejudicial to defendant, and the court erred in so doing. Mooney v. Terminal R. Assn., 352 Mo. 245, 176 S.W.2d 605; McGowan v. Wells, 24 S.W.2d 633. (3) Plaintiff's counsel improperly asked the jury, in effect, to place themselves in the position of plaintiff in bringing in their verdict. The trial court erred in overruling defendant's objection to this line of argument, and in permitting the same, and in stating to the jury that the argument was legitimate. Sullivan v. St. Louis-S.F. Ry. Co., 12 S.W.2d 735. (4) The court erred in permitting plaintiff's counsel to argue to the jury that they should bring in a verdict against both defendants, if they felt that the injury would not have occurred if either had been careful, for the purpose of doubly assuring plaintiff of collecting his judgment. The The action of the court permitted counsel to argue a different and improper basis of recovery against defendant, without regard to the instructions in the case and the evidence. State ex rel. v. First Natl. Bank, 22 S.W.2d 185. (5) The court erred in giving and reading to the jury Instruction 1. The instruction is misleading and confusing and permits a recovery against defendant Eddy upon a finding that he failed to keep a watch, without regard to any other facts or circumstances in the case, and without requiring the finding of any facts whatever with respect to what this defendant failed to do or should have done under the circumstances existing. Carle v. Akin, 87 S.W.2d 406; Brown v. Toedebush Transfer, Inc., 354 Mo. 611, 190 S.W.2d 239.

Fred H. Blades, John S. Marsalek and Moser, Marsalek, Carpenter, Cleary & Carter for appellant James R. Sewell.

(1) The court erred to defendant Sewell's prejudice in giving plaintiff's Instruction 2. The instruction erroneously authorizes a finding of negligence against defendant Sewell based upon facts which are not sufficient to support such a finding, but are consistent with due care on defendant Sewell's part. Branson v. Abernathy Furniture Co., 344 Mo. 1171, 1180, 130 S.W.2d 562. (2) The instruction is erroneous and misleading, in that it permitted the jury to find that defendant Sewell was driving at a negligent speed merely because, when Eddy turned to the south and ran directly in front of Sewell's car, the occupants of Eddy's car were endangered. Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593. (3) The argument of plaintiff's counsel that a verdict should be rendered against both defendants as a sort of insurance, a double assurance, and a guarantee that plaintiff would get something out of it, was improper as a covert suggestion that both defendants carried insurance, out of which a judgment would be paid. Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961; Rytersky v. O'Brine, 335 Mo. 22, 70 S.W.2d 538; Nolen v. Halpin-Dwyer Const. Co., 225 Mo.App. 224, 29 S.W.2d 215; Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673. (4) Counsel's statement was prejudicial, even though a word other than insurance or assurance had been used, because it constituted a frank appeal for a verdict against both defendants, for the reason that a verdict against one of the defendants alone might not be collectible. Manifestly, such was no proper ground for a verdict against both defendants. Bishop v. Hunt, 24 Mo.App. 373; Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482; Amsinger v. Najim, 335 Mo. 528, 738 S.W.2d 214. (5) The argument, made with the court's express sanction and approval, inviting the jury, in determining whether to render a verdict against one or both defendants, to consider plaintiff's right to the insurance or double assurance that he would be able to collect his judgment, presented a false issue and constituted a misstatement of the law. Such misstatements of the law in argument have repeatedly been held to require reversal. Stanton v. Jones, 19 S.W.2d 507; Courter v. Chase Mercantile Co., 299 S.W. 622; Johnson v. A., T. & S.F.R. Co., 290 S.W. 462; Better Roofing Materials Co. v. Sztukouski, 183 S.W.2d 400. (6) In reply to an objection by defendant's counsel plaintiff's counsel made the statement: "I am sure I am entitled to that -- to a verdict against both of them." The court thereupon stated, "Yes, that is all right," thus greatly prejudicing the defense and leading the jury to believe that the court agreed with counsel's statement that he was entitled to a verdict against both defendants. Rose v. Kansas City, 125 Mo.App. 231, 102 S.W. 578; Primmer v. American C. & F. Co., 299 S.W. 825; Maryland Cas. Co. v. Spitcaufsky, 352 Mo. 547, 178 S.W.2d 368.

Oliver J. Miller and Lashly, Lashly, Miller & Clifford for respondent.

(1) Instruction 1 is not misleading and confusing. It was proper to authorize a recovery for failure to keep a watch ahead in the direction in which defendant Eddy was driving his automobile, when coupled with a finding that such failure directly brought about a collision with an automobile approaching from the direction in which Eddy was driving his said automobile without looking. Nelson v. Evans, 338 Mo. 76, 92 S.W.2d 691; Byram v. East St. Louis Ry. Co., 39 S.W.2d l.c. 381; State ex rel. v. Haid, 333 Mo. 76, 62 S.W.2d 400. (2) Instruction 2 was not misleading or prejudicial. The evidence furnished abundant proof of circumstances from which speed on the part of Sewell in the operation of his car could be readily and reasonably inferred. State ex rel. Hauk v. Haid, 333 Mo. 76, 62 S.W.2d 400; Smith v. Weilbacher, 35 S.W.2d l.c. 997; Carleton v. Lovelace, 173 S.W.2d 13; Allison v. Dittbrenner, 50 S.W.2d l.c. 202; Johannes v. Becht Laundry Co., 274 S.W. 377. (3) If the instruction was too narrow in its definition of defendant Sewell's negligence in driving his car under the circumstances, then defendant should have requested qualifying instructions. Stanton v. Jones, 332 Mo. 631, 59 S.W.2d 648; Long v. Rogers, 185 S.W.2d 863; Zeppenfeld v. Morgan, 185 S.W.2d 863. (4) The instruction does not authorize the jury to find against defendant Sewell solely because the occupants in Eddy's car were endangered when Eddy turned south across the highway, but because of the statute. Sec. 8383, R.S. 1939. (5) There was nothing in the argument of plaintiff's counsel which requires reversal. No prejudice could have been created by requesting a joint verdict under Instruction 3 if the facts warranted it. The discretion exercised by trial court in permitting the argument must be supported on appeal. Cordray v. City of Brookfield, 334 Mo. 249, 65 S.W.2d 938. (6) The assumption that plaintiff's counsel acted in good faith must be indulged on the record. Jablowsky v. Modern Cap Co., 319 Mo. 1169, 279 S.W. 97; Cozzel v. Schofield, 319 Mo. 1169, 8 S.W.2d 580. (7) No specific timely objections were made to the court's remarks. Chaffer v. Eagle Discount Co., 348 Mo. 1023, 156 S.W.2d 591. (8) Because the argument did not go beyond the wide latitude which should be permitted in commenting on the instructions and evidence. Marlow v. Nafziger Baking Co., 333 Mo. 790, 63 S.W.2d 115; Grab v. Davis Const. Co., 109 S.W.2d 882; Finkle v. Western Auto Co., 26 S.W.2d 843.

OPINION

Clark, J.

Each defendant has appealed from a judgment against both for $ 23,000.00 in favor of plaintiff for damages for personal injuries. Plaintiff's injuries were caused by a collision between an automobile in which he was riding as a guest, driven by defendant Eddy, and an automobile driven by defendant Sewell. The collision occurred at night in the south lane of U.S. Highway 66 in St. Louis County. The highway is paved and consists of four nine foot lanes marked by intervening black stripes. Just prior to the collision the Eddy car was traveling west in the north lane and the Sewell car was approaching from the west in the south lane. The engine of the Eddy car had been missing and defendant Eddy decided to make a left turn across the highway to a filling station located south of the highway. The Sewell car, traveling east in the south lane, struck the right side of the Eddy car near the front with sufficient force to greatly damage both cars and severely injure plaintiff who was riding on the right side of the front seat in the Eddy car.

From this point the evidence is somewhat in conflict, the plaintiff seeking to make a case against both defendants and each defendant seeking to absolve himself and place the entire blame on the other defendant.

Against each defendant only primary or antecedent negligence is...