Rob-Lee Corp. v. Cushman

• Decision Date: 07 April 1987
• Docket Number: No. 50765,ROB-LEE,50765
• Citation: 727 S.W.2d 455
• Court: Missouri Court of Appeals
• Parties: CORPORATION, Appellant, v. John CUSHMAN d/b/a Cushman & Sons Diesel Service, Respondent.

Page 455

727 S.W.2d 455

ROB-LEE CORPORATION, Appellant, v. John CUSHMAN d/b/a Cushman & Sons Diesel Service, Respondent.

No. 50765.

Missouri Court of Appeals,

Eastern District,

Division One.

April 7, 1987.

Jerome Wallach, St. Louis, for appellant.

Paul E. Kovacs, Clayton, for respondent.

KELLY, Presiding Judge.

Appellant Rob-Lee Corporation appeals from the judgment of the trial court following a jury verdict in favor of respondent John Cushman d/b/a Cushman & Sons Diesel on appellant's action against respondent and on respondent's counterclaim for storage charges.

We affirm the judgment of the trial court.

The underlying facts are not in dispute. Appellant is an over-the-road trucking company and respondent is engaged in the business of repairing such trucks. In November of 1979 respondent performed a chassis overhaul on one of appellant's trucks. This was the first chassis overhaul performed for appellant by respondent during the parties' ongoing business relationship. After completion of the work on the truck, it was returned to appellant on a Friday. The truck was not used over the weekend. The following Monday an employee of appellant informed his supervisor that the truck would not start. After inspecting the truck, appellant immediately communicated to respondent that the truck's radiator appeared frozen. The truck was returned to respondent's shop. After an examination respondent reported to appellant that, due to a lack of antifreeze, the truck's engine block was frozen. At that point appellant authorized no repairs, and took no action to remove the truck from respondent's possession. Respondent stored the truck in a vacant stall inside its shop for nearly two years before having its wrecker company tow the vehicle away.

During trial there was conflicting testimony regarding whether respondent had been advised to replace the antifreeze in appellant's truck. Respondent maintained it was under instructions by appellant not to replace the antifreeze, and that it was the practice of appellant to replace its own antifreeze. Appellant unequivocally denied both assertions.

In attempting to prove their positions, both parties introduced into evidence with no objection respondent's repair order for the chassis overhaul work. The repair order was a standardized form which contained all pertinent information regarding the repair of the truck as well as warranty language relating to certain repairs. Appellant used this exhibit in a very limited manner during trial. Appellant called the date of the repair order and the amount of the repairs to the jury's attention. Respondent made one reference to the exhibit to show that the radiator was drained around November, 1979. The remainder of the document was not read or discussed by either party, nor was it passed to the jury for inspection.

During the rebuttal portion of closing arguments, however, appellant began to read that portion of the exhibit pertaining to the warranty language which had not been read or discussed during the evidentiary phase of trial, or during the initial closing argument of either party. The court sustained respondent's objection to the reading of that portion of the exhibit. Later, during jury deliberations, the court denied the jury's request to see the exhibit.

Appellant raises on appeal trial court error in denying appellant's request to read and argue from an exhibit during rebuttal closing argument, and error in refusing to deliver the same exhibit to the jury upon the jury's request to examine the exhibit during deliberations.

In challenging the trial court's decision restricting the use of the exhibit, appellant's main argument rests on the prevailing rule that where a written document is admitted into evidence, the entire contents of the document are admitted, absent specific objections to admit it on a partial basis. Lawson v. Schumacher & Blum Chevrolet Inc., 687 S.W.2d 947 (Mo.App.1985). This view has long been followed in Missouri since Sikes v. Riga, 221 Mo.App. 152, 297 S.W. 727 (1927) and Dayton Folding Box Co. v. Danciger, 161 Mo.App. 640, 143 S.W. 855 (1911). Thus, Lawson and its forerunners make clear that there is no basis to later object about the admittance of a document, in whole or in part, once the trial court has admitted the document into evidence.

Appellant is correct in its analysis of Missouri case law regarding the admission of documents into evidence. However, this analysis is misapplied. Appellant here attempted to argue from an exhibit during closing argument. The issue is not the right to argue from evidence admitted without objection as the appellant suggests, but rather the right and duty of the trial court to control counsel's conduct during closing argument.

It is a well known principle that the trial court is vested with broad discretion in controlling argument of counsel and determining the prejudicial effects therein. Eddings v. Keller, 400 S.W.2d 164 (Mo.1966); Moss v. Kozeny-Wagner Const. Co., 625 S.W.2d 688 (Mo.App.1981). The trial court also has considerable discretion in monitoring the content of closing argument. Hoover's Dairy, Inc. v. Mid-American Dairymen, 700 S.W.2d 426 (Mo. banc 1985); Pfeffer v. Kerr, 693 S.W.2d 296 (Mo.App.1985). In Hoover's Dairy this court stated: "Determining the prejudicial effect of final argument is a matter within the discretion of the trial court, and the trial court's judgment on that matter will not be disturbed unless there was an abuse of discretion." [citations omitted] 700 S.W.2d at 434. Absent a clear abuse of discretion, the trial court's ruling will stand. Norfolk and Western Railway Co. v. Greening, 458 S.W.2d 268 (Mo.1970).

During the trial, neither party discussed or explained any type of warranty claim. In the course of final argument, counsel for appellant, in referring to the repair order, stated: [Counsel]: "This is all the stuff he [respondent] did on the truck but at the end he warrants it." Respondent immediately objected. During the bench conference appellant argued that he did not intend to read from the exhibit to show warranty, but rather to show the absence of an antifreeze exception to the warranty. Respondent pointed out that even if appellant did not intend to argue a warranty theory, the exceptions to the warranty were inseparable from the warranty language itself, and would, thus, confuse the jury.

We agree with respondent. It is well settled that it is within the trial court's discretion to limit arguments to the issues, and not to allow a party the opportunity to argue prejudicial matters or urge theories, claims, or defenses which the law does not support or which are inconsistent with the trial court's instructions. Hart v. Forbes, 633 S.W.2d 90[1, 2] (Mo.App.1982); Carrel v. Wilkerson, 507 S.W.2d 82[1-3] (Mo.App.1974). Allowing the appellant to read the warranty provisions of the repair order to the jury would have presented the jury with a prejudicial,...