Ryan v. Campbell '66' Exp., Inc., 45656

• Decision Date: 09 September 1957
• Docket Number: No. 45656,45656
• Citation: 304 S.W.2d 825
• Parties: James RYAN, Respondent, v. CAMPBELL '66' EXPRESS, Inc., a Corporation, Appellant. . En Banc
• Court: Missouri Supreme Court

Page 825

304 S.W.2d 825

James RYAN, Respondent, v. CAMPBELL '66' EXPRESS, Inc., a Corporation, Appellant.

No. 45656.

Supreme Court of Missouri. En Banc.

Sept. 9, 1957.

F. X. Cleary, C. M. Kirkham, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for appellant.

William H. Becker, Robert C. Smith, Jr., Columbia, Roberts P. Elam, St. Louis, Clark & Becker, Columbia, Elam & Casey, St. Louis, of counsel, for respondent.

EAGER, Judge.

This is a suit for personal injuries sustained in a collision between a panel truck operated by plaintiff, and a tractor-trailer operated for defendant. The prayer of the petition was for $75,000. Plaintiff sustained serious injuries, but it will be unnecessary to discuss them here. The accident occurred on Highway 54 about a mile south of Mexico, Missouri, on July 1, 1952. Plaintiff was working as a route man for a linen supply company of Columbia, Missouri. The petition charged primary negligence in several respects, but the sole controversy actually tried and submitted was whether defendant's tractor-trailer or plaintiff's truck caused the collision by crossing the center line of the highway. The collision itself established the fact that one or the other did so. Plaintiff was going south, and the tractor-trailer north; the highway was straight at the point of collision. A second and a third count of the petition, each charging malicious prosecution of civil proceedings, were dismissed at the trial, and are not involved here; a counterclaim for damage to the trailer was dismissed without prejudice at the close of the evidence.

The jury returned a nine-man verdict for defendant. The court sustained plaintiff's motion for new trial on three grounds assigned in the motion, and also assigned five additional grounds 'of its own motion.' Defendant has appealed from that order. The grounds thus assigned for sustaining the motion are lengthy and somewhat complicated. We shall not set them out verbatim. In substance, they are all based on supposed misconduct of defendant's trial counsel, and more specifically that: (a) counsel persistently asked for conclusions and opinions from the two highway patrolmen who testified, and, by repeated references to the patrol report, gave the jury the impression that it was unfavorable to plaintiff, and that thereby counsel violated the rulings of the court; (b) counsel persisted in displaying, explaining, and asking questions concerning a photograph of the highway on which a highway patrolman had punched a hole to locate the supposed point of impact, which exhibit the court had ruled inadmissible; (c) counsel persistently asked for opinions and conclusions of witnesses, therein failing to comply with the rulings of the court, and thus forced plaintiff's counsel to make numerous objections, and created unfavorable inferences; (d) counsel made 'long and emphatic complaint' to the court in the presence of the jury of supposed remarks and gestures of plaintiff's counsel, which was not justified; (e) counsel acted 'amazed and shocked' at certain rulings of the court; and (f) these matters, actions and occurrences 'injected false issues into the case.'

These assigned grounds have necessitated a minute examination of the record, and will require a comewhat tedious recital here. The numerous cases cited pro and con are applicable only to establish the recognized principles upon which we must proceed. None is specifically in point on these particular facts; and, of course, every case of this character depends solely upon its own facts and record. A trial court is necessarily allowed considerable discretion in declaring a mistrial or in granting a new trial on matters which concern issues of fact. Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121, 219 S.W.2d 333, 8 A.L.R.2d 710. And, therein, the trial court is vested with a wide discretion in determining whether, in view of the action already taken, the conduct or ruling was prejudicial and substantially influenced the verdict. Stutte v. Brodtrick, Mo., 259 S.W.2d 820; State ex rel. and to Use of Donelon v. Deuser, 345 Mo. 628, 134 S.W.2d 132; Gettys v. American Car & Foundry Co., 322 Mo. 787, 16 S.W.2d 85, 89; Welch v. McNeely, Mo., 269 S.W.2d 871; Buzan v. Kansas City Railways Co., Mo.App., 212 S.W. 905; Cox v. Wrinkle, Mo., 267 S.W.2d 648; Cornwell v. Highway Motor Freight Line, 348 Mo. 19, 152 S.W.2d 10. Sec. 510.370, RSMo., V.A.M.S., expressly provides that the trial court may within 30 days, order a new trial of its own motion, specifying the grounds. The present order was made within 30 days after the verdict and judgment. This section is not so much a grant of a power as it is a limitation, for the courts had the same power during the term under out former practice. Schipper v. Brashear Truck Co., Mo., 132 S.W.2d 993, 125 A.L.R. 674.

We are confronted here with two fundamental questions. First, was there any misconduct? Secondly, if there was such, was it prejudicial, considered singly or collectively? And, in determining each of these questions, we may not ignore the discretionary powers of the trial court, and we may reverse only if we consider that such discretion has been abused. Moll v. Pollack, 319 Mo. 744, 8 S.W.2d 38. A statement of facts in the usual sense is not necessary here. We shall refer to sundry trial incidents in the course of this opinion. It would be wholly impossible to discuss all the instances and places in the record which respondent's counsel have listed as establishing some impropriety or misconduct. We shall discuss those phases which seem to have some possible materiality.

We shall first consider assigned ground (a) supra. Highway patrolmen Cameron and Dix testified, the first for plaintiff, and the latter for defendant; their testimony covered generally their respective observations at the scene of the collision, including the positions and conditions of the vehicles, the location of debris and parts of the panel truck, tire marks, and (from Dix) the presence of a long scratch mark on the highway in the shape of an arc. After Trooper Cameron had testified that Trooper Dix made a report of the accident and that he had since seen it, counsel for defendant asked again if he had seen the 'record' since the accident, to which question an objection was sustained; counsel read (over objection) from Cameron's deposition questions and answers which again referred to the accident report; later counsel asked whether the tractor-trailer was described in the report, but an objection was sustained; still later, counsel asked again whether he had seen a 'record' made by either, since the time of the accident, and objection was sustained; subsequently, counsel asked again whether Dix 'made out a report' but on objection, withdrew the question, and the court instructed the jury to disregard it; immediately, however, counsel asked if he, Cameron, had made out any report, which question was answered in the negative. Trooper Dix testified that he made a report and mailed it to headquarters, and that he had since seen a copy; he was then asked 'how many times' he had seen it and counsel for plaintiff objected that the witness could tell the facts personally, but that questions concerning the report were immaterial and were 'leading to inadmissible matter.'

This objection was sustained. However, counsel asked further, and immediately, whether the reports were available to intersted parties and whether such a report was a public record. The witness later referred to his report for the name of defendant's driver. Counsel for defendant also asked Trooper Cameron if the curve just south of the scene of the accident was 'considered practically the same as a straight highway,' so far as 'markings' were concerned, to which question an objection was sustained as calling for a conclusion. There were questions and answers concerning some dual tire marks observed by both patrolmen, and objections were sustained to some of these questions as calling for conclusions. An objection was also sustained to a question asking Dix whether a long arc-shaped scratch which he had observed in the concrete was made by 'wood or stone or metal.'

The patrol report was not offered in evidence, and certainly any conclusions or opinions in it as to the point of impact would not have been admissible. Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242; Pulse v. Jones, Mo., 218 S.W.2d 553; Welch v. McNeely, Mo., 269 S.W.2d 871, 879; 20 Am.Jur., Evidence, Sec. 1027; 32 C.J.S. Evidence Secs. 626, 637. The Uniform Business Records Act, Secs. 490.660-490.690, RSMo., V.A.M.S., eliminates the hearsay objection when such a record is properly qualified thereunder, but it does not make admissible any evidence which would be incompetent if offered in person. Allen v. St. Louis Public Service Co., Mo., 285 S.W.2d 663. Respondent submits that the persistent asking of improper questions, or offering of improper evidence, or display of something not in evidence, constitutes misconduct sufficient for the granting a new trial. 109 A.L.R. 1089, Note; 53 Am. Jur., Trial, Sec. 559, p. 360; 37 A.L.R.2d 662; Maurizi v. Western Coal & Mining Co., 321 Mo. 378, 11 S.W.2d 268; McClendon v. Bank of Advance, 188 Mo.App. 417, 174 S.W. 203; Levels v. St. Louis & H. R. Co., 196 Mo. 606, 94 S.W. 275. In certain cases this is true, and the theory is that such acts constitute a willful attempt to present improper matters to the jury, or to create significant and improper inferences, or to force one's opponent to be placed in the light of suppressing facts by his objections. In each such case the final question is whether the conduct substantially influenced the verdict, despite the action taken at the time by the court, in sustaining objections or otherwise. If every case in which improper questions were asked was reversed, few verdicts would stand. Hollenbeck v. Missouri Pacific Railroad Company, 141 Mo. 97, 106, 38 S.W. 723, 41 S.W....