Rytersky v. O'Brine

• Decision Date: 19 April 1934
• Docket Number: 31545
• Parties: Catherine Rytersky v. Oliver O'Brine, Appellant
• Court: Missouri Supreme Court

70 S.W.2d 538

335 Mo. 22

Catherine Rytersky v. Oliver O'Brine, Appellant

No. 31545

Supreme Court of Missouri

April 19, 1934

Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge.

Reversed and remanded.

Green Henry & Remmers for appellant.

(1) The court erred in giving to the jury, at the request of plaintiff, Instruction 1. An instruction on the humanitarian doctrine, reciting in substance that if plaintiff was struck by an automobile, and if "at" or prior to the time of being struck the plaintiff became and was in a position of imminent peril of being struck by the automobile, in time for the defendant "thereafter" by the exercise of the highest degree of care, to have stopped his automobile and thereby have avoided striking plaintiff and the defendant failed to do so, then the verdict should be in plaintiff's favor, is an erroneous instruction and has been expressly condemned. Williams v. St. Louis Pub Serv. Co., 54 S.W.2d 766. (2) The argument made by plaintiff's counsel, in which he promised the jury that if a verdict was returned in favor of the plaintiff for the full amount sued for, or for any other amount, that defendant personally would not have to pay a nickel thereof, but that same would be collected from the insurance company, was highly improper and prejudicial, and the court should have declared a mistrial because of such improper argument. Barnes v. St. Joseph, 123 S.W. 541, 139 Mo.App. 545; O'Hara v. Lamb Const. Co., 197 S.W. 163; Jackman v. Ry. Co., 206 S.W. 244; Torreyson v United Rys. Co., 144 Mo.App. 626, 129 S.W. 409; Moore v. Ry. Co., 268 Mo. 31; Anderson v. Sutton, 293 S.W. 770, 316 Mo. 1058; Monroe v. Ry. Co., 249 S.W. 644, 297 Mo. 633; Olian v. Olian, 59 S.W.2d 678. (3) The amount of damages assessed by the jury and the amount of the judgment, even after voluntary remittitur, are grossly excessive. Olian v. Olian, 59 S.W.2d 678.

Everett Hullverson and Staunton E. Boudreau for respondent.

(1) In no case has plaintiff's Instruction 1 been condemned. Williams v. St. Louis Pub. Serv. Co., 54 S.W.2d 766. (a) Plaintiff's Instruction 1 was proper. Oldham v. Standard Oil Co., 15 S.W.2d 900; Mott v. Kansas City, 60 S.W.2d 741; Bales v. Hendrickson, 290 S.W. 641; Welty v. S. H. Kress & Co., 221 Mo.App. 1089, 295 S.W. 503; Anderson v. Voeltz, 206 S.W. 585; Taylor et ux v. Scherpe & Koken Architectural Iron Co., 133 Mo. 365, 34 S.W. 581; Schultz v. Schultz, 316 Mo. 742, 293 S.W. 105; McDonald v. K. C. Gas Co., 59 S.W.2d 40; Gibler v. Terminal Railroad Assn., 203 Mo. 208, 101 S.W. 37; Sitts v. Daniel, 284 S.W. 862. (2) Plaintiff's argument was proper. (a) The supervision of the arguments of counsel is within the discretion of the trial court and is not subject to review in the absence of abuse, especially where, as in this case, only a fragment of the argument appears in the record. Bobos v. Krey Packing Co., 19 S.W.2d 633; Huckshold v. Ry. Co., 90 Mo. 559, 2 S.W. 794; Wendler v. People's House Furnishing Co., 162 Mo. 542, 65 S.W. 737; Baird v. Larabee Flour Mills Corp., 203 Mo.App. 444, 220 S.W. 988; Davis v. Quermann, 22 S.W.2d 58. (b) Plaintiff's counsel was not guilty of improper argument and the court did not err in refusing to declare a mistrial on account of plaintiff's allegedly improper argument. Under the circumstances of the record in the case, the argument of plaintiff's counsel was the appropriate and proper offset to the misleading opening statement of counsel for defendant; the reply was courted and invited. Clayton v. Wells, 26 S.W.2d 971; Sullivan v. Ry. Co., 12 S.W.2d 740; Nelson v. Heine Boiler Co., 20 S.W.2d 911; Gilday v. Smith Bros., Inc., 50 S.W.2d 193; Burston v. Fennewald, 2 S.W.2d 824. (c) If the argument of counsel for plaintiff were prejudicial and had not been provoked and invited by counsel for defendant, this court would not review the action of the trial court in refusing to declare a mistrial, for the counsel for plaintiff did not after objection, continue to make or persevere in the statement complained of. Sidekum v. Ry. Co., 93 Mo. 407, 4 S.W. 701. (3) Appellant's fourth assignment of error, wherein it is charged the verdict was excessive, is not here for consideration. Shanahan v. St. Louis, 212 S.W. 852; Sanders v. Owens, 47 S.W.2d 133; O'Connell v. Kansas City, 58 S.W.2d 804. (4) This court will not review on the ground of excessiveness a judgment approved by the trial court unless the judgment goes unmistakably beyond the bounds of reason or is grossly excessive. O'Donnell v. Railroad Co., 26 S.W.2d 929; Capstick v. T. M. Sayman Products Co., 327 Mo. 16, 34 S.W.2d 480; Foulks v. Lehman, 17 S.W.2d 994; Erxleben v. Kaster, 21 S.W.2d 195; Grodsky v. Consol. Bag Co., 26 S.W.2d 618; Broughton v. S. S. Kresge Co., 26 S.W.2d 838. (5) The verdict as reduced by plaintiff's voluntary remittitur, is reasonable and not excessive. Keehn v. Realty & Inv. Co., 43 S.W.2d 416.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

The defendant appeals from a judgment against him in a personal injury action for damages resulting to plaintiff from being struck by an automobile driven by the defendant. Plaintiff had just alighted from a street car on Broadway, in St. Louis, and was attempting to reach the sidewalk when struck and injured. The petition alleges several grounds of negligence on defendant's part, but the case went to the jury solely on a violation of the humanitarian rule in that the defendant could and should, with due care, have seen the plaintiff in a position of imminent peril in time, by using the means at hand, to have avoided striking her. The jury found this to be true and returned a verdict for plaintiff.

The defendant assigns error in that plaintiff's instruction submitting the case on the humanitarian rule is erroneous; that the verdict is grossly excessive, and that the plaintiff's attorney was guilty of making an improper argument to the jury.

We have considered but need not comment at length on the alleged error in plaintiff's principal instruction submitting the case on the humanitarian doctrine. It is the same error that is commented on in Williams v. St. Louis Public Service Co. (Mo. App.), 54 S.W.2d 764, except that the jury was told in this case that if plaintiff was in a position of peril "at and prior," instead of "at or prior," as in the Williams case, to the time she was injured and thereafter defendant could by reasonable care have averted the injury, to find for plaintiff. Perhaps the wording of the instruction in the present case is less confusing than in the Williams case, and we doubt very much if the jury was misled by it. The instruction, if read literally, is inaccurate as it is obvious that on a finding that the plaintiff was seen in peril at the moment of the injury, the defendant could not thereafter avoid injuring her, but, such meaning being obviously impossible the jury would not likely understand it that way. As a new trial must be granted on another ground, it would be better on another trial to so draw the instruction as to avoid this criticism.

The charge of improper and prejudicial argument to the jury by plaintiff's attorney rests on these facts: When the jury was called plaintiff's attorney inquired of defendant's attorney if a certain named insurance company was interested in the outcome of the case as an insurer of defendant against damages, as plaintiff desired to interrogate the jury as to whether any juror was in any way interested in such or any like insurance company. Defendant's attorney assented and plaintiff's attorney was permitted to inquire fully as to such matters. No prospective juror was found to have any connection with or interest in such company or even any acquaintance with anybody connected with such company. The defendant's attorney then said to the jury:

"There has been some reference to the Commonwealth Casualty and Insurance Company. I want to be absolutely frank with you gentlemen about that feature of the case. To a limited extent, I represent the Commonwealth Casualty Company. That is, Mr. O'Brine had an insurance policy in the Commonwealth Casualty Company to a certain limit, providing that this company would indemnify him against loss sustained by reason of his negligence in the operation of his automobile. Of course, if there is no negligence on his part, then, of course, there is no liability on the part of the insurance company. In other words, the rule of law is not changed just because there is an insurance company interested to a limited extent. Now, would the fact that he does carry insurance to a limited degree, as I have indicated, cause you gentlemen to have any feeling of prejudice in favor of the plaintiff? . . . If not, I would appreciate it if you would advise me. I have been frank with you gentlemen, and I would like for you to be just as frank with me. Now, you all feel you can fairly and impartially try this case, do you? All right. That's all."

Being satisfied with the information obtained, the parties then struck off jurors to the number allowed by statute and the trial proceeded. Very properly, no further mention was made of the subject of insurance till the trial closed and the argument of the attorneys to the jury was commenced. Of course, the court's instructions to the jury made no mention of any such matter. In the course of the argument of plaintiff's attorney to the jury, he said:

"Now, gentlemen, I don't want you to say to yourselves, 'Well, if we give her the amount she sued for something might happen to it and she won't get the money.' Well, please don't get that idea in mind. You compensate her. Don't worry about what is going to happen to this judgment. My friend says there is insurance to a limited amount here. Well, I will...