Samborski v. Price, 24601

• Court: Missouri Court of Appeals
• Writing for the Court: BLAIR
• Citation: Samborski v. Price, 417 S.W.2d 205 (Mo. App. 1967)
• Decision Date: 19 June 1967
• Docket Number: No. 24601,24601
• Parties: Emil SAMBORSKI, Plaintiff-Respondent, v. Nelson PRICE, Defendant-Appellant.

Page 205

417 S.W.2d 205

Emil SAMBORSKI, Plaintiff-Respondent, v. Nelson PRICE, Defendant-Appellant.

No. 24601.

Kansas City Court of Appeals, Missouri.

June 19, 1967.

Albert J. Yonke, Kansas City, for appellant.

Hutson & Van Horn, Don Hutson, Kansas City, for respondent.

BLAIR, Judge.

Assault and battery. Emil Samborski sued Nelson Price for striking him in the face with his fist and injuring him and prayed for $1,000.00 actual damages and $5,000.00 punitive damages. The trial was to a jury and the result was a verdict and judgment for $500.00 actual damages and $2,500.00 punitive damages. Price appeals.

The sufficiency of the evidence to support the verdict and judgment stands unquestioned and a brief statement of the facts leading to the occurrence will suffice. Price was a business representative of a union of which Samborski was a member in good standing. Samborski attempted over a long period of time to obtain work through the union and failed. His financial circumstances were at a low ebb and he sought and found work on his own. Several days after he began this work he was accosted on the job by Price who reprimanded him for obtaining work on his own and not through the union. Samborski defended his action on the ground that the union had not obtained work for him and that he had a family he had to support. As the saying goes, one word led to another and Price struck Samborski in the face with his fist. Samborski presented evidence of various serious consequences of this blow, among which was a concussion that caused him to have severe headaches for a long period of time.

A single question is presented by Price on this appeal. His point relied on is that the trial court erred 'in Permitting Plaintiff's Counsel, in His Final Argument, to Argue the Element of Punitive Damages When That Element Had Not Been Argued in Plaintiff's Opening of the Final Argument and Had Not Been Mentioned in Defendant's Argument, for the Reason That It Was Highly Prejudicial and Defendant Was Denied the Opportunity of Arguing That Plaintiff Was Not Entitled to Punitive Damages.' The allegation of error in his motion for a new trial is identical in all legal substance.

The fault of Price's contention is that it simply cannot withstand comparison with the record. After outlining in his opening statement the facts on which Samborski relied to obtain a verdict and judgment for $1,000.00 actual damages and $5,000.00 punitive damages, his counsel then said 'It is on the basis of these facts that he complains. A man doing his job, struck in the face, injured thereby, and now he must come to court and seek from you the justice he requires. This will be the case for the plaintiff. He seeks by way of compensatory or actual damages the sum of $1,000.00 for the blow, the bills, the pain, the hurt, the interference with his normal activities. He seeks by way of what are known as punitive damages for the fact it was a wrongful act, the fact that a man has a right to enjoy his job, his work, peacefully without being interfered with by some one who comes in and unlawfully strikes him, the sum of $5,000.00, and the plaintiff is ready to present his evidence to you.'

In his opening argument, Samborski's counsel first fully argued actual damages and then argued at length the reasons he believed the evidence justified an award of punitive damages. He did not restate the amount of $5,000.00 he had clearly told the jury in his opening statement that Samborski was seeking and he said nothing indicating that he had receded from the $5,000.00 figure. He stated no amount. In his argument, Price's counsel also argued punitive damages. He did not mention any amount, but he said 'Now, they talk about tactics, that you should bring in a verdict, to warn Mr. Price that he shouldn't hit anybody, and make an example, and so forth. Now, the reverse is true.' Obviously directing his argument to both actual and punitive damages, he immediately followed these statements by arguing that Price did not strike Samborski and, even if the jury should find he did, the blow was a trifling one provoked by Samborski causing him no injury and entitling him to no damages at all. In his closing argument Samborski' counsel again argued actual damages and then said 'Now, as to the matter of punitive damages. The union movement--'. for Price objected on the ground Counsel for Price objected on the ground in the opening part of the argument, and was not mentioned in the defendant's argument, and I submit it is improper for him to argue damages at this point.' (Emphasis supplied) This objection was overruled. Counsel for Samborski then reargued the reasons he believed the evidence justified an award of punitive damages and then in a single sentence stated 'And as I told you in the beginning of this case, he seeks (punitive) damages in the amount of $5,000.00.' Counsel for Price took no action at the time this statement of the amount was made. He did not enter an objection or ask that it be stricken or that the jury disregard it or that counsel for Samborski be reprimanded.

On this record it must be manifest that Price's contention in this court that Samborski's counsel did not argue for an award of punitive damages in his opening argument is baseless. Just as baseless is his argument that his own counsel did not argue against an award of punitive damages. Therefore Samborski's counsel had the right to argue for punitive damages in his closing argument as he had done in his opening argument. Sullivan v. Hanley, Mo.App., 347 S.W.2d 710, 716.

Although neither Price's motion for new trial nor his point relied on, which last we have quoted verbatim, complains that Samborski's counsel mentioned the amount of $5,000.00 claimed as punitive damages only in his closing argument, the argument in his brief is devoted to demonstrating that mentioning that amount in the closing argument was prejudicial and reversible error. Civil Rule 79.03, V.A.M.R. provides that allegations of error, in order to be preserved for appellate review, except questions enumerated in the rule and not relevant here, must be presented to the trial court in a motion for a new trial. This rule is mandatory. Gosnell v. Gosnell, Mo.App., 329 S.W.2d 230; C & O Distributing Co. v. Milner Hotels, Inc., Mo.App., 305 S.W.2d 737. Civil Rule 83.05 provides that the brief for appellant shall contain 'The points relied on, which shall show what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, * * *.' This rule is not merely technical and appellate courts should enforce it except when cogent reasons of justice warrant waiving noncompliance. No such reasons are present in this record. Browning v. City of Poplar Bluff, Mo.App., 370 S.W.2d 179. Reading his motion for a new trial and his point relied on, we believe no one would conclude that his real complaint is that the amount claimed for punitive damages was not mentioned in the opening argument but was allowed to be mentioned in the closing argument. For these reasons alone we will not disturb this judgment.

There are other reasons for an affirmance. Even if we were to consider Price's motion for a new trial and his point relied on as sufficient, the...