Schuette v. St. Louis Transit Co.

• Decision Date: 18 October 1904
• Citation: 108 Mo. App. 21,82 S.W. 541
• Parties: SCHUETTE v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

82 S.W. 541

108 Mo. App. 21

SCHUETTE v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

October 18, 1904.

NEW TRIAL—MATTERS NOT EXCEPTED TO AT TRIAL.

1. Rev. St. 1889, § 2302, providing that no exceptions shall be taken in an appeal to any proceedings in the trial court, except such as shall have been expressly decided by such court, does not prevent the trial court, in its discretion, from granting a new trial for improper argument to which no objection was made at the time thereof.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Frank Schuette, by his next friend, William Tropp, against St. Louis Transit Company. From an order granting defendant a new trial, plaintiff appeals. Affirmed.

E. E. Wood, for appellant. Boyle, Priest & Lehmann, for respondent.

BLAND, P. J.

Plaintiff is a minor 17 years of age, and sues by his next friend. The evidence shows that on the 2d day of August, 1903, plaintiff undertook to board one of defendant's cars (traveling south on Nineteenth street) at the corner of Nineteenth and Mallinckrodt streets, in the city of St. Louis, for the purpose of going to Forest Park Highlands. The car did not stop at the corner of Nineteenth and Mallinckrodt streets, the usual stopping place for passengers to get on and off, but stopped at Garden street, one-half block south of Mallinckrodt. Plaintiff followed the car to Garden street, and got on the second step of the rear platform, when, according to his evidence, corroborated by the evidence of several bystanders, the conductor of the car pushed plaintiff off with such force and violence as to throw him prostrate in the street. The force of the fall was so great as to fracture his left arm in two places. After a temporary dressing of the injury by Dr. Schiermann, plaintiff was sent to the City Hospital for treatment. About the 1st day of September following the injury he was treated by Dr. Wilbur H. Wilson, who stated that, on account of malpractice, the broken bones of the arm had lapped one over the other, causing a curvature of the arm, and that its use was greatly and permanently impaired. The suit is to recover for these injuries. The jury found for plaintiff, and assessed his damages at $1,500. On motion of defendant the court set aside the verdict and granted a new trial. The plaintiff appealed from this order.

The motion for new trial, in addition to many other assignments, called the attention of the court to the argument of plaintiff's counsel to the jury, setting out the language used by counsel in his closing argument, which it is claimed was improper, and prejudiced the jury against the defendant. The order granting the new trial is as follows: "The court, having considered the motion of defendant for a new trial, doth sustain the same, because of improper conduct of plaintiff's counsel in his argument to the jury." Counsel were restricted to 10 minutes on a side in which to argue the case to the jury. Counsel for plaintiff used language in his closing argument, which, it seems to us, was calculated to prejudice the jury and inflame their passions against the defendant. The following extract from his closing argument we think is especially objectionable: "Now, counsel speaks of a lawyer getting into the hospital with a crowbar. Gentlemen, he has made that charge against me, and it has been well known that lawyers, when they have no defense to their case, always try to prejudice the jury against the lawyer on the other side. If they have no case to talk about, they talk about the lawyer. Gentlemen, they make this charge against me, and I am glad to have the charge made against me for doing the services I have in this case by such a defendant. I will tell you, gentlemen, it takes the pot to call the kettle black. I tell you I am glad to have them bring this up in this way, because, gentlemen, if I never have anything worse to answer on the last day than the fact that I...