Scully v. Rolwing

• Decision Date: 05 April 1938
• Docket Number: No. 24456.,24456.
• Citation: Scully v. Rolwing, 115 S.W.2d 96 (Mo. App. 1938)
• Parties: SCULLY v. ROLWING.
• Court: Missouri Court of Appeals

115 S.W.2d 96

SCULLY v.ROLWING.

No. 24456.

St. Louis Court of Appeals. Missouri.

April 5, 1938.

Appeal from Court of Common Pleas, Cape Girardeau County; L. L. Bowman, Judge.

"Not to be published in State Reports."

Action by Dave Stout against Ben Rolwing for injuries sustained in an automobile accident, wherein the cause was revived in the name of Mark Scully, administrator, on plaintiff's death pending a prior appeal.From a judgment, Mark Scully, administrator of the estate of Dave Stout, deceased, appeals.

Affirmed.

Ashby & Banta, of Charleston, for appellant.

Dearmont, Spradling & Dalton, of Cape Girardeau, and J. M. Haw, of Charleston, for respondent.

HOSTETTER, Presiding Judge.

This suit, originating in the circuit court of Mississippi county, was brought by Dave Stout as plaintiff, to recover damages for personal injuries sustained by being struck by defendant's automobile.The venue was changed to the Cape Girardeau court of common pleas, in Cape Girardeau county, and the case was there tried three times.

The first trial resulted in a verdict for plaintiff, which was set aside on account of error being confessed by plaintiff.

The second trial resulted also in a verdict and judgment in favor of the plaintiff, from which judgment an appeal was taken by the defendant to this court.While the appeal was pending in this court, the plaintiff died, and the cause was revived in the name of Mark Scully as administrator, and in an opinion of this court, under the title of Sculley v. Rolwing, reported in 88 S.W.2d 394, the judgment was reversed and the cause remanded for a new trial.

The third trial was had in the court below and resulted in a verdict for plaintiff for $200, and from the judgment rendered thereon, the plaintiff administrator duly perfected his appeal to this court, and seeks a reversal on three grounds, viz.:

1.That the court erred in failing to discharge the jury at the request of plaintiff because of the remark made by defendant's counsel in presence of jury that plaintiff's attorney had commented too loudly and too strongly and the case was reversed because the court failed to reprimand counsel for plaintiff.

2.That the court erred in allowing defendant to read transcript of testimony of Dr. A. H. Marshall and Dr. W. S. Love, defendant having subpoenaed said witnesses, and not having given plaintiff notice a reasonable time before the date of trial, that he intended to read the testimony of Doctors A. H. Marshall and W. S. Love.

3.That the damages assessed by the jury are inadequate.

The amended petition, on which the case was tried, sets up the antecedent facts of the case, and describes the injuries which Dave Stout, deceased, received in a collision with the defendant's automobile, alleging that the accident occurred in Franklin Street in the city of Charleston, by reason of the defendant driving his car on the wrong side of the street, and striking Stout and injuring him, and, after describing the nature of the injuries, the petition contains this clause: "Plaintiff further states that the injuries so sustained by the said Dave Stout were serious and permanent but did not cause or contribute to cause his death aforesaid."

The first assignment of error is based on a colloquy between counsel on opposing sides in which the court participated, which is as follows:

"Mr. Spradling: We ask that Mr. Ashby refrain from making comments here.

"Court: Any comments that you want to make to the Court, make them out of the hearing of the jury.This case was reversed because I didn't call the attorneys down.

"Mr. Spradling: He commented too loudly and too strongly and the case was reversed because the Court failed to reprimand counsel for plaintiff.

"Mr. Ashby: I want to object to that statement by Mr. Spradling at this time in front of the jury and I ask the stenographer to get into the record what he said to this jury at that time.

"Mr. Spradling: I will withdraw the statement.

"Court: He is withdrawing the statement and is willing to apologize.Let's disregard statements made by counsel and Court concerning this controversy here.

"Mr. Ashby: I want the stenographer to get the statement made here by Mr. Spradling.

"Mr. Spradling: Mr. Ashby, do you want the jury discharged on account of the comments I made here?

"Mr. Ashby: Let me think about that.(Consults with Mr. Banta.)We are asking at this time that counsel for defendant be reprimanded for his statement to the jury and that this jury be discharged at this time.

"Mr. Spradling: We concede that the jury may be discharged, if the Court please.

"Court: Court will overrule the request and overrule the consent.Proceed with the trial.

"Mr. Spradling: I would like for the record to show that we join Mr. Ashby in asking that this jury be discharged.

"Court: Request by both parties that the jury be discharged is overruled."

We fail to discern anything either harmful or calculated to have any malign influence on the minds of the jurors in this colloquy.It had more the appearance of good natured badinage in which the court itself took a part, by accusing himself of tender remissness in the former trial in failing to "call the attorneys down," which is usually pleasing to spectators and jurors.The jurors could not learn anything about the merits of the former trial, nor did the entire colloquy disclose any leaning of the trial judge in favor of either side.

The trial court saw nothing in the incident which would tend to bias the minds of the jurors and we think very properly refused to discharge the jury.Counsel for plaintiff did not deem the incident of sufficient importance at the time to save exceptions to the action of the court in refusing the double-barreled request to discharge the jury.It follows, therefore, that this assignment of error is not properly before us.

The use by the defendant of the testimony of Dr. A. H. Marshall and Dr. W. S. Love as preserved in the bill of exceptions in the former trial, without having given plaintiff a reasonable notice of such intention so to do, is assigned as error.

Section 1714, R.S.Mo.1929, Mo.St.Ann. § 1714, p. 3988, reads as follows: "Whenever any competent evidence shall have been preserved in any bill of exceptions in a cause, the same may be thereafter used in the same manner and with like effect as if such testimony had been preserved in a deposition in said cause, but the party against whom such testimony of any witness may be used shall be permitted to prove any matters contradictory thereof as though such witness were present and testifying in person."

Section 1780, R.S.Mo.1929, Mo.St.Ann. § 1780, p. 4037, provides the conditions under which a deposition, regular in all respects, may be read and used...