Shields v, American Car & Foundry Co.

• Decision Date: 21 February 1927
• Docket Number: No. 19675.,19675.
• Citation: 293 S.W. 77
• Parties: SHIELDS v. AMERICAN CAR & FOUNDRY
• Court: Missouri Court of Appeals

293 S.W. 77

SHIELDS v. AMERICAN CAR & FOUNDRY

No. 19675.

St. Louis Court of Appeals. Missouri.

February 21, 1927.

Appeal from St. Louis Circuit Court; Hogan, Judge.

"Not to be officially published."

Action by George Shields against the American Car & foundry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Watts & Gentry, Arnot L. Sheppard, and James H. Linton, all of St. Louis (G. A. Orth, of New York City, of counsel), for appellant.

Fred Berthold, Harry J. Paul, Mark D. Eagleton, and Harry S. Rooks, all of St. Louis, for respondent.

BDCKER, J.

Plaintiff, in an action for personal injuries alleged to have been sustained while in the employ of defendant, obtained a judgment against defendant in the sum of $2,000. Defendant appeals.

The only assignment of error is that the trial court erred in refusing to discharge the jury because of prejudicial remarks by plaintiff's counsel in his argument to the jury.

Defendant's motion for new trial, among others, assigns the following aground therefor:

"(15) The court erred in failing to rebuke counsel for plaintiff and to discharge the jury upon motion and request of defendant, when, during the argument of the cause, the following occurred:

"`Mr. Berthold: I ask you, gentlemen, to remember, too, that Mr. Linton, when I put him on the stand, the time before Mr. Sheppard made his objection, said that Dr. Schlueter was in this court room this morning; that he made an examination of him—

"`Mr. Sheppard: We object to the statement that Mr. Linton admitted this morning that Dr. Schlueter was in the court room as being highly prejudicial to the defendant's rights. The plaintiff had the same right and opportunity to subpœna Dr. Schlueter as the defendant did. The courts have held that, under the law, where plaintiff is examined under the circumstances shown in this case, there is no more obligation on the part of the defendant to place the physician on the stand than there is on the part of the plaintiff, and we ask that counsel be re- buked for making that statement.

"`The Court: Confine yourself to the evidence.

"Mr. Berthold: We except to the failure of the court to rebuke counsel.'

"After the close of arguments, the following occurred:

"`Mr. Linton: I move that the jury be discharged for prejudicial remarks made during the argument of counsel.

The Court: Overruled.

"`Mr. Linton: We except to the ruling of the court for failure to discharge the jury for prejudicial remarks of counsel for plaintiff during the argument.'"

The facts which are pertinent to the question before us, as we glean them from the record, are that the defendant, with the consent of counsel for plaintiff, had Dr. Robert E. Schlueter make an examination of plaintiff, and that Dr. Schlueter had been subpœnæd as a witness for defendant.

It is conceded that Dr. Schlueter had not been appointed by the court to make the examination of plaintiff upon motion of the defendant.

During the course of the trial, plaintiff, in rebuttal, placed Joseph H. Linton, one of the attorneys for the defendant, upon the stand. He was asked the question:

"Mr. Linton, I believe that at your request, and with our consent, you had Dr. Robert E, Schlueter make an examination of this plaintiff on December 5, 1925?"

To which witness answered:

"I don't believe I was handling it, but I think that was done; yes, sir."

Then he was asked:

"I will ask you if Dr. Robert E. Schlueter was not in the court room this morning at 11 o'clock?"

To which objection was made on the ground that the question was utterly immaterial.

During the colloquy that ensued between Counsel and the court, the court asked whether Dr. Schlueter was under subpoena. Counsel for plaintiff replied that he had not subpoenaed him. Thereupon the court asked, "Is he under subpoena from either side?" to which one of counsel for defendant answeted, "I think so." The result of the colloquy was that the witness was excused without answering the question, to which objection was leveled.

With the record facts before us, as we have set them out above, we have carefully considered the criticized part of the argument of plaintiff's counsel, and, in light of the authorities, have come to the conclusion that we cannot rule that the court erred in refusing to discharge the jury therefor. We note, in the first place, that when counsel for the defendant objected to the statement of plaintiff's attorney, during his argument to the jury, he merely asked, "that counsel be rebuked for making this statement," and, upon the court admonishing counsel for plaintiff to confine himself to the evidence, counsel for defendant then merely excepted. "to the failure of the court to rebuke counsel." No request was made at that time to have the jury discharged. Only after the conclusion of all of the arguments, and after the jury had retired to consider their verdict, did counsel move that the jury be discharged for prejudicial remarks made during the argument of counsel. In our view, the request to discharge the jury was not timely. It should have been made at...