Snell v. Overfelt, 29769
| Decision Date | 03 December 1957 |
| Docket Number | No. 29769,29769 |
| Citation | 307 S.W.2d 716 |
| Parties | Gene SNELL (Plaintiff), Appellant, v. William OVERFELT and Railway Express Agency, Inc., a Corporation (Defendants), Respondents. |
| Court | Missouri Court of Appeals |
Roy Hamlin, White & Partee, Hannibal, Myrl Sternke, Palmyra, for appellant.
Carstarphen & Harvey, Ely & Hibbard, Hannibal, for respondents.
DEW, Special Commissioner.
The appellant brought this action to recover damages for personal injuries which he claimed to have sustained when he fell into a grease pit in a filling station at Paris, Missouri. On charge of venue the case was sent to Marion County. Appellant recovered a verdict for $6,000 against the respondents. Upon the motions of both respondents the trial court granted them a new trial on one of the grounds assigned by them, to-wit: prejudicial closing argument of the appellant's counsel. The appellant has appealed from the order of the court granting a new trial.
The petition, in substance, pleaded ownership, management and control of the filling station on the part of the respondent Overfelt, his capacity as agent for respondent American Express Agency, Inc., the generally unclean and unsafe conditions of the premises before and at the time of appellant's fall; the use of the station by the appellant at the invitation of the respondents for delivery of cans of cream to respondent American Express Agency; and the manner in which appellant, as such invitee, slipped and fell into the unguarded grease pit in the station as he was removing his empty cans from where they had been placed by respondents. The negligence alleged was the failure of respondents to keep the premises clean and safe for persons doing business with them, and their failure to guard or barricade the grease pits for the protection of such persons, particularly the appellant.
The answers of the respondents denied the charges of negligence, denied the relationship of principal and agent between them and pleaded contributory negligence.
Among the circumstances pertinent to this appeal is the fact that at the trial there appeared for one respondent, two members of one law firm, for the other respondent two members of another firm, and three attorneys representing the appellant.
According to the evidence adduced by the appellant he was at the time of his fall engaged with his brother and their wives in the operation of a dairy farm owned by them, consisting of 740 acres, from which they marketed the milk of 20 cows. The filling station, located on a street in Paris, Missouri, was owned by respondent Overfelt. It faced east, and the portion of the building south of the office was walled off and used for the greasing and servicing of automobiles. It contained a basement of lower floor level reached by stairs or steps. Two wooden platforms were placed there, one under each of two openings or pits in the ceiling above. The platforms were of sufficient height and size to permit men to stand on them and to work on the under side of automobiles in greasing or servicing jobs. The openings or pits were each about 3 1/2 feet wide and less than an ordinary automobile in length. On the main or street level floor there were two entrance doors, one to each of these grease pits. Around the two sides of each pit were concrete tracks upon which to run a car over the opening. A concrete stop prevented the cars from proceeding too far. On the street level and between the two pits a walkway or platform of smooth concrete, about four feet wide, extended to the rear or west and of the building. This walkway or platform was 'greasy, slick and slimy.'
The appellant's evidence further tended to prove that before and at the time in question, the respondents had an operating agreement or arrangement between themselves under which the respondent Overfelt received at his filling station shipments of merchandise for respondent American Express Agency, including appellant's shipments of cream. It was a custom of the respondents to place the appellant's empty cream cans at the rear of the pits and on the street level floor, back of an old oil reservoir stored there. On the day of his fall, at about 11:00 o'clock A.M., appellant entered the door to the north grease pit and walked to the rear or west end on the walkway between the pits, and as he was in the act of lifting or pulling two of his empty cream cans from their places, as described, and starting to turn toward the front of the station, he slipped and fell into the north grease pit. He testified that he did not stumble over any article on the walkway, but after getting out of the pit he noticed a spot of grease on the walkway. he fell to the wooden platform below, landing on his head and right shoulder, and sustained the serious injuries and damages of which he complains. Appellant called the attendant in charge, who helped him out of the pit and directed him to a doctor, who took him to a hospital at Moberly.
Appellant had sustained a lineal fracture of a bond of the right shoulder, a numbness of his right arm, other injuries claimed to be permanent, and other damages. After staying at the hospital about two weeks, appellant wore a shoulder cast for about thirty days. Because of his injuries, he and his brother sold their farm and bought a farm implement business. He can do work that does not require heavy lifting, but still suffers from some of his injuries.
The defense produced evidence to the effect that the appellant was thoroughly familiar with the place of the accident, having frequently obtained his empty cans from the same place; that when he approached there on the day he fell, he could and did see everything that was to be seen on the walkway, and that it was at the time clean and safe for use; that the appellant carelessly lifted out the two cans while turning around, and negligently fell into the north grease pit. For the purposes of this appeal, further detail of the evidence is unnecessary.
Following the verdict, both respondents filed motions for judgment in accordance with their motions therefor at the close of all the evidence, and their alternative motions for a new trial on several grounds, including, as stated, prejudicial closing argument of appellant's counsel, on which point alone the court granted respondents a new trial.
The charge in the motions pertaining to the prejudicial argument was, in substance, that the court failed to restrain, and by its ruling encouraged appellant's counsel in his closing argument, in commenting on matters not in evidence, and the use of immaterial and prejudicial matter, consisting of repeated characterization of appellant as 'a human being,' this 'country boy,' a 'farmer' and contrasting him with respondent American Express Agency, which he called 'a big Railway Express Company, a corporation in the State of Delaware'; referring to counsel for respondents as the 'largest array of lawyers ever gathered in Marion County'; referring to the conduct of respondents' witness as 'inhuman'; and otherwise appealing to the jury to decide the case on extraneous, immaterial and prejudicial grounds.
Appellant's counsel, in his closing argument, first complained to the jury of delay on respondents' part in taking appellant's deposition, which had been used without objection in the case; the failure of the respondent Overfelt 'to show up' for his deposition (over the objection of respondents); appellant's long wait it the office of respondents' physician to be examined at respondents' request (not borne out by the evidence); described the appellant as a 'country boy,' who had served in the United States army, was running a dairy farm with his brother, milking cows and delivering cream. Counsel said that he was glad that a Marion County jury would try the case of a Monroe County 'country boy.' Referring to respondents' counsel, he said: At this point the following occurred:
'Mr. Ely (respondents' counsel) We object to that as improper argument, and call for a reprimand.
The Court: Overruled. The Court will allow the attorneys wide latitude.
'Mr. Hamlin: (continuing) In other words, gentlemen, what I am trying to tell you is this: I am representing a human being, a country boy off of a farm over here in Monroe County; that boy sitting there, yet this Railway Express Company, these two distinguished lawyers sitting here, not wanting to pay this boy anything, this country boy and farmer.'
Counsel, continuing his closing argument, referred to the attendant at the station, who also did some janitor work for a local bank, and had been a deputy sheriff, as a 'scrubber' and as an 'ex-policeman,' and criticized him for denying the extent to which he assisted appellant after the fall, calling it inhuman to have refused such assistance, saying that people who would refuse the same are 'not fit to be believed.' Counsel said that: 'My client, a country boy, the milking farmer,' had a skinned place on his head and a shoulder bandaged so he could not use his arm. Reviewing appellant's injuries, counsel said: He said the respondent had more lawyers present than witnesses, trying to keep 'this country boy' from recovering for his injuries; that he didn't understand the cause for all the lawyers for the 'big Railway Corporation' and for the other defendant, nor 'what is back of it that causes all this trafficking over here at this table.'
At the close of the argument of the motions for new trial the Court remarked:
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