Southwick v. Gooch

• Decision Date: 13 June 1924
• Docket Number: No. 18519.,18519.
• Citation: 263 S.W. 490
• Parties: SOUTHWICK v. GOOCH.
• Court: Missouri Court of Appeals

263 S.W. 490

SOUTHWICK v. GOOCH.

No. 18519.

St. Louis Court of Appeals. Missouri.

June 13, 1924.

Appeal from Circuit Court, Pike County; E. B. Woolfolk, Judge.

"Not to be officially published."

Action by Pauline Southwick against C. L. Gooch. From an order granting a new trial, defendant appeals. Affirmed.

Ras Pearson, of Louisiana, Mo., and Hostetter & Haley, of Bowling Green, for appellant. T. B. McGinnis, of Bowling Green, F. D. Wilkins, of Louisiana, Mo., and V. S. Smith, of Bowling Green, for respondent.

BECKER, J.

This is an appeal from the action of the trial court in sustaining plaintiff's motion for a new trial on the sole ground of remarks made by the court during the progress of the trial, which plaintiff in her motion for a new trial urged were prejudicial.

Plaintiff sued to recover damages for injuries alleged to have been sustained by her in the month of October, 1921, by having been run into by an automobile owned by the defendant. The ownership of the automobile in question was a contested issue in the case below. Defendant's defense was that he was not the owner of the car, but that it belonged to his daughter, Alpha Gooch, who was in fact driving the car at the time in question.

During the progress of the trial defendant offered in evidence two certificates of ownership of the automobile in question issued by the Secretary of State, one certificate for the year 1921, which was issued to Ray Gooch, and the other certificate for the year 1922 was issued to the said Alpha Gooch. After the introduction of said certificates the following discussion occurred between court and counsel in the presenee of the jury:

"Mr. Ras Pearson: I now offer in evidence Defendant's Exhibits 3 and 4 in being the certificate a title.

"Mr. McGinnis: Never mind what it is; it's marked.

"The Court: Submit it for examination.

"Mr. Smith: We object to this because it's all after the date of the alleged injury—long after—and it's not competent evidence in this case.

"The Court: Sustained.

"Mr. Haley: Before the court rules that out, this exhibit shows that the title for the year previous `to that was in Ray Gooch

"Mr. Smith: You come over here and make your proffer to the stenographer.

"Mr. Haley: I am not going to say anything improper here.

"Mr. Smith: According to your view you might not, but we don't accept your view in the matter.

"The Court: What is it you want?

"Mr. Haley: It's true that the certificate of ownership we are offering now is for the year 1922. We started a moment ago to show that the title prior to that time was in Ray. Gooch; that the title from Ray Gooch then went to Alpha Gooch. In other words, we are not trying to prove anything that involves a strict construction of the law in reference to motor vehicles. What we are concerned with, and all that we are concerned with, in this case is whether this defendant was ever the owner of this automobile. Now, then, if we show the title for the year 1921 was in Ray Gooch according to the law as it existed at that time, and then we show that the title the following year was in Alpha Gooch, and they are unable to show any different transfer, undoubtedly it ought to go to this jury to determine who was the" owner of this car. In other words, we trace the ownership from the 1st of January, 1921, to the 1st of January, 1923, which covers the two years during which time this accident occurred, and if the title was never in the defendant certainly it should go to the jury; that's one of the things they will have to find; and we think it competent to show where the title was for those' two years and a half, and that is certainly all we can do is to show where the title was according to the books of the Secretary of State during that time, and if there is any—if it's different from that they will have the opportunity to prove it; we only proffer the evidence that covers our certificate of ownership.

"Mr. Gene Pearson: I want to suggest to the court, that we are placed in this predicament of introducing evidence that they didn't give to the jury

"Mr. Smith: We object to that statement, that the plaintiff hasn't given the jury all the evidence, as being highly improper.

"Mr. Gene Pearson: I am stating that they allege in their petition that this automobile was owned by the defendant. Now, then, it was up to them to give legal proof as to the ownership, and they didn't do it. Now, then

"The Court: That's the position of counsel, that doesn't make it so. The counsel is speaking as to his understanding of the legal phase of the case.

"Mr. Smith: If the counsel wants to so speak, we ask that the court exclude the jury until he gets through so speaking.

"The Court: Overruled.

"Mr. Smith: We save our exceptions to the ruling of the court as being unfair and prejudicial to the plaintiff.

"Mr. Gene Pearson: I say they haven't met the requirement of the law in putting this ownership on this defendant. Now, then, we are called upon to deny it, and we are giving the very best proof we can that we didn't own it. We have to prove a negative because they failed to prove the affirmative.

"Mr. McGinnis: We object to that remark. "The Court: Overruled.

"To which ruling of the court the plaintiff by counsel then and there duly excepted at the time and still except.

"Mr. Gene Pearson: And it's proper for us to prove a negative by denying the ownership, and we have a right to prove the actual facts, whether it's the law or not, the actual fact who had possession of this car and who owned it in 1921, whether it complied with the law or not.

"Mr. Smith: We again ask the court to exclude the jury while counsel is making his speech

"The Court: Any statement made by counsel at the trial table is for the court, and not a matter for the jury, and I take it that the jury has sense enough to know that it's not a matter for them, and not necessary to send them out every few minutes because something may be said by counsel that some other counsel may think would be prejudicial before the jury; the jury—it is sufficient to say—has nothing to do with the things that counsel might address to the court; it's a matter of law, away from the jury, and they are not to consider it in any way.

"Mr. Smith: We want to further except to the remarks of the court, and we say that the remarks of counsel were of such tenor that the jury, however fair or however intelligent, could not remove the prejudice from their mind, and it was permitted by the court with full knowledge of the tenor of those remarks. "Mr. Haley: I won't take but a second. Here is what we are trying to do: We are trying to prove title to the automobile in Ray Gooch; we will show the certificate of ownership under the statute existing at that time, which was presumed to continue until we show otherwise, or until it is shown otherwise; the title started in Ray Gooch, and the next time the title being put or went into the hands of Alpha Gooch; that is what we can show by this evidence, and it's the best evidence that can be produced, the documentary evidence, the papers or certificates themselves, and if we show it in Ray it's presumed to continue in him until shown otherwise, and we can show...