Sparks v. Auslander

• Decision Date: 03 July 1944
• Docket Number: 38939
• Citation: 182 S.W.2d 167,353 Mo. 177
• Parties: David R. Sparks v. Sol Auslander, Appellant
• Court: Missouri Supreme Court

182 S.W.2d 167

353 Mo. 177

David R. Sparks v. Sol Auslander, Appellant

No. 38939

Supreme Court of Missouri

July 3, 1944

Rehearing Denied September 5, 1944.

Appeal from Circuit Court of City of St. Louis; Hon. David J Murphy, Judge.

Affirmed.

John S. Leahy, John J. Nangle, George Gantner and William O'Herin for appellant.

(1) The verdict and judgment in this case are not supported by any substantial evidence and defendant's requested demurrer to the evidence at the close of the whole case should have been given because: said verdict and judgment are based solely upon speculation and conjecture. State ex rel Railroad v. Bland, 313 Mo. 246, 281 S.W. 690; Knight v. Wabash Ry. Co., 85 S.W.2d 392; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511; Hamilton v. Ry. Co., 318 Mo. 123, 300 S.W. 787. (2) Not only are the verdict and judgment predicated upon conjecture and speculation, but the essential elements of plaintiff's case can only be supplied, if at all, by basing an inference upon an inference. This is not permissible. Boggess v. K.C. Rys. Co., 207 Mo.App. 1; Sexton v. Met. Street Ry., 245 Mo. 254, 149 S.W. 21; Hamilton v. Railroad, 250 Mo. 714; Bollinger v. St. Louis-S.F. Ry. Co., 334 Mo. 720, 67 S.W.2d 985; Diel v. Mo. Pac. Ry. Co., 37 Mo.App. 454. (3) No causal connection was established between the alleged negligence of defendant and plaintiff's injuries. Hamilton v. Ry. Co., 318 Mo. 123, 300 S.W. 787. (4) The evidence tends to support equally either of several inconsistent factual inferences, some of which result in a failure of proof of defendant's actionable negligence, and therefore facts essential to plaintiff's case were not established by legitimate proof. Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511. (5) Some of the inferences sought to be drawn in support of plaintiff's case were inconsistent with the undisputed facts established by the evidence. Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511; State ex rel. v. Hostetter, 342 Mo. 341, 115 S.W.2d 802. (6) The impossibility of producing evidence in support of plaintiff's case by reason of plaintiff's inability to remember the events in question did not justify resort to speculation and conjecture in seeking to make a case. Cox v. St. Louis-S.F. Ry. Co., 9 S.W.2d 96. (7) Plaintiff's Instruction 1, purporting to cover all of the issues in the case and directing a verdict for plaintiff, should not have been given because: it was unsupported by any substantial evidence. State ex rel. Railroad v. Bland, 313 Mo. 246, 281 S.W. 690; Knight v. Wabash Ry. Co., 85 S.W.2d 392; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511; Hamilton v. Ry. Co., 318 Mo. 123, 300 S.W. 787; Boggess v. K.C. Rys. Co., 207 Mo.App. 1; Sexton v. Met. Street Ry., 245 Mo. 254, 149 S.W. 21; Hamilton v. Railroad, 250 Mo. 714; Bollinger v. St. Louis-S.F. Ry. Co., 334 Mo. 720, 67 S.W.2d 985; Diel v. Mo. Pac. Ry. Co., 37 Mo.App. 454. (8) It was error to permit plaintiff's counsel, over objection, to make prejudicial statements in the presence of the jury concerning defendant's counsel reading in evidence the admission notes from the St. Louis County Hospital record of plaintiff's case, and to deny defendant's requested motion for mistrial because thereof. (9) It was error to permit plaintiff's counsel, over objection, to make an inflammatory and prejudicial argument to the jury which constituted a plea for punitive damages and to deny defendant's request for mistrial by reason thereof, and to make a further prejudicial argument to the jury, over objection, concerning the defendant offering evidence to the effect that plaintiff had been drinking on the occasion in question, and in such argument to cast reflection upon defendant's counsel's conduct in presenting this evidence. Hancock v. K.C. Terminal Ry. Co., 339 Mo. 1237, 100 S.W.2d 570; Henry v. Illinois Central R. Co., 282 S.W. 423; Jackman v. St. Louis & H. Ry. Co., 206 S.W. 244. (10) It was error to permit plaintiff's counsel, over objection, to make an improper and prejudicial argument to the jury calling on the jurors to place themselves in plaintiff's position and determine the amount that they would want themselves for such injuries. Sullivan v. St. Louis-S.F. Ry. Co., 12 S.W.2d 735; Stroud v. Doe Run Lead Co., 272 S.W. 1080; Sweany v. Wabash Ry. Co., 229 Mo.App. 393, 80 S.W.2d 216; Haake v. Milling Co., 168 Mo.App. 177.

Moser, Marsalek & Dearing and W. B. Dearing for respondent.

(1) The trial court did not err in overruling the demurrer offered by defendant, and the verdict and judgment are not based upon conjecture and speculation, but rest upon facts duly established by the evidence. Dakan v. G.W. Chase & Son Mercantile Co., 197 Mo. 238, 94 S.W. 944; Frese v. Wells, 40 S.W.2d 652; Messing v. Judge & Dolph Drug Co., 322 Mo. 901, 18 S.W.2d 408; Cech v. Mallinckrodt Chemical Co., 323 Mo. 601, 20 S.W.2d 509; Stewart v. Laclede Gas Light Co., 241 S.W. 909; State ex rel. City of St. Charles v. Haid, 325 Mo. 107, 28 S.W.2d 97; Stotler v. Railway Co., 200 Mo. 107; Jedlicka v. Shackelford, 270 S.W. 125. (2) The trial court is vested with a discretion in ruling on the propriety of an argument made to the jury, which discretion will not be overruled unless it is shown to have been arbitrarily exercised. The argument made to the jury by plaintiff's counsel was strictly within the issues and was not an improper one. The trial court clearly did not abuse its discretion in overruling the objections interposed during the course of defendant's argument. Kersten v. Hines, 283 Mo. 623, 223 S.W. 586; Goyette v. St. Louis-S.F. Ry. Co., 37 S.W.2d 552; Kelso v. Ross Constr. Co., 337 Mo. 202, 85 S.W.2d 527; Marlow v. Nafziger Baking Co., 333 Mo. 790, 63 S.W.2d 115.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action for personal injury alleged to have been caused by defendant's negligence; verdict and judgment for plaintiff for $ 20,000, and defendant appealed.

Error is assigned: (1) On the refusal of a demurrer to the evidence; (2) on plaintiff's instruction No. 1; and (3) on argument.

Plaintiff was injured when his car, driven by him, struck the rear of defendant's car, which was parked partly on the highway. Plaintiff received a brain and other injuries. The brain injury was such that he was never able to recall anything pertaining to the accident, or shortly preceding, and through a period of several days thereafter.

Plaintiff resided in Alton, Illinois. On December 22, 1941, he was driving alone from Alton to St. Louis. About 7:15 p.m. (after dark), he had crossed over to Missouri, and was driving south on highway 99, St. Louis County. At the place of accident the highway had 4 paved traffic lanes and an 8 foot dirt shoulder on each side. Defendant, shortly prior to the accident, had also been driving south and alone on said highway, and at the place of accident, had a flat, left front. He had no tools to change tires, so parked his car on the west side of the highway with the left (east) wheels about a foot and a half on the pavement and the remainder of the car on the shoulder. Defendant said his lights, front and rear, were burning at the time of the accident, but there was evidence from which an inference to the contrary might be drawn. It had been raining shortly before the accident, and the pavement was wet and the shoulders were soft and muddy.

After defendant parked his car he, according to his evidence, stood immediately east of his left front fender, facing north, and tried to flag southbound cars; wanted to get to a service station for aid. Six or seven southbound cars passed him up. Not having any luck from where he was standing he decided (so the inference might be drawn) to change stands. As plaintiff's car, traveling in the west lane, approached from the north, defendant (as he told others) "stepped out on the pavement" of the west lane; he said to one witness that he had "made up his mind that that one (plaintiff's car) wasn't going to get by; I got out there to stop that car; I got out so he couldn't get by me."

Plaintiff's instruction No. 1 directed a verdict for plaintiff if the jury found: (1) That plaintiff was driving south at the place of accident; (2) that it was dark and that the shoulder on the west side was wet and slippery; (3) that defendant had parked his car on the west side of the highway, part on the pavement and part on the shoulder; (4) that as plaintiff approached said place "defendant suddenly, unexpectedly and without warning to plaintiff, moved onto said highway No. 99 and into the path of plaintiff's automobile;" (5) and "that at said time there was a northbound automobile with burning headlights, approaching said place from the south;" (6) and "that defendant's act in so moving into the path of plaintiff's automobile, if you so find, created an emergency for plaintiff and caused him to change the course of his automobile and to drive it on the west shoulder of said highway and to collide with defendant's automobile;" (7) and "that defendant knew, or by the exercise of ordinary care on his part would have known, that to so move into the path of plaintiff's automobile, if you so find, would create an emergency for plaintiff and would probably cause plaintiff to be injured and that in so moving, if you so find, defendant was negligent, and that such negligence, if any, on his part directly caused plaintiff to be injured." The answer was a general denial and a plea of contributory negligence.

Defendant testified: "I tried to flag him (plaintiff) the same way I did the others (with his hands), and I noticed that about 150 feet away (tire marks showed about 100 feet) from my car he was leaving the...