Speicher v. Dunn

• Citation: 530 S.W.2d 45
• Decision Date: 04 November 1975
• Docket Number: No. 36496,36496
• Parties: Charles P. SPEICHER, Plaintiff-Respondent, v. Norman James DUNN, Jr., and Eunice Dunn, Defendants-Appellants. . Louis District, Division Four
• Court: Court of Appeal of Missouri (US)

Page 45

530 S.W.2d 45

Charles P. SPEICHER, Plaintiff-Respondent, v. Norman James DUNN, Jr., and Eunice Dunn, Defendants-Appellants.

No. 36496.

Missouri Court of Appeals, St. Louis District, Division Four.

Nov. 4, 1975.

Jack C. Harper, Clayton, Shifrin, Treiman, Bamburg & Dempsey, Richard B. Dempsey, St. Louis, for defendants-appellants.

David C. Godfrey, Clayton, Eugene K. Buckley, Evans & Dixon, St. Louis, for plaintiff-respondent.

NORWIN D. HOUSER, Special Judge.

Suit for personal injuries and property damage brought by Charles P. Speicher against Norman James Dunn, Jr. and Eunice Dunn, arising out of an intersectional automobile collision in St. Louis County. Each defendant filed a counterclaim, Eunice for property damage, Norman for personal injuries. A trial jury found the issues for plaintiff and against defendants on both petition and counterclaims. Defendants have appealed.

Appellants' sole point follows: 'Where the entire trial was conducted by plaintiff in a manner calculated to arouse and inflame the jury with feelings of hostility towards defendants and their witnesses, a closing argument suggesting that defendants' attorney tries his lawsuits in an improper manner is reversible error.'

The adjective clause is so general and lacking in specificity as to what was done in the conduct of the trial to arouse and inflame the jury with feelings of hostility, or wherein and why hostility was engendered, and is so vague and general, that it utterly fails to comply with Rule 84.04(d) requiring points relied on to 'state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.' Lawson v. Cooper, 475 S.W.2d 442, 447(7) (Mo.App.1972). We decline to seine through the transcript, assume the role of adversary and ferret out possible errors in the conduct of 'the entire trial' for examination and review. Cavaness v. Armstrong, 525 S.W.2d 446, 447(3) (Mo.App.1975). That is appellants' responsibility.

Appellants' chief complaint, stated in the main clause of the assignment of error, is that counsel committed reversible error in closing argument suggesting that defendants' attorney 'tries his lawsuits in an improper manner.' Perusal of the closing argument, reported in full, discloses that counsel did not make that argument in those words. Perusal of the argument portion of their brief discloses that appellants' complaint relates to five certain remarks of counsel. To be properly presented for appellate review such allegedly improper remarks should have been stated with particularity in the assignment of error. 'Compliance with Rule 84.04(d) required plaintiff, at least, to specify the statements and arguments and to particularize why the allowance of such was prejudicial to it. Lawson v. Cooper, 475 S.W.2d 442, 447(7) (Mo.App.1972); Epperson v. Nolan, 452 S.W.2d 263, 267(7) (Mo.App.1970); Hays v. Proctor, 404 S.W.2d 756, 761(6) (Mo.App.1966).' M & A Electric Power Cooperative v. Nesselrodt, 509 S.W.2d 468, 470(4) (Mo.App.1974). Although not so specified and particularized, we will review the challenged remarks, in the liberal exercise of our discretion because of the brevity of the argument portion of appellants' brief (consisting of one and one-half pages), which makes it possible to ascertain the precise complaints.

First, appellants take exception to counsel's reference to Norman Dunn as a 'hot rod.' Respondent had testified that after he entered the intersection of Highway 140 and Whitehall Manor Drive his automobile stalled in the intersection; that Norman Dunn approached in a sports car at 45--50 m.p.h. and ran into the side of respondent's car. Respondent's counsel, referring to his client, argued, 'he wanted to get out of the intersection quickly; he could not do it quick enough though for the hot rod.'

Appellants' second and third complaints relate to counsel's reference to Norman Dunn's Camaro automobile as a 'hot sports car' and to Dunn's shifting it down from fourth gear into third gear--not downshifting to reduce his speed--but 'putting the car into drag.'

Appellants characterize the above as 'gutter language' and a 'highly improper accusation.' Reference to an automobile driver as a 'hot rod' is improper. Counsel should not engage in name calling in the trial of a lawsuit. Counsel's reference to the automobile as a 'hot' sports car was inappropriate and subject to exception. These were not mortal sins, however. The impropriety of using these epithets could have been cured by reprimand of counsel or proper instruction of the jury, on objection and motion or request of appellants, but no objection was registered by appellants and no motion or request of any kind was addressed to the court. 'It has long been the general rule that when no objection is made to improper argument it is not a matter subject to review on appeal. The theory is that the erroneous feature thereof is waived (citing cases). Also, the failure to request the trial court to instruct the jury to disregard improper argument * * * constitutes a waiver of the right to complain on appeal that the jury was not so instructed (citing cases), and the same is true when there is no request that the trial court reprimand counsel for improper argument.' Olsten v. Susman, 391 S.W.2d 328, 330, 15 A.L.R.3d 1095 (Mo.1965). And see Baumle v. Smith, 420 S.W.2d 341, 346 (Mo.1967).

Counsel's comments on the manner in which Norman Dunn operated gears in reducing his speed as the Camaro approached the intersection were within the bounds of fair comment in argument of the issues tried.

Appellants' fourth and fifth complaints are set in this background: In his argument appellants' counsel made the statement, 'Now, in all my practice as a lawyer, I have yet to run across a case like this,' where a man violates a stop sign and then comes into court 'for something as a result of his own negligence * * *.' In the last half of final argument counsel for respondent, referring to Mr. Harper's remark, said, 'As you all know, we know each other's tactics. We've heard each other before * * * we know each other and we know how lawyers try cases * * *. You file a counterclaim, as Norman and Eunice Dunn have, as we call it, it's in effect a smoke screen, to take the minds off the real issues, as Mr. Harper well knows, take your minds off what really happened in this case. * * * why file (the counterclaim)? I don't know. Don't listen to that smoke screen....