State ex rel. Gilday v. Trimble
Decision Date | 01 December 1931 |
Docket Number | 30637 |
Citation | 44 S.W.2d 57,329 Mo. 198 |
Parties | The State ex rel. E. J. Gilday v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals |
Court | Missouri Supreme Court |
Certiorari to Kansas City Court of Appeals.
Record quashed.
Mosman Rogers & Buzard for relators.
(1) The opinion of the Court of Appeals is in conflict with and contrary to the rulings and decisions of the Supreme Court in holding that the remarks in argument constituted misconduct and reversible error. State ex rel. Meyer v Daues, 285 S.W. 986; Straus v. Railroad Co., 86 Mo. 421; Ranier v. Railroad Co., 271 S.W. 500; Irons v. Am. Express Co., 300 S.W. 293; Moll v. Pollack, 8 S.W.2d 48; Winkler v. Railroad Co., 10 S.W.2d 650; Scullin v. Wabash, 184 Mo. 695; State v. Bland, 30 S.W.2d 445. (2) The opinion of the Court of Appeals is in conflict with and contrary to the rulings and decisions of the Supreme Court, which hold that before a case may be reversed for misconduct in the argument, it must appear that the trial court abused its discretion in ruling upon the matter at the time, and that the remarks were such as to and did prejudice the jury against the complaining party. Irons v. Am. Express Co., 300 S.W. 293; Moll v. Pollack, 8 S.W.2d 48; Winkler v. Railway, 10 S.W.2d 649; State ex rel. Meyer v. Daues, 285 S.W. 986; Bobos v. Packing Co., 19 S.W.2d 633; Yost v. Union Pac. Ry. Co., 245 Mo. 219.
Henry S. Conrad, L. S. Durham, Hale Houts and Spurgeon L. Smithson for respondents.
(1) The Court of Appeals in holding that the remarks of plaintiff's counsel in his argument to the jury constituted improper comment and reversible error has not contravened the decisions of this court. (a) The Court of Appeals in holding that Doctor Newman was more accessible to the plaintiff than the defendant and, indeed, that he was under the control of the plaintiff rather than the defendant, and in holding that his non-production by the plaintiff was a proper subject of comment by the defendant, but that his non-production by the defendant was not a proper subject of comment by plaintiff's counsel, has not contravened any decisions of this court, but on the contrary, has followed the controlling decisions of this court. Atkinson v. United Rys., 286 Mo. 640; Porter v. Railroad, 28 S.W.2d 1039; Evans v. Trenton, 112 Mo. 403; Willits v. Railroad, 221 S.W. 65; State ex rel. v. Reynolds, 278 Mo. 695; State ex rel. v. Trimble, 38 S.W.2d 1017; State ex rel. v. Haid, 41 S.W.2d 809; Winkler v. Railroad, 10 S.W.2d 650; State v. Bland, 30 S.W.2d 445; Grubbs v. Public Service Co., 30 S.W.2d 441; State ex rel. Meyer v. Daues, 285 S.W. 986. (b) The Court of Appeals has not contravened any decision of this court in holding that the comment made by plaintiff's counsel was not a proper retort to argument made by defendant's counsel. Rainier v. Railroad, 271 S.W. 506; Yost v. Railroad, 245 Mo. 219; Bobos v. Krey Packing Co., 19 S.W.2d 630; State v. Bland, 30 S.W.2d 446. (c) Defendant's counsel made no comment upon the plaintiff's non-production of Doctor Newman. Regardless, therefore, of what the effect of such comment would have been, there can be no claim of justification of the argument of plaintiff's counsel as a retort. State ex rel. Myer v. Daues, 315 Mo. 186. (2) The Court of Appeals did not contravene any decision of this court on the question of discretion of the trial court or in respect to the matter of the prejudice of the error committed. Moll v. Pollock, 8 S.W.2d 48; Irons v. Ry. Exp., 300 S.W. 239; Nelson v. Boiler Co., 20 S.W.2d 911; Atkinson v. United Rys., 286 Mo. 642.
The relator, employed by Smith Brothers, Inc., while working in a tunnel was injured by an electric wire, and recovered judgment for $ 3,000 for the alleged negligence of the defendant in failure to have said wire sufficiently insulated. On appeal to the Kansas City Court of Appeals the judgment of the circuit court was reversed on the sole ground that the counsel for plaintiff in his closing argument made improper remarks to the jury. The matter is set out by the Court of Appeals in its opinion, as follows:
The Court of Appeals held that it was entirely proper for defendant's counsel to call attention to the failure of plaintiff to call Dr. Newman, but reversible error for the court to permit the plaintiff to reply to it in the way he did.
It will be noted from the excerpt that Dr. Newman made two examinations of the plaintiff: one when he was first injured in May, another one in September when he applied for a position with the Skelly Oil Company. Two doctors besides Dr. Newman who examined the plaintiff were produced by him at the trial, but he did not call Dr. Newman.
In the second examination Dr. Newman did not represent the plaintiff. So far as his discoveries at that time were concerned he was as available to the defendant as to the plaintiff. Defendant's counsel stated that Newman would not have been a partisan witness, and he had no motive to testify falsely in regard to the plaintiff's condition. It was entirely proper to...
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