State ex rel. Kansas City Pub. Serv. Co. v. Shain

• Decision Date: 13 December 1939
• Docket Number: No. 36515.,36515.
• Parties: STATE OF MISSOURI at the relation of KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, and CLINTON WALTER SPARKS, Relators, v. HOPKINS B. SHAIN, EWING C. BLAND and WILLIAM E. KEMP, Judges of the Kansas City Court of Appeals.
• Court: Missouri Supreme Court

134 S.W.2d 58

STATE OF MISSOURI at the relation of KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, and CLINTON WALTER SPARKS, Relators, v. HOPKINS B. SHAIN, EWING C. BLAND and WILLIAM E. KEMP, Judges of the Kansas City Court of Appeals.

No. 36515.

Supreme Court of Missouri.

Division One, December 13, 1939.

Certiorari.

WRIT QUASHED.

Charles L. Carr and Hogsett, Murray, Trippe, Depping & Houts for Kansas City Public Service Company, Hogsett, Murray, Trippe, Depping & Houts for Clinton Walter Sparks.

(1) In holding that the ruling of the trial court in respect to statement of plaintiff's counsel that plaintiff and Sparks were booked at the police station, that Sparks was represented at a hearing at the municipal court, and that the hearing of the municipal court resulted in Sparks being fined $50 and in the discharge of the plaintiff, did not constitute reversible error, the Court of Appeals has contravened the controlling decision of this court in Evans v. Trenton, 112 Mo. 405, wherein this court held that a statement by plaintiff's counsel to the jury in regard to how ten jurors on a former trial had stood on an issue in the case was prejudicial error and required the reversal of a judgment for the plaintiff. The record of the Court of Appeals should be quashed therefor. (2) In holding in effect, that relators waived the error in respect to the statement to which defendants objected, which they moved the court to strike out and for which they asked the court to declare a mistrial, by not objecting to the subsequent statement of plaintiff's counsel, immediately following the overruling of the objection and motions, to the effect that after the trial in the municipal court the defendant company took an appeal for Mr. Sparks to the circuit court, the Court of Appeals has contravened the controlling decisions of this court in: Ex parte Dick & Bros. Brewing Co. v. Ellison, 287 Mo. 154; Schierbaum v. Schemme, 157 Mo. 22; Bailey v. Kansas City, 189 Mo. 513, wherein this court held that once an objection has been seasonably made, overruled, and exception saved, it is not necessary, in order to save the point to continue to repeat the objection to the same or similar matter. The record of the Court of Appeals should be quashed therefor.

Jerome Walsh and Roy W. Rucker for respondents.

The Kansas City Court of Appeals properly held that since the record fails to disclose any evidence of bad faith on the part of the attorney in referring to the conviction of Sparks in his opening statement, or any prejudice resulting to relators by reason of said statement, the judgment should not be disturbed. Buck v. St. Louis Union Trust Co., 267 Mo. 666; Dees v. Skrainka Construction Co., 320 Mo. 850; State ex rel. v. Cox, 46 S.W. (2d) 854.

HAYS, P.J.

By this proceeding in certiorari relators seek to have the opinion and judgment of the Kansas City Court of Appeals in the case of Bernard A. Conway v. the Kansas City Public Service Company and Clinton Walter Sparks quashed upon the ground that portions of said opinion, hereinafter specifically pointed out, are in conflict with prior controlling decisions of this court. The parties to the original case, which was an action for assault and battery, will be spoken of as the plaintiff and the defendants as they were designated in the trial court.

Plaintiff's Petition alleged that on the 9th day of September, 1935, defendant Sparks assaulted and beat him; that at the time Sparks was an employee of his co-defendant the Kansas City Public Service Company; and that in assaulting plaintiff Sparks was acting within the scope of his employment. It is conceded that on the day above mentioned Sparks was working for the Public Service Company as Superintendent of its Motor Coach Division; but on the other hand it was claimed by the defendants that in engaging in the altercation with plaintiff, out of which this litigation grew, Sparks was not acting within the scope of his authority as agent of the company.

The evidence, as it is disclosed in the opinion of respondents, tended to show the following facts: On the 9th day of September, 1935, Sparks was riding home on one of the Public Service Company's street cars. Plaintiff had stopped his automobile on the track on which said street car was running near a street intersection. According to plaintiff's evidence, there was another automobile stopped directly in front of him and both machines were waiting for a traffic light to change. The motorman of the street car clanged his bell to warn plaintiff to move and, as plaintiff did not move immediately, engaged in an altercation with him. Meanwhile Sparks alighted from the street car and according to plaintiff walked over to the latter's automobile, began to curse plaintiff and, reaching in through the open window, grasped plaintiff's shoulder and ordered him to move off of the track. Plaintiff then moved his automobile a few feet and got out of it and, after some heated remarks were passed between plaintiff and Sparks, they started to fight. They were separated by the police and were taken to a nearby police station and "booked." Upon a subsequent trial in the police court Sparks was represented by Mr. William A. Kitchen, who is an attorney regularly employed in the Legal Department of the Public Service Company. Later Kitchen took an appeal for Sparks to the circuit court. Sparks paid Kitchen no fee for representing him and the latter was instructed to act for Sparks by the general solicitor of the company. The company continued to retain Sparks in its service.

There was some evidence to the effect that it was the duty of Sparks, whenever a congestion of traffic and consequent delay in the company's service was called to his attention, to do what he could to straighten out the situation.

The portion of respondent's opinion, which relators claim to be in conflict with our prior controlling decisions, has reference to the opening statement made in the trial court by plaintiff's attorney and is as follows: "Said counsel stated his version of the evidence to be offered by plaintiff concerning the assault and battery, and then told the jury that after the occurrence the combatants were booked at a police station; that at the hearing in the municipal court Sparks was represented by an attorney acting upon the direction of the general solicitor of the company; and that the hearing resulted in Sparks being fined Fifty Dollars and in the discharge of the plaintiff. The defendants objected to the statement on the grounds that it was prejudicial and incompetent, moved to strike the statement and declare a mistrial. The objection and motions were overruled and exceptions saved. Said counsel then stated to the jury that after the trial in the municipal court the attorney for Sparks `prosecuted an appeal for him' to the circuit court; that said attorney represented Sparks on appeal; that such facts would be offered as tending to show that the actions of Sparks on the night in question were within the scope of his authority and in furtherance of the business of the company; that the company had knowledge of the conduct of Sparks, `stayed squarely behind him, defended him to the limit and supplied counsel to look after his legal interest.' It is not claimed that the evidence showing the company furnished counsel for Sparks both in the police court and in the circuit court, without cost to the latter, was not properly received. There was no objection to that part of the statement wherein counsel in effect said the company took an appeal `for him,' Sparks, to the circuit court. To say that Sparks appealed to the circuit court or that an appeal was taken for him was merely another way of saying he was convicted in police court. When the jury was told the company took an appeal for Sparks it would understand Sparks was convicted, else appeal for him could not have been prosecuted; and as it was proper to inform the jury concerning the actions of the company in defending Sparks in the police court, the prosecution of the appeal to the circuit court, the statement that Sparks was fined Fifty Dollars in the police court was not sufficient to warrant a holding that the trial judge abused his discretion in refusing to declare a mistrial. [Buck v. St. Louis Union Trust Company, 267 Mo. 644, 185 S.W. 208; Dees v. Skrainka Construction Company, 320 Mo. 839, 8 S.W. (2d) 873.] There is nothing in the record indicating bad faith on the part of plaintiff's counsel. On the contrary the closing part of his statement shows his purpose in stating the action of the company in defending Sparks was a legitimate one. The trial judge evidently thought the statements did not unduly prejudice the defendants. For these reasons we will not sustain defendants' contention on this point. We do not say the conviction of Sparks if he were convicted in the police court or in the circuit court was a proper matter to be shown in the...