Sullivan v. St. L.-S.F. Railway Co.

• Decision Date: 31 December 1928
• Docket Number: No. 27164.,27164.
• Citation: 12 S.W.2d 735
• Parties: ELIJAH SULLIVAN v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

12 S.W.2d 735

ELIJAH SULLIVAN v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.

No. 27164.

Supreme Court of Missouri. Division Two.

December 31, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Edwin G. Ossing, Judge.

AFFIRMED (upon condition).

E.T. Miller, A.P. Stewart and C.H. Skinker, Jr., for appellant.

(1) The demurrer to the evidence should have been sustained, and the peremptory instruction requested by defendant should have been given. (a) There was a failure of proof of interstate employment, the burden of proving which rested on plaintiff. Southern Ry. v. Lloyd, 239 U.S. 501; Lucchetti v. Railway, 233 Fed. 137; Poindexter v. Railway, 4 S.W. (2d) 1067. (b) The evidence was insufficient to show actionable negligence on defendant's part proximately resulting in plaintiff's injury. There was no substantial proof of any of the several acts of negligence pleaded in the petition. Salmon v. Railroad, 181 Mo. App. 417; Long v. Railway, 159 S.W. 779; Wyandotte Ry. v. Wilson, 168 S.W. 565. (2) It was error to permit plaintiff, during the progress of the trial, and over defendant's objection, to amend his petition by striking therefrom the averments respecting the interstate character of his employment. The effect of this amendment was to change plaintiff's alleged cause of action from one based on the Federal Employers' Liability Act to one based on the State law, and to deprive defendant of the defense of assumption of risk although growing out of defendant's negligence, which was available to it under the Federal act. Assumption of risk, previous to the amendment, clearly appeared from plaintiff's own testimony. Pryor v. Williams, 254 U.S. 43; Seaboard Air Line Ry. v. Horton, 233 U.S. 504; Boldt v. Railroad, 245 U.S. 441; Jacobs v. Railroad, 241 U.S. 229. The amendment constituted a departure. Union Pacific Ry. v. Wyler, 158 U.S. 285; Lucchetti v. Railway, 233 Fed. 137; Wabash Railway v. Hayes, 234 U.S. 86; Toledo Ry. v. Slavin, 236 U.S. 454. (3) Plaintiff requested no instruction submitting to the jury any theory or ground of negligence upon which recovery was sought or upon which the jury might find a verdict in favor of plaintiff. The only instruction requested by or given on behalf of plaintiff was one on the measure of damages. This practice has been repeatedly condemned by this court. Sutter v. Railway, 188 S.W. 68; Eversole v. Railroad, 249 Mo. 523; Highfill v. Independence, 189 S.W. 802; Powell v. Railroad, 255 Mo. 457; Wingfield v. Railroad, 257 Mo. 347; Denkman v. Fixture Co., 289 S.W. 596. (4) Defendant's requested Instructions E to J, inclusive, were specific demurrers or withdrawal instructions intended to withdraw from the consideration of the jury assignments of negligence in the petition which found no support in the evidence. Defendant was entitled to these instructions and it was error to refuse them. Chrismer v. Tel. Co., 194 Mo. 207. (5) The closing argument of counsel for plaintiff was highly improper, inflammatory and prejudicial. It was error to permit such argument, to overrule defendant's objections thereto, to fail to reprimand counsel, and to refuse to declare a mistrial on defendant's motion therefor. Such argument found its logical result in a swollen verdict. Neff v. Cameron, 213 Mo. 369; Chawkley v. Railway, 297 S.W. 30; Kull v. Ford Motor Co., 261 S.W. 736; Lessenden v. Railroad, 238 Mo. 247. (6) The verdict is grossly excessive, and is the result of prejudice and bias on the part of the jury, superinduced by the improper and inflammatory argument of counsel for plaintiff. Applegate v. Railroad, 252 Mo. 201; Corn v. Railway, 228 S.W. 78; Adams v. Railway, 100 Mo. 569; Nicholds v. Glass Co., 126 Mo. 67; Pauck v. Provision Co., 166 Mo. 639; Stolze v. Trans. Co., 188 Mo. 581.

Mark D. Eagleton and Hensley, Allen & Marsalek, for respondent.

(1) The court did not err in permitting plaintiff to amend his petition to conform to the proof, by striking out the allegation that he was engaged in interstate commerce at the time of his injury (a) The amendment worked no substantial change in the cause of action. Sec. 1274. R.S. 1919; Montague v. Railroad, 289 Mo. 288; Rippee v. Railroad, 154 Mo. 358; White v. Railroad, 202 Mo. 539, Hudson v. Railroad, 173 Mo. App. 611; New York Cent. Railroad v. Kinney, 260 U.S. 340; Seaboard Air Line v. Koennecke, 239 U.S. 352, affirming Koennecke v. Air Line, 101 S.C. 86; Wabash Railroad v. Hayes, 234 U.S. 86; M.K. & T. Railroad v. Wulff, 226 U.S. 570; O'Dell v. Southern Railroad, 248 Fed. 343; Nash v. Railroad 141 Minn. 148; Midland Valley Railroad v. Ennis, 159 S.W. 214. See, also. Baltimore & Ohio Railroad v. Phillips, 274 U.S. 323, and Lanis v. Railroad, 140 La. 1. (b) The change in the petition did not alter or affect defendant's right to show that plaintiff was engaged in interstate commerce at the time of the injury, if such was the fact. The amendment deprived defendant of no right under the Federal Employers' Liability Act, because it was defendant's privilege to assert such right and to avail itself of any applicable defense under said act, exactly the same after the amendment as before St. Louis, I.M. & S. Railroad v. Hesterly, 228 U.S. 702; North Carolina Railroad v. Zachary, 232 U.S. 248; Toledo Railroad Co. v. Slavin, 236 U.S. 454; Miller v. Schaff, 228 S.W. 490. (c) Defendant and its agents knew, of course, whether the ties being unloaded at the time of plaintiff's injury came from within or from without the State, and whether or not they were being unloaded for use in interstate commerce. Having entirely of their own volition withheld this information, when there was no restriction whatever against their offering proof on the subject, defendant cannot complain that the court deprived it of any right under the Federal act. Osborne v. Gray, 241 U.S. 16. (d) Having failed to present an affidavit of surprise, although opportunity was accorded by the court to do so, defendant cannot predicate error on the amendment. Sec. 1272, R.S. 1919; Chilton v. Cady, 298 Mo. 101; Bammert v. Kenefick, 261 S.W. 78; Koennecke v. Seaboard Air Line, 101 S.C. 86, 239 U.S. 352. (2) The demurrer to the evidence was properly overruled. (a) In ruling upon a demurrer, the court will accept, as true, all evidence in the entire record tending to uphold plaintiff's cause of action, and every inference favorable to plaintiff which can, with any degree of propriety, be drawn therefrom. Buesching v. Gas Co., 73 Mo. 219; Anderson v. Davis, 284 S.W. 450. (b) The evidence tended to support each of the various specifications of negligence in the petition. Callahan v. Ry. Co., 170 Mo. 496; Jordan v. Transit Co., 202 Mo. 418; Keegan v. Kavanaugh, 62 Mo. 233; Bequette v. Glass Co., 200 Mo. App. 506; Salmon v. Railroad, 181 Mo. App. 414; Cox v. Granite Co., 39 Mo. App. 424; Austin v. Railroad, 220 Fed. 85. (3) Failure of plaintiff in a civil case to submit instructions is not error. Our statute permits, but does not require, a party to offer such instructions. Sec. 1417, R.S. 1919; Keppler v. Wells, 238 S.W. 425. Furthermore, defendant at the time made no objection, and saved no exception, to the failure of the court to instruct the jury on the plaintiff's theory of negligence, nor was any complaint on that score made in the motion for a new trial. The matter therefore cannot be reviewed on appeal. Sec. 1459, R.S. 1919; State ex rel. v. Woods, 234 Mo. 26; Maplegreen Co. v. Trust Co., 237 Mo. 362. (4) Appellant's counsel, in his argument, told the jury that, although there was no liability, his client was willing to pay plaintiff for his injury, but would not pay an unreasonable amount, and if they would bring in a verdict for a reasonable amount ($1000) defendant would pay it — thereby necessarily implying that if the jury brought in a verdict for more than that, they would not pay it, but would appeal. Having injected this subject into the debate, defendant should not be heard to complain that plaintiff's counsel retaliated with the statement that he would be willing to give the jury a like sum if the jury thought the injuries were not worth more than the amount suggested; and that defendant would not pay even $1000 without "going to the end of their string." Huhn v. Ruprecht, 2 S.W. (2d) 764. (a) Rulings of trial courts with reference to alleged misconduct of counsel in argument, will not be interfered with on appeal, unless a clear abuse of discretion appears. Huckshold v. Railroad, 90 Mo. 558; Gidionsen v. Ry. Co., 129 Mo. 403; Hays v. Millers' Estate, 189 Mo. App. 81; Yost v. Railroad, 245 Mo. 251. (b) The alleged improper statement of counsel for plaintiff, implying that the court would not have submitted the case to the jury, unless there was evidence to support it, was not objected to, or called to the court's attention in any manner at the time, and therefore the statement cannot be made the basis of error on appeal. Massengale v. Rice, 94 Mo. App. 430; Preston v. Railroad, 292 Mo. 442. (5) The judgment is not excessive. (a) An appellate court will not interfere with the award of damages unless the amount is so glaringly unsupported by the evidence as to shock the judicial sense of right, or compel a conviction that the verdict was the result of prejudice, passion or bias. Manley v. Wells, 292 S.W. 67. (b) The judgment is a reasonable allowance for the plaintiff's injury, as compared with awards in similar cases. Spencer v. Railroad, 297 S.W. 357; Ernst v. Ry. Co. 256 S.W. 225; Jordan v. Railroad, 308 Mo. 47.

ATWOOD, P. J

This is an appeal from a verdict and judgment in favor of plaintiff for $10,000 on account of injuries alleged to have been sustained by him while in the employ of defendant. Plaintiff was one of six section men engaged in unloading ties from the north door of a box car standing on one of defendant's east-and-west side tracks in the city of St. Louis. The ties were of green oak, about eight feet long and weighed about one...