Wilkerson v. Wilkerson.
Decision Date | 24 May 1928 |
Docket Number | No. 4316.,4316. |
Citation | 8 S.W.2d 77 |
Parties | NORA P. WILKERSON, RESPONDENT, v. BAILEY WILKERSON, JR., APPELLANT.<SMALL><SUP>*</SUP></SMALL> |
Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Mississippi County. — Hon. Frank Kelly, Judge.
AFFIRMED.
Oliver & Oliver for appellant.
J.M. Haw for respondent.
This is an action for personal injury. The cause was tried to a jury. Verdict and judgment went for defendant. The court sustained a motion for a new trial and defendant appealed.
Plaintiff and defendant are mother and son. Plaintiff and her husband, as the invited guests of the adult son, were riding in the son's automobile, being driven by him, from Charleston, Missouri, to St. Louis, Missouri. While en route in the State of Illinois the defendant's automobile collided with another resulting in plaintiff's injuries for which she sues.
The applicable law of Illinois was pleaded and admitted to be as alleged. The negligence alleged and upon which the cause was submitted is that defendant was negligently and carelessly driving his automobile at a greater rate of speed than was reasonable and proper, having regard for the traffic and use of the highway, or so as to endanger the life and limb or injure the property of others. After admitting the law of Illinois to be as alleged, the answer is a general denial, and a plea that may be termed contributory negligence, and a special plea that the negligence of the driver of the automobile with which defendant's automobile collided was the sole cause of plaintiff's injury. The reply, so far as pertinent here, was a general denial.
J.P. Gallagher owned and was driving the automobile with which defendant collided. Previous to the trial of the cause at bar Gallagher in Illinois sued defendant and his father for damages to his (Gallagher's) automobile. It is disclosed in the record here that Gallagher recovered a judgment against defendant and his father and that this judgment was affirmed, as we understand, by the Court of Appeals in Illinois, but the opinion is not reported.
The trial court specified the grounds upon which the new trial was granted as follows: "Court orders that the verdict rendered herein be, and is, hereby set aside and a new trial granted plaintiff for the reason of the prejudicial remarks of counsel for the defendant as set out in motion for new trial under the first paragraph of the eighth assignment, and for his reference to the trial held in Pulaski county, Illinois, as set out in the second paragraph of the eighth assignment, third paragraph of the eighth assignment, fifth paragraph of the eighth assignment and the first part of the sixth paragraph of the eighth assignment."
The eighth assignment of error in the motion for a new trial charges misconduct on the part of counsel for defendant as follows:
The deposition of Gallagher was taken on behalf of plaintiff. At the outset of the trial plaintiff's counsel started to read this deposition to the jury. Defendant's counsel thereupon objected to the introduction of evidence on the ground that the petition did not state a cause of action and for the further reason "that this suit is a fraud upon its face; that it is unnatural and contrary to the laws of nature and of man." At the conclusion of the objection counsel for plaintiff stated: "I submit that statement is unfair and counsel knows it, and I ask that the jury be directed to disregard it." The court, ruled: "The court will direct the jury to disregard that statement — that it is contrary to nature and contrary to the law of man."
As to the second subdivision of the eighth assignment in the motion for a new trial the record shows that plaintiff's counsel asked his witness Gallagher about the Illinois case against defendant and his father, said suit growing out of the same collision as involved here. On this subject the record shows:
The evidence, just quoted, of the witness Gallagher was brought out by counsel for plaintiff on redirect examination. On recross-examination the record shows:
After the objection last above was sustained counsel for defendant, out of the hearing of the jury so the record shows, made the following offer:
"We offer to show by these depositions that the lawyer who represented Mr. Gallagher in that lawsuit was a negro, and that seven of the twelve jurors were also negroes, as shown by the deposition, at least over half of them." The court made no ruling on the offering.
As to the ground set up in the third subdivision of the eighth assignment in the motion for a new trial the record shows that when plaintiff's counsel had begun the reading of the deposition of John Roach, who was riding in the automobile with Gallagher at the time of the collision, counsel for defendant made this objection:
"We now object to the introduction of any testimony in this case for the reason that the case is a fraud upon its face and shows that it was conceived in sin and born in iniquity, and it has no merit upon its face, and is an attempt to recover damages by misuse of the courts of justice, and for the further reason plaintiff's petition failed to state facts sufficient to constitute a cause of action against this defendant."
At the conclusion of the objection counsel for plaintiff said:
"An objection to this statement was sustained, and I now ask the court to rebuke counsel for defendant for making that kind of statement."
The court ruled as follows:
As to the ground set up in the fifth subdivision of the eighth assignment in the motion for a new trial the record shows that counsel for defendant on cross-examination of plaintiff's witness Roach asked him if he knew who was bringing this suit. Witness answered that he understood that Mrs. Wilkerson brought the suit "against her boy." The record shows this:
As to the ground set up on the first part of the sixth subdivision of the eighth assignment in the motion for a new trial the record shows that counsel for defendant concluded his argument to the jury by using the following language:
Concerning the objection to the argument quoted the record shows:
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