Wren v. St. Louis Public Service Co., 30883

• Court: Missouri Court of Appeals
• Writing for the Court: PER CURIAM; ANDERSON, P. J., WOLFE, J., and SAM C. BLAIR; RUDDY
• Citation: Wren v. St. Louis Public Service Co., 355 S.W.2d 365 (Mo. App. 1962)
• Decision Date: 20 March 1962
• Docket Number: No. 30883,30883
• Parties: Charles Oliff WREN, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Defendant-Appellant.

Page 365

355 S.W.2d 365

Charles Oliff WREN, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Defendant-Appellant.

No. 30883.

St. Louis Court of Appeals, Missouri.

March 20, 1962.

V. James Ruddy, St. Louis, for appellant.

Gray & Jeans, Charles E. Gray, St. Louis, for respondent.

BRADY, Commissioner.

This appeal arises out of a suit for damages for personal injuries which resulted in a verdict for the respondent in the amount of $9,000. We will hereinafter refer to the parties by their designation at the trial. The defendant here contends: (1) that the trial court abused its discretion in overruling defendant's objection and motions for mistrial based upon plaintiff counsel's interjection of insurance into the case; (2) that the trial court prejudicially erred in refusing defendant's offered Instruction 'D'; (3) that the trial court prejudicially erred in allowing plaintiff to read into evidence, over the defendant's objection, plaintiff's interrogatories No. 2 and No. 2A and the answers thereto; (4) that the trial court abused its discretion when it allowed plaintiff's attorney to pass plaintiff's Exhibit 7 to the jury as supposed rebuttal evidence; (5) that in giving Instruction IX the trial court prejudicially erred; and (6) that the verdict and judgment was so grossly excessive as to shock the conscience of the court, to be conclusive proof of passion and prejudice on the part of the jury, and to require a new trial or a substantial remittitur.

This appeal results from the second trial of this case. See Wren v. St. Louis Public Service Co., Mo., 333 S.W.2d 92. The factual situation disclosed by the evidence with reference to the accident itself shows that the plaintiff was driving his employer's truck in a line of traffic proceeding northwardly on Euclid in the City of St. Louis, and would alternately stop and proceed as traffic required; that there are two lanes for traffic in each direction on that street; that he brought the truck to a normal stop in the lane next to the center line of the street and was at the end of a line of vehicles so stopped; that the plaintiff was stopped in this position for a few minutes when struck from the rear by one of the defendant's buses; that the truck was equipped with a hydraulic lift on the tailgate which was in a down position at the time of impact placing the lift level with the truck bed; and that after the impact plaintiff alighted and saw a slit across the front of the bus where it had contracted this tailgate. It further appeared that the collision caused the plaintiff to be 'thrown around in the cab' of the truck, and he experienced pain in his right shoulder, neck and back. The testimony dealing with his injuries will be later detailed herein.

The defendant's defense was sudded brake failure. The bus was following the truck in the same lane about 60 feet back when the truck made a normal stop. At a distance of about 45 feet from the truck the driver of defendant's bus began to apply the brakes. The bus was then proceeding at 15 m. p. h. It was then the driver discovered the brakes of the bus to be slack, and at a distance of 18 to 20 feet from the rear of the truck the driver pulled on the hand brake. The bus was going 8 to 9 m. p. h. when the hand brake was applied, and the combination of brakes slowed the bus to 3 to 5 m. p. h. at impact. Prior to this time there was no sign of brake defect and with normal brakes the bus could have been stopped, at the speed it was traveling, within 40 to 45 feet, on direct examination, and 45 to 50 feet, on cross-examination. The steel edge of the tailgate came through the front of the bus and pinned the driver's foot to the footbrake.

The defendant's first contention of prejudicial error as stated earlier herein is based on the continual interjection, as defendant states in its brief, '* * * into the case the irrelevant fact that the defendant was protected by insurance by so telling the jury during cross-examination of defendant's witness Norman Atkins, and by repeating the name of the insuror, the Transit Casualty Company * * *' nine times in his closing argument. Defendant asks, 'What possible legitimate purpose could it have served to constantly advise the jury that the Transit Casualty Company, by whom Mr. Atkins was employed, was 'an insurance carrier'.' The answer arises from the evidence Mr. Atkins was to give, and gave. An important issue in this case was the extent of the plaintiff's injuries and just how disabled plaintiff was. On this issue, the defendant introduced movies of the plaintiff taken on five different occasions. Defendant's counsel had stated, in his opening statement, 'Now, my last witness, ladies and gentlemen, will be Mr. Norman Atkins. Mr. Atkins is a special investigator from our office, and I anticipate Mr. Atkins will testify that on approximately five occasions he has taken movies of Mr. Wren. * * *' (Emphasis supplied.) These films were taken a distance of about 100 yards or more from the plaintiff, and in some of them other people were shown. When Atkins was called, he was asked by defendant's counsel, 'By whom are you employed?' and his answer was, 'Transit Casualty Company.' The plaintiff's cross-examination of Atkins went extensively into how the plaintiff could be identified in these films and sought to cast doubt on Atkins' testimony that the person shown was the plaintiff. While testifying, Atkins was asked, 'By the way, who is, what is Transit Casualty?' and thereupon defendant's counsel objected that it '* * * would be overemphasis of the insurance, and would prejudice the defendant in the eyes of this jury by overemphasizing the fact that there is insurance in this case.' The plaintiff's theory was that while Atkins was shown to have been working for Transit Casualty Company, there was no connection of that company with this case, and that to show the interest Atkins had in the outcome of the trial, the interest of his employer, Transit, had to be shown. The trial court overruled the objection, stating that in doing so it relied upon Clayton v. St. Louis Public Service Company, Mo.App., 276 S.W.2d 621. The plaintiff's counsel then restated his question: 'Sir, the question is what interest does Transit Casualty Company have in this lawsuit', and Atkins answered, 'The insurance carrier, I assume.'

The authenticity and accuracy of the movies taken by Atkins were material to the issue of the extent and nature of the plaintiff's injuries and the damages to be awarded. They had a definite bearing upon the weight to be given by the jury to the plaintiff's medical testimony and constituted an attack upon and refutation of the testimony of plaintiff's fellow workers. The defendant urged the films upon the jury without any qualifications. Under these circumstances the plaintiff was entitled to show that Atkins, who took the films, was an employee of Transit Casualty, who was financially interested in the outcome of this litigation. Those who are interested can find a learned and complete examination of the authorities in Leavitt v. St. Louis Public Service Company, Mo.App., 340 S.W.2d 131 at loc. cit. , page 138 and , pp. 138-139. See also Clayton v. St. Louis Public Service Company, Mo.App., 276 S.W.2d 621 at loc. cit. [1, 2], page 624.

The plaintiff also contends that the reference to Transit Casualty Company by plaintiff's counsel in argument constituted reversible error. In ruling this point, we call attention to Instruction No. VII, given by the court at the request of defendant. This so-called credibility of the witness instruction states in its part pertinent to this inquiry:

'The Court instructs the jury that you are the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. In determining such credibility and weight, you may take into consideration the witness, his or her manner on the stand, his or her interest, if any, in the result of the trial, his or her relation to or feeling towards the parties to the suit, the probability or improbability of his or her statements, as well as all the other facts and circumstances given in evidence. * * *'

The defendant commented on this instruction at some length in its closing argument. Counsel read the instruction to the jury and stated, 'Now, that is an important instruction, Ladies and Gentlemen, and please read it when you go upstairs, and study it.' Counsel then proceeded to comment in detail upon the testimony given by certain of plaintiff's medical witnesses, and also upon the fact that one doctor who examined plaintiff was not called; and then stated:

'Now, that is his testimony, Ladies and Gentlemen. That is the testimony of almost all the witnesses. And on that testimony they are asking you to bring in a verdict for the plaintiff. Again, that big word 'credibility."

Moreover, defendant went on to argue that the plaintiff's fellow employees might be reluctant to testify against the plaintiff's interests.

It is clear that defendant relied upon Instruction No. VII, and it was certainly within his rights to do so. But Instruction No. VII does not mean that the jury is entitled to take into consideration the interests of only the plaintiff's witnesses. It also had equal force when the jury was considering the credibility of the defendant's witnesses and so was available for argumentative purposes to plaintiff's counsel. Moreover, the trial court is allowed large discretion in permitting or restraining argument of counsel, and the rulings of the trial court are generally deferred to on appeal, Satterfield v. Southern Railway Company, Mo.App., 287 S.W.2d 395. The wisdom of the rule is obvious, for inflections of voice do not appear from the printed pages of the transcript, nor do many other circumstances that surround the making of such a statement as here involved, but all of these matters are directly within the knowledge of the trial court who heard...