Wright v. Quattrochi

• Citation: 49 S.W.2d 3,330 Mo. 173
• Decision Date: 08 April 1932
• Docket Number: 30040
• Parties: Richard Wright, by his next friend, Appellant, v. Frank Quattrochi, Sr., et al
• Court: Missouri Supreme Court

49 S.W.2d 3

330 Mo. 173

Richard Wright, by his next friend, Appellant, v. Frank Quattrochi, Sr., et al

No. 30040

Supreme Court of Missouri

April 8, 1932

Appeal from Randolph Circuit Court; Hon. A. W. Walker Judge.

Reversed and remanded.

Trusty & Pugh and Redick O'Bryan for appellant John Cook of counsel.

(1) The court erred in giving on behalf of the defendant over the objection and exception of the plaintiff Instruction designated L. (a) Because it is an accident instruction and there is no unknown cause involved. Hogan v. Kansas City Pub. Serv. Co., 19 S.W.2d 707. (2) The court erred in sustaining an objection to plaintiff's offer to prove by Roy Wright admissions against interest made to him by defendant Quattrochi. Sparr & Green v. Wellman, 11 Mo. 231; Grodsky v. Consolidated Bag Co. (Mo.), 26 S.W.2d 618; Forrister v. Sullivan (Mo.), 132 S.W 722, 231 Mo. 345; Brookfield v. Drury College, 123 S.W. 86; Span v. Jackson, Walker Coal & Mining Co. (Mo.), 16 S.W.2d 190; Klaber v. Fidelity Bldg. Co., 19 S.W.2d 758; Farber v. Boston Ins. Co., 256 S.W. 1079; Friedman v. United Rys. Co. of St. Louis, 238 S.W. 1074; Freeman v. Kansas City Pub. Serv. Co., 30 S.W.2d 176; Lochmann v. Brown, 20 S.W.2d 561; Kaufman v. Baden Ice Cream Mfrs., 7 S.W.2d 298; Steinman v. Brownfield, 18 S.W.2d 528; Wulze v. Aquardo, 6 S.W.2d 1017; 2 Jones on Evidence, secs. 900, 903, 906; Wazey v. Travelers Ins. Co., 126 Mich. 125; Fisher v. Pullman Co., 254 S.W. 114; Downing v. Ry. Co., 285 S.W. 791; State ex rel. Life Ins. Co. v. Trimble (Mo.), 276 S.W. 1020; Rice v. Jefferson City, etc., Co. (Mo.), 216 S.W. 746; Kamoss v. Kansas City & W. B. Ry. Co., 202 S.W. 434. (3) The court erred in giving to the jury Instruction 7. Gillette v. Laederich, 242 S.W. 112; Chaar v. McLoon (Mo.), 263 S.W. 174. (4) The court erred in giving at the request of defendant over the objection and exception of the plaintiff Instruction J. Althage v. People's Motorbus Co. (Mo.), 8 S.W.2d 924; Stark v. Bingaman, 223 S.W. 946; Goodwin v. Eugas (Mo.), 236 S.W. 50; Gettys v. Am. Car & Foundry Co. (Mo.), 16 S.W.2d 85; Causey v. Wittig (Mo. Sup.), 11 S.W.2d 11; Mueller v. Holekamp, 260 S.W. 118; Gebhardt v. Am., etc., Co., 296 S.W. 446; Goedecke v. Zurich, etc., Co., 7 S.W.2d 309; Clark v. Atchison, etc., Co. (Mo.), 24 S.W.2d 143; Christman v. Hickman, 37 S.W.2d 672; Rey v. Fayette, etc., 287 S.W. 783; Glaser v. Rothschild (Mo.), 221 Mo. 180, 120 S.W. 1. (5) The court erred in giving to the jury instructions designated D and G. Gettys v. American, etc., Co. (Mo.), 16 S.W.2d 85; Kleinlein v. Foskin (Mo.), 13 S.W.2d 648; Wallace v. F. Burkhart Mfg. Co. (Mo.), 3 S.W.2d 387. (6) The court erred in rulings made against appellant during the final argument of the case to the jury. Huggins v. Hannibal, 280 S.W. 74; Huhn v. Ruprecht (Mo.), 2 S.W.2d 760; Smith v. Star Cab Co. (Mo.), 19 S.W.2d 467.

Rendlen, White & Rendlen and Hunter & Chamier for respondent.

(1) Defendants' Instruction L was properly given. Henry v. Grand Avenue Ry., 113 Mo. 537; Feary v. Met. Ry. Co., 162 Mo. 79; Yawitz v. Novak (Mo.), 286 S.W. 67; 2 Cyc Auto. Law., Blashfield, pp. 1837-38 (and cases there cited); Also supplement to Blashfield. Lehnerts v. Otis Elevator Co., 256 S.W. 832; Wilson v. Roach, 101 Okla. 30, 222 P. 1003; Webb v. Baldwin, 165 Mo.App. 240, 251. (2) The court did not err in sustaining an objection to plaintiff's offer to prove by Roy Wright certain admissions against defendants. (a) Such admissions related to a question of law, and not a question of fact, and were therefore not admissible in evidence. Crockett v. Morrison, 11 Mo. 3; State ex rel. v. Smith, 150 Mo. 88. (b) These admissions, together with the vague, indefinite and uncertain evidence of plaintiff, would not constitute substantial evidence against defendants, and a verdict based thereon would have to be set aside. Layton v. Chinberg (Mo. Sup.), 282 S.W. 434; Furber v. Bolt & Nut Co., 185 Mo. 301. (c) These alleged admissions against interest by Mr. Quattrochi could, at most, have only the effect of impeaching the colored driver, Tuttle. But such impeaching evidence is in the case otherwise and the court's refusal to admit such statement is not error. Error, if any, in excluding evidence is harmless where evidence substantially the same or to the same effect is otherwise admitted. Mullen v. Sensenbrenner Co., 260 S.W. 982; Gilchrist v. Kansas City Rys Co., 254 S.W. 161. (3) Instruction 7 was properly given to the jury. Hill v. Scott, 38 Mo.App. 376. (a) It was not necessary that the words "from the evidence" be used in this instruction. Logan v. Field, 192 Mo. 69; Compressed Air Co. v. Fulton, 166 Mo.App. 28; Baker v. Ry., 52 Mo.App. 607. (4) Withdrawal of Instructions D and G was proper. They were upon abandoned issues and of matters not in the issues made by proof upon which there was a submission of the case to the jury. Durham v. Morrison Co., 297 S.W. 137; Clift v. Railroad, 9 S.W.2d 977; Am. Automobile Ins. Co. v. United Rep., 206 S.W. 260; Brown v. Strimple, 21 Mo.App. 341; Farris & Rosekopf "Instructions to Juries," sec. 21, p. 19, and cases cited. (5) The court did not err in its rulings against appellant, during the closing argument to the jury. (a) Appellant's counsel undertook, in his closing argument to influence the action of the jury, by asserting as facts, matters not in evidence, and this was improper and objectionable. Loyd v. Railroad Co., 53 Mo. 509; State v. Kring, 64 Mo. 591; Beck v. Railroad Co., 129 Mo.App. 7, 108 S.W. 132; Levels v. Railroad Co., 196 Mo. 606, 94 S.W. 275; Neff v. Cameron, 213 Mo. 350; Buck v. Buck, 267 Mo. 644, 185 S.W. 208; Robertson v. Railroad Co., 152 Mo. 382; Straus v. Railroad Co., 86 Mo. 421. (b) The question of misconduct of counsel in argument to the jury is largely a matter of discretion with the trial court, and the Supreme Court will not interfere with the rulings of the trial court thereon, unless an abuse of discretion clearly appears. Moll v. Pollack, 319 Mo. 744, 8 S.W.2d 48; Irons v. Am. Ry. Express Co., 318 Mo. 318, 300 S.W. 283; Goyette v. Ry. Co., 37 S.W.2d 552; Adams v. Kendrick, 321 Mo. 310, 11 S.W.2d 16; Huckshold v. Ry. Co., 90 Mo. 558; Gidionsen v. Union Depot Ry. Co., 129 Mo. 402. (c) Plaintiff is in no position to raise any question as to the argument of defendant, which is set out on pages 57 and 58 of his brief. The record does not show that any objection or exception was made to such argument in the lower court, hence the matter is not reviewable here. Sullivan v. Ry. Co., 321 Mo. 711, 12 S.W.2d 740; Preston v. Railroad Co., 292 Mo. 458, 239 S.W. 1080; Mahaney v. Railroad Co., 108 Mo. 200, 18 S.W. 895; Sidekum v. Railroad Co., 93 Mo. 407. (d) The improper remarks of plaintiff's counsel in the closing argument were not rendered permissible, even if defendant's counsel exceeded the limits of legitimate argument, when he addressed the jury. State v. Shipley, 174 Mo. 515; McDonald & Co. v. Cash & Hands, 45 Mo.App. 80. (6) The verdict was manifestly for the right party and should not be disturbed. Errors, if there be errors, are harmless. Sec. 1062, R. S. 1929; Fritz v. Railroad, 243 Mo. 62; Trainer v. Mining Co., 243 Mo. 359; Mockowik v. Railroad, 196 Mo. 550; Maloney v. Boatmen's Bank, 288 Mo. 435.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

Plaintiff, a minor, suing by his next friend, brought this action in the Circuit Court of Randolph County for damages for personal injuries caused by a truck of defendants in Hannibal in Marion County. Defendants are copartners and are engaged in the produce business in Hannibal and also in Moberly, Randolph County. There was judgment for defendants, and plaintiff's motion for a new trial having been overruled, he appealed. The damages claimed fix our jurisdiction. Plaintiff's injuries are permanent and painful and his disability is all but total. The only question in the case was the liability of defendants.

I. Plaintiff assigns as error a given instruction to the effect that if the jurors believed from the evidence that the injuries sustained by the plaintiff were the result of an accident or misadventure and not the result of negligence on the part of the defendants as defined in other instructions, then the jurors should find for the defendants. The propriety of this instruction is to be judged by the facts in evidence.

Plaintiff was injured on October 4, 1928, at or shortly before five o'clock in the afternoon while it was yet daylight in an alley near Broadway in Hannibal. The alley runs from Church Street on the south to Broadway on the north. It is sixteen feet wide and paved. The Minor garage occupies the first floor of a building at the southwest corner of Broadway and the alley. It runs back southwardly along the west line of the alley, a distance of sixty-seven feet. The garage has an alley door very close to the rear of the building, that is to say nearly sixty-seven feet from Broadway. The door is nine and one-half feet wide and there is a runway from the garage down into the alley. Automobiles enter and leave the garage by this doorway. The Hannibal Milling Company has an office at the southeast corner of Broadway and the alley. This building runs southwardly along the east line of the alley about forty feet. The garage and the milling office face each other across the alley as far back from Broadway as the shorter building, the milling office, extends. There are windows on the alley side of the milling office. The property of the milling company across the alley from the back door of the garage is not improved. But about twenty feet south of the door of the garage, that is to say, that much further away from Broadway, the milling company has an oil house. These local facts will aid the understanding of...