Wuest v. Dorman

• Decision Date: 24 December 1932
• Parties: WILLIAM WUEST, RESPONDENT, v. JOHN DORMAN, APPELLANT
• Court: Missouri Court of Appeals

54 S.W.2d 1000

227 Mo.App. 405

WILLIAM WUEST, RESPONDENT, v. JOHN DORMAN, APPELLANT

Court of Appeals of Missouri, St. Louis

December 24, 1932

Rehearing denied December 28, 1932.

Appeal from Circuit Court of the City of St. Louis.--Hon. Fred J Hoffmeister, Judge.

Reversed and remanded.

S. P McChesney and W. B. Dearing for appellant.

(1) The court erred in giving and reading to the jury plaintiff's instruction No. 1, because: (a) The instruction broadened the issues raised by the pleadings. Kidd v. K. C. Light & Power Co., 239 S.W. 584; Black v. Metropolitan St. R. R. Co., 217 Mo. 672; Wright v. Fonda & Higgins, 44 Mo.App. 634; Krelitz v. Calcaterra et al., 33 S.W.2d 909; Degonia v. R. R., 224 Mo. 564; Esstman v. United Rys. Co., 232 S.W. 725. (b) The evidence tended to confuse the issues rather than clarify the law in its application to the facts in the case. Belt v. Goode, 31 Mo. 128; Warder v. Seitz, 157 Mo. 140; Landon v. U. Rys. Co., 237 S.W. 496. (c) The instruction assumed a controverted fact in the case. Moon v. Transit Co., 247 Mo. 227; Laughlin v. Gorman, 209 Mo.App. 692. (2) The court erred in giving and reading to the jury plaintiff's instruction No. 7, defining the measure of damages, for the reason that said instruction permitted a recovery for past and future loss of earnings without confining the recovery on these items to the amount demanded therefor in the petition. Radtke v. St. Louis Basket & Box Co., 229 Mo. 1; Finley v. United Rys. Co. of St. Louis, 238 Mo. 6; Reagen v. Peoples Motorbus Company of St. Louis, 35 S.W.2d 945; Smoot v. Kansas City, 194 Mo. 513. (3) The court erred in refusing to reprimand counsel for plaintiff on motion of defendant's counsel for grossly improper and prejudicial remarks made during the closing argument of counsel for plaintiff. The admonition of the trial judge was not a sufficient antidote to the poison injected into the case by counsel for plaintiff in making such grossly improper and prejudicial statements. Jackman v. St. Louis & H. Ry. Co., 206 S.W. 244; Nelson v. Heine Boiler Co., 20 S.W. 906; Haynes v. The Town of Trenton, 108 Mo. 123; Evans v. Town of Trenton, 112 Mo. 390; Beck v. Quincy, Omaha & Kansas City Ry. Co., 129 Mo.App. 7.

Strubinger & Tudor for respondent.

(1) The court will consider that appellant has abandoned points not covered by the assignment of errors or points and authorities listed. Zahm v. Royal Fraternal Union, 154 Mo.App. 70, 85; Mahmet v. American Radiator Co., 294 S.W. 1014, 1017; Alexander v. Barnes Grocery Co., 7 S.W.2d 370, 372. (2) The court committed no error in giving and reading to the jury plaintiff's instruction No. 1. The instruction was more favorable to the defendant than defendant was entitled to under the pleadings, contributory negligence being a matter of defense and not being pleaded in this case, and by requesting this instruction plaintiff assumed an unnecessary burden, not, however, prejudicial to the defendant. Hutchinson v. Safety Gate Co., 247 Mo. 71, 90; White v. Railroad, 250 Mo. 476, 487; Alexander v. Barnes Grocery Co., 7 S.W.2d 370, 373. (3) Plaintiff's instruction No. 7 correctly defined the measure of damage as to plaintiff's loss of earnings. If the instruction should more particularly have limited this element of damage, defendant should have offered an instruction thereon, or the error can be cured on appeal by the court ordering a remittitur. Devoy v. St. Louis Transit Co., 192 Mo. 197, 207; Hill v. Union Elec. Light & Power Co., 169 S.W. 345, 359, 260 Mo. 43. (IV) The objection of the defendant to the remarks of plaintiff's counsel is insufficient to present anything for review by the Appellate court because (a) Where the record does not show all the evidence every intendment will be indulged on appeal in favor of the correctness of the Court's ruling. Rhodes v. Rhodes, 95 Mo.App. 327; City of St. Joseph v. Pitt, 109 Mo.App. 635, 639. (b) An objection which does not call attention of trial court to specific grounds upon which it is based is insufficient. Sec. 1061, R. S. of Mo. 1929; Stephens v. City of Eldorado Springs, 190 S.W. 1004. (c) An exception, "I except to that," at close of a series of statements of plaintiff's counsel in argument was insufficient. Tarreyson v. United Railway, 145 S.W. 106, 164 Mo.App. 366, affirmed 152 S.W. 32, 246 Mo. 696. (d) Party deeming opposing counsel's argument prejudicial should request discharge of jury and continuance. Anderson v. Sutton, 293 S.W. 770, 316 Mo. 1058; Shields v. American Car & Foundry Co., 293 S.W. 77.

DAUES, P. J. Becker and Chapman, JJ., concur.

OPINION

DAUES, P. J.

This is an action for damages for personal injuries sustained by plaintiff while allegedly in the employ of defendant. Plaintiff recovered in the lower court, and defendant has appealed.

The case was tried on an amended petition which lays a complaint upon the negligence of the defendant on two grounds, (1) failure to provide boards and supports of sufficient width and thickness to serve as a fulcrum for a telephone pole which was being used as a lever, and, (2) negligence on the part of the defendant in prying under and against the ash pit, thereby causing the lever to fall and injure plaintiff.

The answer is a general denial.

The evidence tended to show the employment by defendant of plaintiff, and tended to show that the work being done at the time of the accident was the removal of an ash pit, and that a telephone pole placed upon a fulcrum was being used in moving the ash pit. There is evidence tending to show that defendant warned plaintiff not to use a clawbar in prying the ash pit, but that in doing so the fulcrum became dislocated and the extended end of the pole fell on plaintiff and injured him. There is evidence on the part of the defendant that he did not employ plaintiff to aid him in this work, and further evidence on the part of the defendant tending to show that plaintiff was physically disabled before the accident, and that the condition shown to the jury existed prior to this injury.

Plaintiff, from the abstract of the record, testified positively that he was employed by defendant to tear down an old shed, and that the defendant employed him on the day before the work was to be done, and employed him to help in the moving of the ash pit, and that he would pay him by a deduction from the rent; that his work in connection with the moving of the ash pit was to "handle the pry." He testified that Dorman, the defendant, had his hand on the pinchbar and pried down, and that in doing so permitted the pole to fall on plaintiff, injuring his knee, right hip and back, requiring medical attention and many visits to the Veterans' Bureau, where he received therapeutic and light treatments. He spent some time in the Veterans' Hospital at Jefferson Barracks. He denied that he was suffering from any disabilities immediately before the accident.

The testimony of witness Hise, who was also working there at the time, was to the effect that defendant attended to the proppings under the pit, same having been blocked at an angle; that defendant instructed Hise to sit on the end of the pole, and that plaintiff was to pull it down; that the plaintiff told defendant not to shake the propping because it was all set, and that the defendant stooped over, gave a little jerk and the propping collapsed and the pole fell on plaintiff. He testified that defendant was using the crowbar in an endeavor to get a board under the pry and that plaintiff was cautioning defendant not to do so, but that defendant pressed down on the crowbar notwithstanding that complaint, and caused the pole to collapse.

The doctor testified that plaintiff was suffering from certain bone injuries which would be permanent, and that certain motions of the hip would be limited. Another physician corroborated him.

From the assignments of error submitted by appellant, it is doubtful whether reliance upon the demurrer to the evidence being overruled is properly here. However, this runs through the case and we hold that a case was made for the jury. In our system of jurisprudence it is for the jury to determine the credibility of the witnesses and the weight of the evidence.

Appellant complains that the court erred in giving plaintiff's instruction No. 1 because it broadened the issues raised in the pleadings, and "that the instruction tended to confuse rather than clarify the law in its application to the facts in the case," and that the instruction assumed a controverted fact.

Appellant also complains of instruction No. 7 in finding the measure of damages, and, finally, that the court erred in refusing to reprimand counsel for alleged grossly, improper and prejudicial remarks to the jury.

Instruction No. 1 hypothecates the facts and then concludes in requiring the jury to find that the "plaintiff was exercising the care of an ordinarily prudent person under the same or similar circumstances, etc." Appellant contends that this broadened the issues because contributory negligence was not pleaded and had no place in this case, and cites a number of cases from the Supreme Court which it is contended sustains the appellant. Among these cases is the case of Degonia v. Railroad, 224 Mo. 564, 123 S.W. 807.

On the other hand, respondent relies upon that class of cases which hold that where the plaintiff assumes an unnecessary burden in his instruction no error prejudicial to the defendant has ensued, and cites such cases as Hutchinson v. Safety Gate Co., 247 Mo. 71, 90, 152 S.W. 52; White v. United Railways Co., 250 Mo. 476, 157 S.W. 593; Alexander v. Barnes Grocery Co., 223 Mo.App. 1, 7 S.W.2d 370.

Obviously we cannot go both ways. A decision requires us to go in one direction or the other. Most of the cases...