Opinion
No. 27855.
May 16, 1950.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, MICHAEL J. SCOTT, J.
Thompson, Mitchell, Thompson Douglas, John O. Hichew, James P. Brown, St. Louis, for appellant.
Keegan Rickhoff, Gregg W. Keegan, Orville Richardson, St. Louis, of counsel, for respondent.
This action is for damages arising out of personal injuries received when the defendant's street car and an automobile in which the plaintiff was riding collided. There was a verdict and judgment in the sum of five thousand dollars for the plaintiff and the defendant prosecutes this appeal.
The evidence was sharply conflicting in some respects but no point is raised concerning its sufficiency to sustain the verdict. The assignments of error relate to statements made by counsel for the plaintiff during the trial, the cross-examination of a witness for the defendant and the argument of plaintiff's counsel, which the defendant claims was improper. Since the facts, which go to the issues tried, need not be considered to pass upon the points raised, only such testimony as relates to the errors asserted is set out.
The first incident of the trial to which our attention is directed occurred while the plaintiff's case was being presented. One of three doctors who had treated the plaintiff had concluded his testimony and after excusing him plaintiff's attorney requested a short recess because he desired to call to the stand a Dr. Howard who had not yet arrived in the courtroom. In making this request he also stated: "Now, Dr. Kennedy, who was to testify in this case, is in the hospital with virus infection. I haven't been able to reach agreement with counsel for defendant about his testimony."
At this point, out of the hearing of the jury, counsel for the defendant requested that a mistrial be declared because the remark of plaintiff's counsel was prejudicial in that it gave the jury the impression that the defendant was attempting to conceal some medical testimony. Still out of the hearing of the jury, plaintiff's counsel explained to the court that he had asked defendant's counsel the night before if Dr. Kennedy's testimony could be taken at the hospital during a recess and then read to the jury, but defendant's counsel had refused to agree to this. He further stated that he would take the stand and testify that the doctor was confined to the hospital and that his testimony was not available. He continued by saying: "Dr. Kennedy is my witness. If I fail to produce him, the defense has a right to comment upon that fact, and I feel that I am entitled to explain his absence to the jury. If I have done it in a manner that has created some misunderstanding or misguidance on behalf of the jury, I will be glad to rectify that by my testimony. It is just that under the law the prescribed time does not exist to get his testimony, and for that reason I don't think there is any ground for granting mistrial at this time."
The court overruled the motion for a mistrial "without any further testimony or explanation of the point."
The defendant concedes that the plaintiff had a right to explain that Dr. Kennedy was unable to appear but contends that the statement of plaintiff's counsel that he had been unable "to reach an agreement with counsel for the defendant" about Dr. Kennedy's testimony required that a mistrial be declared because it led the jury to believe that the defendant was attempting to conceal unfavorable medical testimony.
There are many things that occur in the trial of a case over which the judge is allowed that latitude of decision which we call discretion. Arguments of counsel, colloquy between them, statements made in the course of trial and a score of other occurrences may bring to the jury impressions which breed prejudice or lead them to the consideration of issues not presented by the evidence. Then there are also the border line incidents which may or may not improperly affect the jury in reaching a just verdict. When confronted with any such situation the trial judge is obliged to determine first if the matter is prejudicial and then, if so, whether its effect can be erased by an admonition to the jury, or if it calls for him to declare a mistrial. We will not disturb the ruling of the trial judge unless it appears that there has been a manifest abuse of discretion. The emphasis given a statement is not apparent from the record; gestures are not there for us to view and neither can we see the faces of the jurors. All of these and the elements that make up the atmosphere of the trial are before the judge as he rules and it is with this in mind that appellate courts scan the record in passing upon his ruling. Goyette v. St. Louis-San Francisco Ry. Co., Mo.Sup., 37 S.W.2d 552; Baumhoer v. McLaughlin et al., Mo.App., 205 S.W.2d 274; Couch v. St. Louis Public Service Co., Mo.App., 173 S.W.2d 617; Adams v. Carlo, Mo.App., 101 S.W.2d 753.
We are cited to no authorities in support of the defendant's position and it is not apparent that the statement made would convey to the jury any idea derogatory to the defendant's interest. The mere assertion that no agreement had been reached with the defendant concerning the testimony of the doctor appears to have been a statement of fact. It was addressed to the court and could have conveyed no meaning of any kind to the jury. The statement could have been easily explained but the court did not consider it of sufficient importance. There is nothing in the record to indicate that the ruling of the trial court was an abuse of discretion, and the point must be ruled against the appellant.
A further reason in support of the trial court's ruling is that the testimony the witness in question was to give only related to plaintiff's injuries. If the jury were led to believe that the defendant was concealing medical testimony favorable to the plaintiff it would be logical to assume that a larger verdict might be returned than otherwise, but there is no contention that the verdict is excessive.
During the course of the cross-examination of the street car operator counsel for the plaintiff asked him how many names of witnesses he took at the scene of the accident. At this point the defendant interposed an objection stating in substance that an unfavorable inference could be drawn from the question and since the defendant was obliged by law to furnish the names of witnesses taken the question was improper. The court overruled the objection. Then counsel for the plaintiff apparently reading from a list of witnesses supplied by the defendant asked the operator, "Did you get the name of Mr. Bourbon?" and the answer was, "I do not know." The same question was asked in relation to each of the nine names on the list and the same answer was given.
To all of this defendant's counsel made the same objection and now contends: "To permit examination of a party or its agents or servant concerning the fact that names of witnesses were obtained at the scene of an accident would permit an unfavorable inference to be injected into the case by indirection when it would be reversible error to do so directly in argument."
In the case of Belding v. St. Louis Public Service Co., 358 Mo. 491, 215 S.W.2d 506, loc. cit. 514, the court stated: "There is no dispute concerning the governing principle, i. e., that no inference may be drawn, and no unfavorable comment made by counsel on account of the non-production of witnesses whose evidence is equally available. There was no showing that the passengers whose names were under control of defendant were employes of defendant, or that there was any relationship between them and the company other than that of carrier and passenger. With the expeditious and inexpensive way open to plaintiff under the new Civil Code, § 85, Civil Code, Laws, 43, p. 379, § 847.85, Mo. R.S.A., to procure the names in question, we think that, so far as availability of such witnesses is concerned, the parties stood in the same position, in a legal sense, and that the argument exceeded the bounds of legitimate advocacy to such an extent as to constitute reversible error."
That case had to do with the argument of counsel but there is no reason why the same principle should not extend to cross-examination where such cross-examination is conducted so as to create the impression that a material witness has been withheld by the adversary when that witness is equally available to both parties.
It is apparent that it would be possible by means of cross-examination to inject the same type of inference as might be erroneously stated in argument. It does not appear, however, that the interrogation complained of went that far. The operator had taken the names of witnesses and plaintiff's counsel stood with the list of those names in his hand as he questioned the operator. Five of the witnesses had testified. It was evident that the names of all of them were known to plaintiff and nothing was said in relation to a failure on the part of defendant to call the others. The defendant was at the time putting on its case and might have intended to call the other witnesses for all that was apparent at the time. It did as a matter of fact call one. The interrogation appears pointless but we fail to see how any unfavorable inference could have arisen from it.
The remaining assignment of error has to do with the argument of plaintiff's counsel. He stated:
"I want to talk a little bit about the evidence here. I tried to bring you every fact. I tried to bring you every witness. I tried to bring you everyone that I could. * * *
"Now, they want you to believe the motorman. They want you to believe Mr. Bourbon. And they had a claim agent out to see Mr. Bourbon the next day before the blood was dry. Talk about who you are going to believe, do you think that little colored girl that goes to Obligata Convent across the street from the accident saw this streetcar come down? And let me tell you, too, another thing. This motorman who got the names of eight witnesses there at the scene of the accident, and who went to extensive preparation to pace the thing off, and they took picture of the streetcar the very next day."
The defendant asserts that the remarks violated the rule that no unfavorable inferences may be drawn on account of the nonproduction of witnesses whose evidence is equally available to both parties. We are cited to Belding v. St. Louis Public Service Co., above quoted, and Atkinson v. United Railways Co., 286 Mo. 634, 228 S.W. 483, 484. The argument of counsel in the Belding case was as follows: "I have done my very best as an officer of this Court to bring before you the testimony upon which we sought a recovery and we seek a recovery. I didn't try to keep any of the witnesses away from this Court. There were a number of witnesses who knew something about this accident who are under the control of this defendant, or whose names are under the control of this defendant, but they didn't — ".
The argument in the Atkinson case was similar in nature. There the court said: "Mr. Kelley: They had this doctor in this case with the report — it is admitted in this record at Mr. Priest's own request, that Dr. M. A. Bliss, a neurologist of note in this city, to make an examination, at their cost and expense, of the plaintiff in this case. * * * Why didn't Dr. Bliss come on here, if there is nothing the matter with her nervous system, and tell you? Why didn't they put him on the stand?"
It may be readily seen that in both of those cases there were direct statements that the defendant failed to produce a material witness which the court held was equally available to both parties. We find nothing comparable in the argument under consideration. It is rather incoherent but the burden of its meaning seems to be that the plaintiff brought all her witnesses to court and that the defendant displayed prompt zeal at the time of the accident in seeking to exonerate itself. We cannot therefore hold that the remarks were subject to the objection raised.
For the reasons above stated, it is the recommendation of the Commissioner that the judgment be affirmed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly affirmed.
ANDERSON, P. J., and HUGHES and McCULLEN, JJ., concur.