Opinion
No. 41916.
April 9, 1951. Motion for Rehearing or for Transfer to Court En Banc Denied May 14, 1951.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, MICHAEL J. SCOTT, J.
Coburn, Storckman Croft, Thomas L. Croft and Edward E. Murphy, Jr., all of St. Louis, for appellant.
Mortimer A. Rosecan, Charles E. Gray, and Chelsea O. Inman, all of St. Louis, for respondent.
Plaintiff Agnes McGinley obtained a verdict in the amount of $25,000 as damages for personal injuries alleged to have been sustained as a result of a fall while she was alighting from one of the defendant's streetcars. The trial court overruled a motion for new trial on condition that plaintiff enter a remittitur in the sum of $12,500. Plaintiff complied and the defendant appealed.
The verdict was rendered on October 19, 1949. On October 28 a motion for new trial was filed. On January 24, 1950, the trial court entered an order containing the following: "* * * that if plaintiff will within ten days remit the sum of $12,500.00 from the judgment of $25,000.00, defendant's motion for a new trial will be overruled, otherwise sustained on the ground the verdict is excessive." It will be noted that the order was made 88 days after the motion for new trial was filed. On January 27, 1950, the ninety-first day after the filing of the motion for new trial, plaintiff entered a remittitur as ordered by the court. On the same day the court entered an order overruling the motion for new trial.
Respondent contends that the motion for new trial was overruled for all purposes on January 26, 1950, which was ninety days from the day it was filed, citing Section 510.360, Mo.R.S. 1949. Respondent says the order of the court made on January 24 was not a final order overruling the motion and that the remittitur of plaintiff filed after the ninety days was a nullity.
This same question was presented to the court en banc in the case of Steuernagel v. St. Louis Public Service Co., Mo.Sup., 238 S.W.2d 426. The court en banc decided the point raised in this case adversely to respondent's contention and on the authority of that case respondent's point is overruled.
Respondent filed in this court a motion for permission to withdraw the remittitur entered in the trial court. In view of the circumstances the permission is denied. At the time the motion was filed the Steuernagel case was pending before the court en banc by virtue of a transfer of the case from Division Two of this court. Division Two had ruled that the order of the trial court made ninety days after the motion was filed was a nullity and that the motion for new trial was overruled by operation of law notwithstanding the conditional order of the trial court made before the ninety days had passed.
On the merits of the case we find the evidence to show the following: On October 17, 1948, plaintiff was a passenger on one of defendant's Creve Coeur streetcars. When the car was stopped at Buchanan Avenue, which was plaintiff's destination, she walked to the front of the car to get off. Plaintiff's evidence was that when she was on the step of the streetcar in the act of alighting therefrom, the streetcar moved causing her to fall and break her left hip. The defendant's evidence was that plaintiff fell after she had stepped off the car and that the car did not move while plaintiff was on the steps. A jury found for plaintiff and there was substantial evidence to support the finding.
The principal points briefed and relied on by appellant for a reversal of the judgment pertain to the argument to the jury by plaintiff's counsel and to certain allegedly prejudicial statements made during the course of the trial. Appellant in its brief refers to three separate instances in the argument of plaintiff's attorney claiming prejudice resulted. Defendant made no objection to any of these while the argument was made. Appellant says this court may consider the points under Rule 3.27 of this court.
We shall consider the most serious of these which is that in plaintiff's argument defendant's counsel was accused of having suborned perjury. If such an argument were made it would have been improper. However, we find the charge not supported by the record. Plaintiff's counsel did state that the defendant's witnesses had been "coached" and someone had "planted the germ of a decrepit, crippled woman in their minds, because they all have noted that * * *." It is true that most of the defendant's witnesses testified that plaintiff had difficulty in walking in the streetcar and in getting off. One stated he noticed she walked as if she needed assistance; another said that she seemed feeble; while another said that she walked as though she had rheumatism. Defendant's counsel in his opening statement had informed the jury that such evidence would be introduced. It was defendant's theory that plaintiff due to her age and physical condition fell without any fault on the part of the operator of the streetcar. Plaintiff introduced evidence that she was healthy and active, much more so than the average woman of her age. At the time of her injury, plaintiff was seventy-three years old, 5'5" tall, and weighed 174 lbs. We believe there was an honest difference of opinion as to whether she was active or appeared to be feeble. Coaching of witnesses does not imply suborning perjury. A witness may be coached as to what points are material to the issues in the case. Any attempt to get a witness to tell an untruth is highly improper and criminal. Plaintiff's counsel on several occasions during the argument stated that all witnesses were trying to tell what occurred. Note the following: "I think that Miss McGinley and those witnesses can be right. I think the streetcar could have moved and they didn't observe it. They didn't know an accident was going to take place. Their observation was not sharpened to that. Their attention was not directed to that. They didn't know, either, questions would be asked a year later. They paid no attention. One man was coming back from work and was relaxing. He was resting. He doesn't know."
While a witness for the defendant was being cross-examined, he was asked questions concerning a statement signed by the witness. Defendant asked plaintiff's counsel to be allowed to see the statement. Permission was granted. Then the following occurred:
"Mr. Rosecan: (Addressing Mr. Croft) Did you want to show me your statement?
"Mr. Croft: I haven't offered them in evidence.
"Mr. Rosecan: Nor have I.
"Mr. Croft: Anything that is shown to a witness, opposing counsel has a right to see.
"Mr. Rosecan: You don't agree to let me see them?"
Defendant objected to the statement and asked the court to declare a mistrial. The court ruled as follows:
"The Court: Overruled as to the mistrial. The Court will instruct the jury to disregard the statements of counsel with reference to the statement."
The conduct of plaintiff's counsel was improper. However, we cannot say that the trial court abused its discretion in not declaring a mistrial. Such matters rest largely within the discretion of the trial court. 46 C.J. 406, Section 465, and 410, Section 468; 66 C.J.S., New Trial, § 201. In Ryan v. Sheffield Car Equipment Co., Mo.App., 24 S.W.2d 166, loc. cit. 169 (5), cited by appellant, the court reversed and remanded the case for retrial because of misconduct of plaintiff's lawyer. The situation there was much more serious than is shown by the facts in the present case. Counsel in the Ryan case failed to heed the ruling of the court and continued with improper argument. The Kansas City Court of Appeals held, and properly so, that the judgment in plaintiff's favor should be reversed. In the case before us, the trial court directed the jury to disregard the statements and that ended the matter.
Appellant also complained that plaintiff introduced evidence with reference to the defendant's streetcars on the Creve Coeur line, i. e., that they were old cars. The fact that the streetcars were old was not an issue in the case. However, the defendant introduced in evidence photographs of the streetcar in question and some of defendant's witnesses described the car. We do not see wherein there was any prejudice. One of the defendant's witnesses testified the streetcar did not move while plaintiff was getting off. He was asked on cross-examination if it could have moved without his noticing it. Note the question and his answer:
"Q. I would say if it took a severe jolt you could feel it; but have you observed sometimes when you are sitting on a streetcar, have you ever looked out a window and saw the streetcar was in motion and you didn't even feel it in motion? A. No, not the kind we have on the Creve Coeur line."
Other matters complained of in the brief were not preserved for review either because no objection was made, or because they were not mentioned in the motion for a new trial.
In the last point briefed defendant contends that the judgment in the sum of $12,500 is grossly excessive. The trial court considered this question and by remittitur reduced the amount from $25,000 to $12,500. In view of the evidence in this case we cannot say the verdict is excessive. Plaintiff had been employed as a vest maker and earned about $1,500 per year. She had been a healthy, active woman. Due to her injury plaintiff will not be able to resume her occupation. She was in a hospital for about three months and was confined to her bed at home for some weeks. The injury caused much pain and plaintiff will continue to suffer pain. She will probably undergo another operation for the purpose of removing a steel pin which was used to hold fragments of bone in place. Her hospital and doctor bills were about $1,700. Loss of wages up to the time of trial was about $1,500.
The cases cited by defendant such as Turner v. Central Hardware Co., 353 Mo. 1182, 186 S.W.2d 603, 158 A.L.R. 1402, and Taylor v. Lumaghi Coal Co., 352 Mo. 1212, 181 S.W.2d 536, do not convince us that we should further reduce the judgment in the case.
The judgment is affirmed.
BOHLING and BARRETT, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
All concur.