Tuck v. Springfield Traction Co.

NIXON, P. J. (after stating the facts).— I. One of the grounds assigned as error in this case is that the petition is not sufficient and that the allegations are too general to authorize a recovery. It is to be noted that no objection was made to the petition until after answer had been filed, and that the objection then only went to the introduction of evidence. While some objection may be justly made to the form of the petition as not being very artistic, it is sufficient to apprise the defendant of the acts complained of and upon which its culpability rested. It is true that the petition is not very specific, but generality in the charge of negligence is not a fatal objection after the filing of an answer. [Foster v. Missouri Pacific Ry. Co., 115 Mo. loc. cit. 177, 21 S. W. loc. cit. 919; Conrad v. De Montcourt, 138 Mo. 311, 39 S. W. 805; Durham v. City of Bolivar, 106 Mo. App. 601, [340] 81 S. W. 463; Mack v. St. Louis, K. C. & N. R. Co., 77 Mo. 232; Shaw v. Missouri Pacific Ry. Co., 104 Mo. 648, 16 S. W. 832.] It is also' noted that this petition is not alone confined to a general charge of negligence, but it sets out in what the negligence consists in a manner sufficient to apprise the defendant of the particular and special negligence upon which defendant’s liability was sought to be established. It specifically charges that the servants of the defendant negligently ran a car of the defendant and struck the plaintiff without any signal or warning. This would be a sufficient statement in the absence of any attack by a motion to make the petition more specific. If the 'defendant was in any doubt as to the particular nature of the charge made, the law has provided an ample remedy by which the defendant would have been enabled to ascertain the particulars and would have been enabled to prepare its defense. But the defendant seemed satisfied and was able to make a very complete defense, and only brought to the attention of the court the defect, if any, in the petition, after the trial had in fact commenced. This is a practice not to be commended. Wei find that the petition was entirely sufficient to sustain the verdict. II. Some complaint is made about a certain remark of the trial judge during the introduction of evidence. Evidence was being introduced as to whether plaintiff’s counsel was receiving a contingent fee for the prosecution of the case, and the. trial judge made the casual remark that it was probably the usual fee. We think that the attempt to raise this trivial objection to the magnitude of an assignment of error is an illustration of a gigantic effort to make a mountain out of a mole-hill. III. The further objection is urged that there was no proof sufficient to warrant a verdict as to the negligence of the defendant. We think this view can [341] not be seriously entertained when the evidence is examined in this case. There is abundant evidence tending to show the liability of the defendant and that the plaintiff was exercising proper care at the time the accident occurred. The evidence, it is true, was conflicting. In such cases, we cannot invade the constitutional right of trial by jury. The weighing of the evidence and the credibility of the witnesses is committed by law to the jury. The existence of negligence is a fact to be proved, and whether negligence or care exists in a given case is peculiarly and exclusively for the jury to determine. [Cook v. Missouri Pacific Ry. Co., 19 Mo. App. 329; McPheeters v. Hannibal & St. J. R. Co., 45 Mo. 22; Yarnall v. St. L. & K. C., S. R. Co., 75 Mo. loc. cit. 583; Burger v. Missouri Pacific Ry. Co., 112 Mo. 238, 20 S. W. 439, 34 Am. St. Rep. 379.] IV. Some objection is also made to the instructions given in this case. Upon the most careful examination, we find that such objection is untenable and that the trial judge in this case gave the defendant all the instructions it was entitled to, and that no just criticism can be made on that account. V. The only question remaining of sufficient magnitude to deserve attention relates to the remarks of D. W. Davies, attorney for the plaintiff, during the trial of this case. It is claimed that the remarks and conduct of Mr. Davies in his argument to the jury are without precedent and that the judge trying the case should not have allowed such conduct to go unchallenged. Among other statements made by Mr. Davies, the following language was used: “Mr. Delaney has not tried this case fair and does not want the facts to come out. At the start he commenced objecting and objected all through the case and all through the case was asking the court to reprimand us. Mr. Delaney objected to every question we asked. That is his defense. He objected and objected and objected. It is an outrage — that kind of an exami [342] nation. — and ought not be tolerated in this State or any other State.” Mr. Delaney then said: “Your honor, we object to such argument. We had a right to object to evidence and we ask the court to so state to the jury.” The court declined, whereupon Mr. Davies continuing, said: “Mr. Delaney is still objecting. Then we put back on the stand a man who saw them working on the gong, trying to get it to ring before he started. What does that mean? Mr. Delthrow says that they were working on it trying to get it to ring. He got down and looked under the car and was working on it, and there is the time that the other side was objecting.” “They did object to it and it went in and it is before the jury right now and you can’t bluff anybody off the track in this case. You have tried it all the way through. You tried it from the start. At the very outset of the case, you tried it. You have tried to be unfair.” Over the objection and exception of counsel for defendant, counsel for plaintiff was allowed to proceed without restraint, admonition or reprimand. We have made these quotations as examples of the language the trial judge allowed the attorney for plaintiff to use before the jury. It is unnecessary for us to say that such remarks and conduct are reprehensible in the highest degree, and that the court should not only have admonished the attorney to desist, but, if he continued, should have reprimanded him, and if this did not prove sufficient, should have punished him for contempt of court. One of the first duties of the judge of a trial court is to preserve order and require that the attorneys as well as other persons should, by their behavior, show a decent respect for the court and for the opposing counsel. We quote with approval in this connection the language of Judge Gantt in the case of Haynes v. Town of Trenton, 108 Mo. loc. cit. 133, 18 S. W. 1003. He said: “The disposition of this court is to permit the greatest latitude in the argument [343] of a cause to a jury. But its disposition to trust largely to the discretion of the trial courts must not be construed that we will, on that account, tolerate the clear disregard of a litigant’s right to have his cause heard ánd tried according to the law of the land. The conduct of counsel for plaintiff in making these and similar statements can not be excused. Counsel will not be permitted to wring verdicts from juries by statements extraneous to the record, and rely upon our disinclination to interfere.” And in this case, we have to say that error was committed; but while we find that such was the case, upon a careful consideration we have concluded that outside of the objectionable remarks and conduct of counsel, the verdict of the jury was for the right party, and, as we are prohibited from reversing cases unless there was error in the trial court materially affecting the merits of the case, we have decided that although the remarks were exceedingly objectionable and should have received at the hands of the trial judge the severest condemnation, yet on that ground alone, the verdict being for the right party, we cannot reverse the judgment, and the same is accordingly affirmed. All concur.