Fathman v. Tumilty

Biggs, J., delivered the opinion of the court. This is an action on account to recover balance due plaintiff for wages. Plaintiff claimed in his petition, that he had worked forty-three months for defendant, and that the work so performed by him was reasonably worth fifteen dollars per month, which amounted in the aggregate to six hundred and forty-five dollars. The defendant at divers times had paid plaintiff $407.70. Defendant made a general denial. There was a trial by jury which resulted in a verdict of $193.85 for plaintiff. The only issue of fact on the trial, was the reasonable value of plaintiff’s work. Plaintiff’s testimony tended to prove that his services were worth fifteen dollars per month, and defendant’s evidence showed that ten dollars per month was fair compensation. That plaintiff did not work like an ordinary farm hand. That his work consisted chiefly of feeding and looking after defendant’s stock. That he would go hunting when he wished, attend the St. Louis Pair, and was not required to work in bad weather. There was no dispute as to the time he worked and there was no real controversy as to the amount of the credits. Plaintiff said that his account showed that he had only received $407.70, but he might have received as much as $451.15, the amount defendant claimed to have paid. The jury allowed plaintiff fifteen dollars per month for forty-three months, making six hundred and forty-five dollars, from which was deducted $451.15, amount of payments made and claimed by. defendant. There was testimony to sustain this verdict and the objection made by the defendant’s counsel, that the verdict is against the evidence and weight of evidence must be [240] disregarded. When there is any substantial evidence to sustain the verdict, the judgment will be upheld by the appellate court. The jury returned into court a verdict for six hundred and forty-five dollars, and had neglected to give defendant credit for the amount paid by him. The court treated this as an informality and deducted from the amount so stated in the verdict, the sum of $451.15, the amount of payments claimed by defendant, leaving the amount of the verdict, as reformed by the court, one hundred and ninety-three dollars and eighty-five cents, this latter verdict was signed by the foreman and agreed to by the jury, without leaving the box for further consultation. Counsel for defendant insist that the objection to the verdict was not formal, but the verdict was substantially defective in failing to find a material issue in the case. The issue was material, but it was not a controverted issue. For this reason, we think the defect or omission in the verdict was merely formal, and therefore no error was committed by the court' in correcting it. But even if the amount of the payments made by defendant had been a matter of contention at the trial, yet the court and jury deducted the amount which defendant claimed to have paid, and we cannot see how this in any way prejudiced the defendant. If the jury had failed to give defendant credit for the full amount claimed by him, then this would have been reversible error. R. S., sec. 3775. Defendant also complains of statements made by plaintiff’s counsel in the final argument to the jury. In ordinary cases, appellate courts will not interfere with the discretion of trial courts in such a matter. In Thompson on Trials, section 964 the author says : “ That it is only in cases where the court has refused to exercise its powers, or when its discretion has been manifestly abused, by permitting prejudicial matters to be [241] rehearsed to the jury in argument, that appellate courts will interfere. In case of Sidekum v. Railroad, 93 Mo. 407, the court lays down the doctrine, that if improper arguments to the jury are made and persisted in by counsel, and objection made and exception saved, it may be good ground for new trial or for reversal. In the case at bar, the matters complained of in the closing argument of plaintiff’s counsel, were highly improper. Counsel said : “ The plaintiff in this case is a ‘Dutchman’ and the defendant is a son of an ‘ Irishman,’ and it is nothing but an attempt on the part of an ‘Irishman’ to beat a ‘Dutchman’ out of an honest debt.” ' There was no testimony in the case as to the nationality of either party, and defendant’s counsel objected and excepted to this statement, because it was calculated to excite the prejudice of the jury against defendant. Whether this statement had the effect claimed by defendant or not, we cannot positively say. While there is no testimony as to the nationality of the jurors, yet their names, as preserved in the record, are highly suggestive of “German lineage.” The counsel continuing said: “It is absurd to think of the plaintiff working for less than fifteen dollars per month. You know that good men like Fathman do not work for ten dollars a month. I have been hiring men all my life and know what the wages are. I never gave aman less than fifteen dollars per month.” To this statement defendant’s counsel objected and excepted. If plaintiff’s attorney thought that his own testimony was necessary to make out his client’s case, he should have been sworn as a witness and submitted to a cross-examination. It was the duty of the court to rebuke the attorney for making such a statement, and in such a way as to leave no doubt in the minds of the jurors, as to the impropriety of his conduct. The plaintiff’s attorney may be, and doubtless is, a man of [242] Mgh. standing among Ms fellow citizens, and such, a statement by him, would, with the ordinary juror, have as much weight as if delivered from the. witness stand. For this reason, it is the duty of lawyers, and especially lawyers of good standing to confine their arguments to the evidence in the case. Gibson v. Zeibig, 24 Mo. App. 65; Holliday v. Jackson, 21 Mo. App. 669, 670. It is with great reluctance that we reverse the judgment. Nor would we do it, did we not have reason to believe, that the amount of the verdict might have been the result of the statements made by plaintiff’s counsel to the jury. The other errors complained of by defendant will not likely arise on another trial, and it therefore becomes unnecessary to consider them. The judgment is reversed and case remanded. All concur.