Murphy v. Gillum

BOND, J. This is the second appeal in this case. (73 Mo. App. 487.) The suit is for damages alleged to have been occasioned by the flow of water over plaintiff’s land which seeped through the bank of a pond on defendant’s land. There was a verdict and judgment for plaintiff for $60, $30 of which was remitted and defendant’s motion for new trial being overruled, he appealed to this court, where he complains of the instructions given and refused, of the exclusion of evidence, and the remarks made by plaintiff’s attorney in his argument to the jury. There is no merit in the first assignment of error.. The instructions for plaintiff accord with the views of the majority of the court expressed in the former opinion. The instruction offered by defendant and refused by the court is a copy of the one offered before, and as its refusal on the former trial was not deemed error, the trial judge had a right to assume that it should be refused on the second trial. This assignment is therefore ruled against appellant. It is insisted that the remarks of the counsel for plaintiff to the jury “that he did not ask a verdict because his client was poor and the defendant rich” is ground for reversal. This point can not be sustained. The record shows that the trial court promptly reprimanded the attorney for making this remark, and it nowhere shows that it had any prejudicial effect on the minds of the jury. Neither was there any error in excluding the statement of plaintiff’s counsel preserved in the bill of exceptions taken after the first trial to the effect that he did not then contend that the pond was faultily built or improperly kept. The theory [566] of bis cause of action then maintained by plaintiff was t-bat the liability of defendantwasabsoluteonproof of the factof injury by percolating water, and did not depend on the proper construction or maintenance of the pond. The admission in question was made to restrict the issues on the trial then in progress. It ought not to be held to bind the plaintiff on a new trial whereon new issues were presented to the jury. There being no grounds for reversing this judgment under the former opinion, it will be affirmed. All concur.