Opinion
No. 40480.
March 8, 1948. Motion for Rehearing or to Transfer to Banc Overruled, April 12, 1948.
1. NEGLIGENCE: Pleading: Petition Sufficient. The petition was not attacked by motion and is sufficient after verdict even though its allegations of negligence are very indefinite.
2. NEGLIGENCE: Motor Vehicles: Injury During Unloading of Truck: Instruction Sufficient. Plaintiff's instruction was sufficient to cover the general negligence of defendant's driver in permitting defendant's truck to roll back while plaintiff was in a position of danger between the truck and a loading dock where the truck was being unloaded.
3. TRIAL: Evidence: Question as to Plaintiff's Children: Mistrial Not Required. While a question as to whether plaintiff was the father of seven children would have justified the declaration of a mistrial, the trial court did not abuse its discretion in refusing to take such action after sustaining an objection to the question and directing the jury to disregard the answer.
4. TRIAL: Evidence: Hospital Records Not Submitted to Jury: Discretion of Trial Court. If there was an oral agreement between counsel during the trial that the hospital records should be submitted to the jury, the court was not asked to approve the same. There was no abuse of discretion when the court failed to turn the records over to the jury, but agreed that the jury might have them upon request.
5. TRIAL: Witnesses: Employer and Fellow Employees Equally Available: Comment on Failure to Produce. Plaintiff's employer and fellow employees were equally available to both parties and it was not error to refuse to permit defendant's counsel to comment on the failure of plaintiff to produce such witnesses.
6. TRIAL: Jury Argument: No Objection. The argument of plaintiff's counsel was not so prejudicial as to require a mistrial, no objection having been made at the time.
7. DAMAGES: Verdict Not Excessive. A verdict of $15,000 for a sacro-iliac injury was not excessive.
Appeal from Circuit Court of City of St. Louis. — Hon. Harry F. Russell, Judge.
AFFIRMED.
Thomas J. Cole and John J. Cole for appellant
(1) The court erred in submitting the case to the jury, and having thus erred repeated the error in not sustaining the motion for new trial for the reason the petition does not state facts on which relief should be granted. In other words, the petition wholly fails to state a cause of action. Sec. 36 of Code, Laws 1943, p. 369; Langenberg v. City of St. Louis, 197 S.W.2d 621. (2) The court erred in giving and reading to the jury Instruction 1, as it is not within the pleadings nor the evidence and proceeds on an entirely different theory and allows recovery without requiring proof of any causal negligence on defendant's part. Krelitz v. Calcaterra, 33 S.W.2d 909; Brandt v. Farmers Bank, 177 S.W.2d 667; State ex rel. Newspaper Assn. v. Ellison, 176 S.W. 11; State ex rel. Central Coal Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; 38 Am. Jur., pp. 665-666. (3) The court erred in not declaring a mistrial as requested because of plaintiff's counsel's improper statement while plaintiff was on the stand that, "You are the father of some seven children, I believe." Ex parte Dick Bros. Brewery Co. v. Ellison, 287 Mo. 139, 229 S.W. 1059; 64 C.J., p. 280, sec. 298; McCarthy v. Spring Valley Coal Co., 232 Ill. 473, 83 N.E. 957; Dayharsh v. Hannibal St. Joseph R. Co., 103 Mo. l.c. 577; Stephens v. Hannibal St. Joseph R. Co., 96 Mo. 207. (4) The court erred in not handing the jury the hospital record as the parties, through their attorneys, had stipulated that it would be given to the jury. Bankers Life Co. of Des Moines v. Butler, 122 S.W.2d 1077; Dallas Ry. Terminal Co. v. Durkee, 193 S.W.2d 223. (5) The court erred in permitting plaintiff's counsel to make a highly inflammatory argument to the jury and in not reprimanding counsel for so doing and in not telling the jury to disregard such appeals to passion and prejudice. N.Y. Central R. Co. v. Johnson, 279 U.S. 319; London Guarantee Accident Co., Limited, v. Woelfle, 83 F.2d 325; Contra — Copeland v. Terminal Railroad Assn., 353 Mo. 433, 182 S.W.2d 600 . (6) The court erred in not setting aside the verdict because its large amount is proof of the fact it was inspired by passion and prejudice on the part of the jury. It is plainly and grossly excessive. (7) The court erred in not permitting defendant's counsel to argue that if plaintiff's fellow-workers or his bosses felt he was injured, plaintiff would have produced them as witnesses. Waeckerly v. Colonial Baking Co., 228 Mo. App. 1185, 67 S.W.2d 779; McInnis v. St. Louis Southern, 341 Mo. 677, 108 S.W.2d 113; Cooper v. Met. Life Ins. Co., 94 S.W.2d 1070; Huskey v. Met. Life Ins. Co., 94 S.W.2d 1075. Mark D. Eagleton, Mortimer A. Rosecan and Wm. H. Allen for respondent.
(1) A general charge of negligence, which is predicated on an act of the defendant causing the injury, is good as against the objection that no cause of action is stated; it is not necessary to state the specific facts showing the negligence in order to state a cause of action. Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601; Zichler v. St. Louis Pub. Serv. Co., 332 Mo. 902, 59 S.W.2d 654; State ex rel. Hopkins v. Daues, 319 Mo. 733, 6 S.W.2d 893; Kramer v. Kansas City P. L. Co., 311 Mo. 369, 279 S.W. 43; Watts v. Moussette, 337 Mo. 533, 85 S.W.2d 487. (2) A petition which charges negligence in general terms, without more, which is not attacked by motion to make more definite and certain, is good after verdict and judgment. Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601; State ex rel. Brancato v. Trimble, 322 Mo. 318, 18 S.W.2d 4; State ex rel. Hopkins v. Daues, 319 Mo. 733, 6 S.W.2d 893; Watts v. Moussette, 337 Mo. 533, 85 S.W.2d 487. (3) The required finding that defendant's chauffeur failed to exercise ordinary care and was guilty of negligence comprehends and is equivalent to a finding that he knew or by the exercise of ordinary care could have known that to operate the hoist, under the circumstances, lifting the end of the box, would cause the truck to move back upon plaintiff. Kamer v. M., K. T.R. Co., 326 Mo. 792, 32 S.W.2d 1075; Messing v. Judge Dolph Drug Co., 322 Mo. 901, 923, 18 S.W.2d 408; Jenkins v. Mo. State Life Ins. Co., 334 Mo. 941, 69 S.W.2d 666; Hulsey v. Tower Grove, Quarry Const. Co., 326 Mo. 194, 30 S.W.2d 1018; Simmons v. Kansas City Jockey Club, 334 Mo. 99, 66 S.W.2d 119; Wellinger v. Terminal Railroad Assn., 353 Mo. 670, 183 S.W.2d 908. (4) It follows that the instruction is within both the pleadings and the evidence. The petition, alleging negligence generally, is broader than the evidence; but the instruction properly submitted the specific negligence shown by the evidence. Grimes v. Red Line Service Co., 337 Mo. 743, 85 S.W.2d 767; Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872. (5) The testimony as to the issues tried came in below without objection, and hence, with the implied consent of the defendant. There was not a suggestion that such issues were beyond the scope of the pleadings. Under such circumstances the issues tried are to be treated in all respects as if specifically raised by the pleadings; and, if need be, the petition may be regarded as having been amended to conform to the evidence. Sec. 82, General Code for Civil Procedure, Laws 1943, p. 378; Philibert v. Benjamin Ansehl Co., 342 Mo. 1239, 119 S.W.2d 797. (6) The trial court did not err in overruling appellant's motion to declare a mistrial because of plaintiff's testimony that he was the father of seven children. The trial court promptly sustained defendant's objection and instructed the jury to disregard the answer. The presumption is that the jury did disregard it. Under such circumstances, the refusal of the trial court to declare a mistrial does not constitute reversible error. Evans v. Mo. Pac. R. Co., 342 Mo. 420, 116 S.W.2d 8; Stith v. Newberry Co., 336 Mo. 467, 79 S.W.2d 447; Grott v. Johnson, Stephens Shinkle Shoe Co., 2 S.W.2d 785; Harrison v. Kansas City Elec. Co., 195 Mo. 606, 93 S.W. 951, 7 L.R.A. (N.S.) 293; Consolidated School District v. West Mo. Power Co., 329 Mo. 690, 46 S.W.2d 174; Snyder v. American Car Foundry Co., 322 Mo. 147, 14 S.W.2d 603; Holman v. Terminal Railroad Assn., 125 S.W.2d 527; Balsano v. Madden, 138 S.W.2d 660; Moses v. Kansas City Pub. Serv. Co., 188 S.W.2d 538. (7) The trial court, in supervising the trial, is clothed with a wide discretion to determine what course should be pursued in the case of objectionable testimony or argument, that is, whether it will suffice to instruct the jury to disregard the same or whether a mistrial should be declared. And the course pursued by the court in any given instance will not be disturbed unless it appears that the discretion reposed in it has been manifestly abused. City of Kennett v. Construction Co., 273 Mo. 279, 202 S.W.2d 558; Kelso v. W.A. Ross Construction Co., 337 Mo. 202, 85 S.W.2d 527; Bobos v. Krey Packing Co., 323 Mo. 224, 19 S.W.2d 630; Crews v. K.C. Public Service Co., 341 Mo. 1090, 111 S.W.2d 54; Stith v. Newberry Co., 336 Mo. 467, 79 S.W.2d 447; Moses v. K.C. Public Service Co., 188 S.W.2d 538. (8) The action of the trial court at the close of the case in not giving to the jury the hospital records to take to the jury room, stating that all exhibits would be available to the jurors if they should ask for them, did not constitute error. Under our law, what documents or other exhibits should be taken by the jurors to the jury room is a matter to be determined by the trial court in the exercise of its discretion. State v. Damon, 350 Mo. 949, 169 S.W.2d 382; Dougherty Real Estate Co. v. Gast, 95 S.W.2d 877; R.C. Stone Milling Co. v. McWilliams, 121 Mo. App. 319, 98 S.W. 828. (9) Plaintiff's counsel made no remarks of an inflammatory character; none tending to arouse hostility or resentment toward defendant. And whether remarks of counsel in argument are prejudicial is always a matter of resting largely within the discretion of the trial court, whose rulings thereon will not be disturbed on appeal except for manifest abuse of such discretion. Cordray v. City of Brookfield, 88 S.W.2d 161; Burow v. Red Line Service, 343 Mo. 605, 122 S.W.2d 919; Goyette v. St. Louis-S.F. Ry. Co., 37 S.W.2d 552; Crews v. Kansas City Pub. Serv. Co., 341 Mo. 1090, 111 S.W.2d 54. (10) The record (and plaintiff's brief as well) discloses that appellant's counsel did not interpose a word of objection to the argument of plaintiff's counsel now complained of. It is the settled law of this state — whatever it may be in other jurisdictions — that complaint cannot be made on appeal of alleged improper argument to which no objection was interposed below. Randol v. Kline's, Inc., 330 Mo. 343, 49 S.W.2d 112; Leingang v. Geller, Ward Hasner, 335 Mo. 549, 73 S.W.2d 256; Dodd v. Missouri-Kansas-Texas R. Co., 353 Mo. 799, 184 S.W.2d 454; Kent v. L.B. Price Mercantile Co., 17 S.W.2d 983. (11) A trial court, in supervising the amount of a verdict, is clothed with discretionary power the exercise of which will not be disturbed on appeal except for obvious abuse thereof. Gieseking v. Litchfield Madison Ry. Co., 344 Mo. 672, 127 S.W.2d 700; Schroeder v. Wells, 298 S.W. 806. (2) And this court is thoroughly committed to the doctrine that appellate courts "should not disturb a verdict for damages on the theory that it is excessive unless it is apparent from the record that the verdict is grossly excessive"; that it is "unmistakably beyond the bounds of reason." Plater v. Kansas City, 334 Mo. 842, 68 S.W.2d 800; McNatt v. Wabash Ry. Co., 341 Mo. 516, 108 S.W.2d 33; Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721; Capstick v. T.M. Sayman Products Co., 327 Mo. 1, 34 S.W.2d 480. (13) No unfavorable inference may be drawn and no unfavorable comment may be made by counsel in argument on account of the non-production of a witness whose testimony was equally available to either party. In re Thomasson's Estate, 347 Mo. 748, 148 S.W.2d 757; Rothschild v. Barck, 324 Mo. 1121, 26 S.W.2d 760; Winkler v. Pittsburgh, etc., R. Co., 321 Mo. 27, 10 S.W.2d 649; Miller v. Collins, 328 Mo. 313, 40 S.W.2d 1062. (14) Furthermore, plaintiff's testimony that since returning to work, after his injury, he has been unable to do work requiring stooping, bending and lifting, was corroborated by Dr. Pernoud and by plaintiff's witness Cenatienpo who worked with plaintiff before and after the latter's injury. No unfavorable inference could be drawn from the fact that plaintiff did not continue to call witnesses to give cumulative corroborating testimony touching the matter; consequently the comment of defendant's counsel, to which objection was sustained, was unwarranted, and there was no error in sustaining the objection thereto. Roehl v. Ralph, 84 S.W.2d 405; Miller v. Fleming, 259 S.W. 139; Anno. 135 A.L.R. 1375, 1376; Coosa Portland Cement Co. v. Crankfield, 202 Ala. 379, 80 So. 451; Central of Georgia R. Co. v. Bernstein, 113 Ga. 175, 38 S.E. 394; United R. Electric Co. v. Cloman, 107 Md. 681, 69 A. 379; Baldwin v. Brooklyn Hts. R. Co., 98 A.D. 496, 91 N.Y.S. 59; Denbleyker v. Public Service Coordinated Transport, 11 N.J. Misc. 101, 164 A. 695; Fulson-Morris Coal Min. Co. v. Mitchell, 37 Okla. 575, 132 P. 1103; Schiffler v. Kissell, 103 W. Va. 545, 138 S.E. 107; Ben Realty Co. v. Gothberg, 56 Wyo. 294, 109 P.2d 455; 1 Jones on Evidence (2d Ed.), p. 175, sec. 107; 64 C.J., pp. 270, 271, sec. 290.
The plaintiff, Mathias Holtz, was employed by the Day-Brite Lighting Company. It was his duty to assist in loading and unloading trucks. On the 25th day of September 1945 the appellant, Daniel Hamm Drayage Company, delivered a "case of steel, aluminum moulding" to the Day-Brite Company. The case of steel was a box sixteen feet long, about four inches square and weighed 440 pounds. The case extended out and over the bed of the appellant's truck about two feet. When the truck was backed up to the loading dock the case of steel on the truck was lower than the deck of the dock, consequently the truck was stopped about two feet from the dock. The steel was to be unloaded from the truck with an electrical hoist. Holtz got down off the loading dock and stood between the truck and the dock to fasten the hoist chain around the crate of steel. After he had fastened the chain and it was taut the appellant's driver, standing on the loading platform, pulled the rope setting the hoist in operation, and when the weight of the crate of steel was lifted from the truck bed the truck rolled back pinning Holtz between the dock and the truck bed.
For his resulting injuries Holtz instituted this action against the Daniel Hamm Drayage Company. Upon this appeal it is urged that the court erred in submitting the case to the jury and in not sustaining the motion for a new trial for the reason that the plaintiff's petition wholly failed to state a cause of action or, in the words of the Civil Code, failed to state "facts showing that the pleader is entitled to relief." Mo. R.S.A., Sec. 847.36; Langenberg v. City of St. Louis, 355 Mo. 634, 197 S.W.2d 621. In this connection it is urged that the court erred in giving instruction one because it was not within the pleadings or the evidence, submits a theory not pleaded and permits a recovery without requiring proof of causal negligence on the part of the appellant.
This is the appellant's summary of the plaintiff's petition: "The plaintiff alleged in his petition that . . . he was standing `adjacent to a loading platform' at his place of employment, `in close proximity' to an `unoccupied' automobile truck, which had been so placed by the defendant and which was in defendant's `exclusive possession'; that then `said truck did start in motion and move and did strike and injure plaintiff,' due to the negligence and carelessness of defendant." The appellant carefully avoids characterizing the allegations of the petition. Instead, the words "adjacent to," "close proximity" and "unoccupied" are analyzed and it is argued that they do not indicate a position of peril. It is urged that the phrase "did start in motion and move" is in fact a statement that the truck moved forward and not backward and, therefore, if it did move forward the accident could not have happened.
The appellant did not attack the petition by motion or ask that it be made more definite an certain. Mo. R.S.A., Secs. 847.62, 847.63. Of course if it wholly fails to state "a claim upon which relief can be granted" it may nevertheless be attacked. Mo. R.S.A., Sec. 847.140; 2 Carr, Civil Procedure, Sec. 1213. But in this petition the charge of "negligence and carelessness" in the circumstances set forth, together with the allegation of "directly and proximately resulting," is an allegation of fact as contrasted with an allegation of a mere legal conclusion and constitutes, under the code, such a charge of general negligence that it is good after verdict, in the absence of attack, even though it is indeed nebulous in its allegations of negligence. Gerber v. Schutte Investment Co., 354 Mo. 1246, 194 S.W.2d 25; Zichler v. St. Louis Public [885] Serv. Co., 322 Mo. 902, 59 S.W.2d 654; State ex rel. Hopkins v. Daues, 319 Mo. 733, 6 S.W.2d 893.
The instruction, in accordance with the proof, hypothesized in detail the facts and circumstances and specifically required the jury to find that the acts of the appellant's driver started the truck in motion and caused it to strike the plaintiff "by reason and on account of the fact, . . . that the defendant's chauffeur did pull the rope attached to said hoist and that thereby said hoist was put into operation, . . . and . . . that the operation of said hoist did lift the load on said truck and that said truck did thus and thereby move and back up and strike plaintiff, . . . and . . . that said chauffeur did pull said rope at a time when plaintiff was in between said truck and platform, and in a position of imminent peril of being struck . . . and if you further find that defendant's chauffeur in thus causing the truck to move and back up, . . . did fail to exercise ordinary care and was then and there guilty of negligence, . . . and . . . that as a direct and proximate result of said negligence . . ." In contrast with an instance of submitting a specification of negligence not shown by the evidence (Krelitz v. Calcaterra, (Mo.) 33 S.W.2d 909), or one not pleaded at all (State ex rel. National Newspapers' Ass'n. v. Ellison, (Mo.) 176 S.W. 11) or submitting general negligence in the face of an allegation of specific negligence (Watts v. Moussette, 337 Mo. 533, 542, 85 S.W.2d 487) this instruction plainly and properly submitted, under a charge of general negligence, the proven specific acts of negligence. Grimes v. Red Line Service, Inc., 337 Mo. 743, 85 S.W.2d 767. It does not in direct terms require a finding that the chauffeur knew that the plaintiff was in a dangerous position and that operating the hoist would injure him but it does require the jury to find that the chauffeur did not exercise ordinary care and that he was negligent in the details specified which is equivalent to and includes a finding that the chauffeur, in the exercise of ordinary care, could and should have known of the plaintiff's perilous position between the dock and the truck and have been governed accordingly. Kamer v. M.-K.-T.R. Co., 326 Mo. 792, 32 S.W.2d 1075; Hulsey v. Tower Grove Quarry Const. Co., 326 Mo. 194, 30 S.W.2d 1018. As a matter of fact the plaintiff's perilous position and the chauffeur's knowledge of it were not even debatable issues in this case. When the chauffeur was first approached by one of the plaintiff's attorneys he denied his identity and denied that he was the driver of the truck. Nevertheless, in his direct examination, he admitted that he pulled the rope and set the hoist in operation. He testified that both he and a colored man cautioned Holtz about getting behind the truck. His claim was that Holtz told him to pull the rope. But in any event he said that operating the hoist did not cause the load to lift and the truck to move but that "he started to climb up on the truck when the box slipped, causing the truck to come back about four to six inches and pinning him, his one side, between the platform and the truck." In short, the conduct hypothesized as specific negligence was within the general allegations and a fair inference followed, from all the proof, of negligence, causal connection and proximate cause
Early in the trial, while the plaintiff was testifying as the first witness, his counsel asked a few preliminary questions and then said: "You are the father of some seven children, I believe?" The trial court promptly sustained an objection to the question and orally instructed the jury to disregard the affirmative answer. The court refused however to discharge the jury and declare a mistrial and it is now urged that the question and answer were so prejudicial that the judgment should be set aside and a new trial granted. There can be no doubt of the impropriety of the question in this case. The trial judge would have been justified in discharging the jury (Franklin v. Kansas City, 213 Mo. App. 154, 248 S.W. 616) but we cannot say in this instance that the question was so prejudicial that the court abused its discretion in not discharging the jury. In Dick Brothers Quincy Brewery v. Ellison, 287 Mo. 139, 229 S.W. 1059; Dayharsh v. Hannibal St. J. Ry Co., 103 Mo. 570, 15 S.W. 554 and Stephens v. [886] Hannibal St. J. Ry. Co., 96 Mo. 207, 9 S.W. 589, the trial court admitted the improper evidence and in one case instructed the jury on it and in the third case attempted to limit the effect of it. In all these cases the trial court once put its stamp of approval on the improper evidence. Here, however, the trial court promptly sustained an objection to the evidence and as promptly instructed the jury to disregard it. In these circumstances we cannot say that the question and answer were so manifestly prejudicial that the prejudicial effect of the evidence remained with the jury despite its exclusion (5 C.J.S., Sec. 1737, p. 1030) and consequently that the trial court abused its discretion in not discharging the jury. Franklin v. Kansas City, 213 Mo. App. l.c. 159-160, 248 S.W., l.c. 617-618.
In the course of the trial the hospital records, forty-six photostated pages, were offered in evidence. At the conclusion of appellant's evidence counsel started reading from the hospital record. Plaintiff's counsel claimed that all the record was not being read and that undue emphasis was being placed upon those parts of the record which indicated that the patient was resting well and sleeping well while in the hospital. He urged that the jury be permitted to read the record for themselves. Once, on the tenth page of the transcript concerning the reading, plaintiff's counsel said: "Will you let the jury read it? I think they can read it better than you can read anyway. Let them take it up and not waste all this time." But appellant's counsel read on: "Well, I'll go on. `Resting comfortably all the way through'; I make that statement. And I see nothing in here about the — yes, I see something on page — next to the last page — no, second from the last page; `Wound dressed; very little drainage; comfortable.' That is third from the last page, gentlemen. Resting comfortably all the way through after that. And with the understanding that the jurors may have it, I'll cease reading. I know you will be happy to have me quit." There was no further comment by plaintiff's counsel and no comment whatever by the court. During his argument appellant's counsel told the jury that he wanted them to take the hospital record to the jury room "and read only the material parts; . . ." At the conclusion of the argument the court gave the jury the instructions and the forms of verdicts and appellant's counsel said, "and the hospital record." The court said: "Should they ask for them, they may have them." Counsel said: "No, it was agreed this should go, Judge." The court replied: "I say should they want the exhibits and ask for them. I'll have them down here for you, gentlemen; all the exhibits, please."
It is now argued that there was a stipulation between the attorneys, in the presence of the court and jury, that the jury should take the hospital records to the jury room and read them and that the court committed prejudicial error in not immediately giving them to the jury. It is said that counsel would not have discontinued reading the record but for the agreement and that in the circumstances the jury must have concluded that the court did not want them to have the hospital records. As appellant said, "the court remained silent throughout all these proceedings." As counsel read the records, and for that matter throughout the trial, there was considerable colloquy and mutual maneuvering for position. It is not necessary, in the outlined circumstances, to say whether there was in fact a firm bargain between counsel that the jury should have the hospital records. Counsel did read on after the offer was made and, after saying "Resting comfortably all the way through after that," announced that with the understanding that the jury should have the records he would cease reading. Whether there was an agreement between counsel or not, there was no agreement or understanding with the court and, during the reading and colloquy, no one asked for and there was no ruling by the court. In the circumstances, again, whether the hospital records should have been given to the jury, unless the jury requested them, was a matter within the court's discretion and certainly it cannot be said under this record that the court so abused its discretion that this court should direct a new trial. Dougherty Real Estate Co. v. Gast, (Mo. App.) 95 S.W.2d 877, 880; R.C. Stone Milling Co. v. McWilliams, 121 Mo. App. 319, 98 S.W. 828.
[887] In the course of appellant's argument the court sustained an objection to counsel's statement: "Where is the man's boss? Who would know better, a man that has worked for a man nine years. If this boss thought he was hurt in any way, or any of his fellow workers — not even a fellow worker was here except this porter —" Nevertheless counsel continued to argue the matter saying that the Day-Brite Company's interests were opposed to the interests of the appellant because of the employer — employee relationship and workmen's compensation paid to Holtz. It is now urged that the court erred in not permitting appellant to cross-examine Holtz as to why none of his fellow employees or bosses, other than the porter, was called as witnesses in his behalf, particularly as to his ability to work since his injury, and argue the fact to the jury. In short, the appellant contends that these witnesses were not equally available to it but were unequally available to the plaintiff and therefore appellant had a right to comment on the fact and ask the jury to draw an unfavorable inference from his failure to call them. 64 C.J., Sec. 290, p. 271.
These witnesses and the plaintiff's failure to call them are certainly not comparable to the doctors in McInnis v. St. Louis-Southern, Inc., 341 Mo. 677, 108 S.W.2d 113 and Waeckerley v. Colonial Baking Co., 228 Mo. App. 1185, 67 S.W.2d 779. Cooper v. Metropolitan Life Ins Co., (Mo. App.) 94 S.W.2d 1070 and Huskey v. Metropolitan Life Ins. Co., (Mo. App.) 94 S.W.2d 1075, relied on by the appellant, are exactly the converse of this situation and plainly indicate the difficulty with the present argument. In those cases against an insurance company for permanent disability benefits plaintiff's counsel sought to argue, unfavorably, the fact that the insurance company had failed to call the plaintiff's fellow employees but the court held that they were not "peculiarly under the control of or so available to the defendant that they would naturally have been expected to testify favorably to defendant and against the plaintiff." Therefore, such employees were equally available as witnesses and no unfavorable inference could be drawn from failure to call them. Winkler v. Pittsburgh, C.C. St. L.R. Co., 321 Mo. 27, 10 S.W.2d 649, is an excellent example of a witness' becoming available to one party only in such a manner that his adversary has a right to comment on it. In this case however the plaintiff's fellow employees and employers were equally available to both parties. In re Thomasson's Estate, 347 Mo. 748, 760, 148 S.W.2d 757, 764. In addition, in this case, the plaintiff did call one fellow employee, the porter Cenatienpo, who had personal knowledge of the occurrence and in addition testified concerning the plaintiff's ability to work since his injury. In that situation failure to call other employees as witnesses on the same subject did not necessarily permit the unfavorable inference argued here. Annotation 135 A.L.R. 1376. In any event the appellant is not entitled to a new trial upon this assignment of error under this record. Mo. R.S.A., Sec. 847.123; 847.140b.
The appellant further insists that it is entitled to a new trial because the trial court permitted plaintiff's counsel to make an inflammatory, prejudicial argument without reprimanding counsel and instructing the jury to disregard it. Appellant's counsel concedes that he made no objection whatever to the argument, even at its conclusion (London Guarantee Acc. Co. v. Woelfle, 83 F.2d 325, 344) but insists nevertheless that the trial court should have intervened, reprimanded counsel and instructed the jury to disregard it and having failed to do so should have sustained the motion for a new trial. It may be conceded that an argument may be so prejudicial that a mere general objection, or even none at all, is sufficient to require affirmative action on the part of the trial court. Dodd v. M.-K.-T.R. Co., 353 Mo. 799, 806, 184 S.W.2d 454, 455. But an examination of the record reveals that the argument complained of does not fall in that category and it may not be said that the trial court abused its discretion in not voluntarily intervening. Burow v. Red Line Service, 343 Mo. 605, 122 S.W.2d 919; Cordray v. City of Brookfield, (Mo.) 88 S.W.2d 161.
In conclusion it is urged that the verdict of $15,000 is excessive. At the time of his injury the plaintiff was fifty-seven [888] years old. He was in the hospital from September 25th until November 22nd and was able to return to work, at less arduous tasks than formerly, on December 19, 1945. He was "pinned" between the truck bed and the loading dock. According to the three doctors who treated and examined him, the plaintiff sustained a comminuted fracture of the ilium, one fracture with separation and one without separation. There was also a separation and widening of the right sacro-iliac joint, the separation being one-quarter of an inch at its widest point, graduating down to an eighth of an inch and finally to a very slight separation. A hematoma formed over his sacral region and a three or four inch incision was made and the fluid drained off. Fluid continued to develop, however, and his back was "aspirated" seven times resulting in a loss of some of the subcutaneous tissue in that area. He was placed in a Hodgin splint and the fractured ilium healed leaving him with some pelvic disability. The separation of the sacrum and the ilium is probably permanent as is the loss of the tissue. The appellant's medical evidence tended to show that the plaintiff had but little if any disability. They attributed his sacro-iliac difficulties to arthritis. They reluctantly found that he had ever had a fractured ilium, one doctor was not convinced of it until another doctor demonstrated the fact as he testified. As to any disability from fractures someone even said that Wild Bill Longson had his back broken in four or five places and resumed his career as a professional wrestler within ten months. Neither the appellant nor the respondent have cited cases in support of their conflicting claims of excessiveness or of reasonableness of the verdict. Considering all the circumstances and the applicable general rules regarding the construction of verdicts we are unable to say that this verdict is in fact excessive. Compare: Carpenter v. Wabash Ry. Co., 335 Mo. 130, 71 S.W.2d 1071.
There being no reversible error the judgment is affirmed. Westhues and Bohling, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court. All the judges concur.