Opinion
No. 21287.
January 9, 1950.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, THOMAS J. SEEHORN, J.
Raymond E. Martin, Kansas City, W. Raleigh Gough, Kansas City, for appellant.
Thomas C. Fitzgerald, Kansas City, for respondent.
This is an action for conversion of an automobile. Verdict and judgment were in favor of plaintiff (respondent) for $427 actual damages and $2,500 punitive damages. The defendant appealed.
In the plaintiff's petition he alleged his ownership of the title to a certain Ford automobile valued at $427; that on March 10, 1946, having the rightful possession thereof, he delivered said car to defendant for the purpose of having defendant install a rebuilt motor therein; that at the request of an authorized agent of defendant in charge, plaintiff, on March 11, 1946, surrendered to defendant the plaintiff's certificate of title to said car for the purpose of indicating thereon the number of the replacement motor; that on April 26, 1946, plaintiff tendered to the defendant the cost of all repairs theretofore made on said car, and demanded possession thereof from said agent and who, in the scope of his employment, refused to surrender possession of said automobile to the plaintiff, converted the same to the use of defendant without permission or consent of the plaintiff, and forged the signature of the plaintiff on said certificate of title, thereby assigning said title from the plaintiff to the defendant; that on said April 26, 1946, defendant had no right to the possession of said car, and the retention thereof was unlawful and, as a result of said conversion, plaintiff was damaged in the amount of the reasonable market value of said car at said time, to wit, $427; that all of the defendant's acts so alleged were willful and malicious, wanton and unlawful, and punitive damages in the sum of $15,000 should be assessed against the defendant. The prayer was for $427 actual, and $15,000 punitive damages.
The answer was, in effect, a general denial of all the material allegations.
The evidence on respondent's behalf tended to show that he left his automobile March 10, 1946, with appellant for repair. He already owed appellant balances for two previous repair jobs, for which he had entered into a "time payment plan." On March 11, 1946, he agreed to have a rebuilt motor installed and left his certificate of title with appellant's manager, Olin U. Murfin, to show thereon the new motor number. It was agreed that the old balances would be deferred until the motor job was completed, when he would be notified, would pay all balances then due and get his car. respondent made many inquiries about the car and each time was told that the motor had not yet been shipped, or that the job was not completed until on April 26, 1946, respondent called upon appellant, offered to pay all bills due from money then in his possession, but could not find the car, which he demanded, and was told by the manager that his car had been sold for nonpayment of his indebtedness. An employee of appellant had purchased the car and had possession of it. Respondent's name had been forged to the assignment on the certificate, as was the name of the notary public thereon, and a reassignment had been executed on behalf of the appellant by the manager to the purchaser.
There was evidence on appellant's part that respondent's two old accounts were represented by two installment notes signed by respondent, each secured by a chattel mortgage on the car, and that respondent was in default on both, and appellant contends that under the terms of the mortgage the respondent thereby owed the full balance thereof, and that appellant was thereupon entitled to the possession upon such default, with right to sell at private sale; that the subsequent signing of respondent's name to the certificate is immaterial to the issues. Appellant admitted that the respondent's name, signed as assignor to the certificate of title, was not respondent's signature, but denied knowledge as to who forged the same. The new bill for the motor installation amounted to $208.03.
A more detailed statement of the evidence is not required because of the disposition we are compelled to make of this case as hereinafter set forth. The respondent also submits five points of error, although he took no appeal. The main controversy is the right of possession at the time of the alleged conversion, which, in turn, depends upon what the contract was between the parties respecting the maturity of the mortgage notes when the new work was agreed upon.
The appellant's points going to the merits of the case are so related to his points pertaining to the conduct of the trial that we find it impossible to determine the former without disposing of the latter. Upon a careful consideration of the complaints made of the conduct of counsel for respondent, and the rulings or lack of rulings on objections made thereto, we conclude that the same so permeate the evidence on the merits of the cause that a retrial of all the issues must be ruled. The record is replete with an accumulation of improper, irrelevant and prejudicial comments, questions, insinuations and accusations on the part of respondent's counsel, some over the objections, but with the approval of the Court, some in disregard for the rulings of the Court, and some in a manner that could not be cured by objections or rulings. An enumeration of some instances complained of will illustrate.
On voir dire respondent's counsel said to the jury panel, referring to the plaintiff: "He is a natural person, that's what we call him. He is bringing a suit against what we lawyers call an artificial person, a child of the Legislature, a corporation". Objection to this was sustained, and the jury was instructed to disregard the statement. Counsel proceeded: "A corporation is an artificial person that has the same rights and same duties as either you or I have. This corporation that we are filing suit against, and against whom we are going to have this trial, are dissolved by virtue of the law. Their charter has been forfeited. However, our Legislature saw fit to keep them in existence for two years". Objection was sustained. Counsel for appellant had told the jury panel on voir dire that Mr. Shelly, president of the defendant corporation, had died, — a fact which later proved material when the plaintiff testified that he had some of his negotiations with Mr. Shelly. Respondent's counsel asked: "What's that got to do with this case?" Mr. Gough: "You make your objections to the Court". Mr. Fitzgerald: "My mother-in-law had a bad foot at that time". Mr. Gough: "He died shortly afterwards and his widow is Mrs. Shelly" (a witness). Mr. Fitzgerald: "She is not a party to this case. This is against (between) an artificial person and a natural person here. She is not even in the thing. Why are you bringing her in?" Objection was made by respondent's counsel and overruled. Again, in his opening statement to the jury, respondent's counsel said: "Well, now, this is a suit between a natural person as you or I, and as a person we expire when our physical body dies. And its brought against an artificial corporation, an artificial person, a corporation * * *". On cross-examination of Mrs. Shelly, the widow of the deceased president of the defendant corporation, respondent's counsel asked: "Did you know that on December 28, 1942, that the Shelly Corporation was arraigned before the grand jury?" Objection was made, and after a discussion out of the hearing of the jury, the objection was sustained, and then, in the hearing of the jury, the court repeated its ruling and respondent's counsel asked: "Is it overruled?" The Court: "No. Sustained". Mr. Fitzgerald: "I can't impeach the corporation? I can't impeach the corporation?" A further argument with the Court ensued and the Court repeated: "Sustained". Mr. Fitzgerald: "The objection is overruled?" The Court: "No. Sustained". Mr. Fitzgerald: "Then I can go ahead". The Court: "No." Counsel then asked Mrs. Shelly: "Well, now, in your opinion, Mrs. Shelly, the corporation was absolutely Simon-pure in all their relations and had no trouble whatsoever". Objection was again sustained. He then asked her if she had not told some person from a credit agency that her own credit rating was $175,000, and then slammed the door in the agent's face. Objection was overruled and the answer was in the negative. Respondent's counsel said: "I have nothing against you, Mrs. Shelly, and I know that you are going to come in here and intimate that you are a way into the issues here, but Arthur doesn't know you and I don't know you". Appellant's counsel moved the Court to declare a mistrial. The Court later threatened to declare a mistrial if respondent's counsel did not stop his insinuating and improper statements to the witness, Mrs. Shelly. Mr. Fitzgerald: "Can I ask if she knows about those claims? If she says no, all right. These have been filed and they are over at the Federal Court and they are downstairs". The Court: "No". Mr. Fitzgerald: "Can I ask anything? OK, that's all right. And we have convictions on them too. They are all convictions". The Court: "No". The same counsel asked Mrs. Shelly if she knew if any of the corporate records had been falsified, and, "there was a conviction on such falsifications". Objection to this was overruled. He asked her about her individual means and that of her husband's, and asked her "Why did you divorce Mr. Shelly"? Objection was made and a motion to declare a mistrial. The Court ordered counsel to withdraw the question, which was done. He asked her if she had been divorced from her husband and if she had remarried him, and whether she was living with him at the time of his death. Objection was made and another motion to declare a mistrial. On rebuttal the same counsel declared: "There is no opportunity to impeach the corporation". The Court: "Have you any additional evidence?" Mr. Fitzgerald: "I have the convictions". Objection was sustained.
Over the objection of appellant, the Court permitted respondent's counsel to relate in detail the proceeding prior to trial in the Assignment Division pertaining to a motion to inspect the appellant's papers. There was no proper evidence as to that proceeding in the trial or in the record before us and counsel strongly inferred that appellant's counsel had falsified at the hearing on the motion. Referring to the various hearings on the motion to inspect, the following took place in the argument of respondent's counsel: "* * * I am trying my first case today, and he told you that 18 years ago he tried his first case, and he is a good lawyer. He's the finest. He is top-flight competition. He works with a firm of lawyers, Mr. Martin and this young man here who graduated from Missouri University, and who is a master of the theory of the law, and when they get a case they talk it over among themselves and say, what shall the evidence be, how shall we handle it, and they win their cases. He is capable. Now, six times — not one time or two times or three times, four times or five times, it was six times, not seven times — six times in the assignment division I filed a paper on him. I asked him to produce documents.
"Mr. Gough: Your Honor, this is not material to the issues to be decided, and I object to it.
"The Court: Overruled.
"Mr. Fitzgerald: Thank you. And under that statute for me to prepare my case under the law I am entitled to ask the opposition to produce certain papers for examination so that I wouldn't be caught by surprise during the trial. After all that's only fair. They can't bring in something you have never seen before and spring it on you. And six times they beat me over in that assignment division. And on that paper I designated that I wanted the documents, if any, that they might have and which they intended to produce in the trial.
"Mr. Gough: I object to that as not based upon any evidence offered in this case.
"Mr. Fitzgerald: Which contained Arthur Moore's signature to bring that in. And you heard him right here, he stood up and read the offer and said, I didn't know that was in there. I didn't know that was in there.
"Mr. Gough: `Will you wait until I make an objection?
"Mr. Fitzgerald: Here we have a man who has practiced law for 18 years and six times with three other sharks they read it over and beat me. That's the truth, isn't it? Isn't it the truth?"
Respondent's counsel attempted to show that many other persons had brought suits against the appellant and offered a witness to prove that a certain other action had been instituted. After an extensive argument in chambers on the subject, the Court ruled that such matters would be incompetent. Later respondent's counsel called to the stand Clifton Nichols, whom he asked: "Have you had any dealings with Shelly Motors Company? A. Yes, I have. They forged my name on a warranty". Objection was again made, and the Court again ruled that such matters were incompetent, whereupon the witness was excused.
Respondent's counsel charged appellant with conniving to keep Mr. Murfin from attending the trial, though there was no direct evidence to that effect. In fact, a subpoena for him issued at the appellant's request, was shown in evidence with the sheriff's return that Murfin could not be found. In the absence of Murfin, respondent's counsel referred to him as in the class of "diseased personalities", who "like to make people mad at them. That helps them in their role with the ladies when they chase the ladies around", and that he was a "crook" and a "convict", and that if the jury could see him it would award the respondent punitive damages. When counsel for appellant, in his final argument, stated that Mrs. Shelly was the sole surviving representative of the corporation, respondent's counsel interpolated: "There's Olin U. Murfin". There was no evidence that Murfin represented the appellant at that time in any capacity.
The natural and accumulative effect of the improper questions, statements, insinuations and accusations repeatedly and persistently introduced into the record as disclosed in the above recitation was to appeal to the passion and prejudice of the jury, rather than to their sense of justice. Furthermore, the likely effect was to place the appellant in the position of constantly objecting to improper questions and statements and appearing to conceal matters pertaining to appellant's liability. State ex rel. S. S. Kresge Co. v. Shain, 340 Mo. 145, 101 S.W.2d 14; Buehler v. Festus. Merc. Co., 343 Mo. 139, 119 S.W.2d 961. Whatever may be the merit in the respondent's case, a fair and impartial trial thereof is required by law. It is impossible to estimate to what extent, if any, matters referred to, which were calculated to appeal to prejudice and passion might have influenced the jury, not only as to the amount of the damages, actual and punitive, but to other essential issues to be determined upon proper evidence and upon proper consideration thereof. The matters mentioned were properly brought to the attention of the trial court in the motion for new trial, and the court should have sustained the same on such grounds. Under all the evidence and the record before us we are compelled to reverse and remand the cause for retrial. It is so ordered.
All concur.