Cassin v. Theodorow

504 S.W.2d 203, 1973 Mo. App. LEXIS 1103
CourtMissouri Court of Appeals
DecidedNovember 20, 1973
DocketNos. 34928, 34950
StatusPublished
Cited by4 cases

This text of 504 S.W.2d 203 (Cassin v. Theodorow) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cassin v. Theodorow, 504 S.W.2d 203, 1973 Mo. App. LEXIS 1103 (Mo. Ct. App. 1973).

Opinion

McMILLIAN, Judge.

Defendants Alexander Theodorow and Edward Henry Franke, Jr., appeal from a judgment on a jury verdict of $15,000.00 entered by the Circuit Court of St. Louis County in favor of plaintiff Roxanne Cas-sin by her next friend, James Cassin.

Plaintiff’s injuries were the result of a head-on collision between the Theodorow automobile, in which she was a passenger, and the Franke automobile. The collision occurred in St. Francois County, Missouri, on River Park Road, which was a 24 foot wide gravel road and was located about three and one-half miles west of Route 47.

The evidence most favorable to the plaintiff’s case revealed that: the accident occurred on a bright sunny day about 2:15 P.M.; the collision occurred on a straight-away of an “S” shaped curve; that neither driver sounded a warning nor attempted to swerve although there were unobstructed shoulders on either side of the roadway; that defendant Theodorow was not keeping a careful lookout; that both cars were being operated in the middle of the road; that defendant Franke, who was operating his car at 30-35 miles per hour, reduced his speed to 5 to 10 miles per hour after he saw the Theodorow automobile 200 feet away; that defendant Theodorow’s speed was 20 to 40 miles per hour; and that plaintiff warned Theodo-row of Franke’s approach when his car was five seconds away from the point of collision. Assuming the average speed of the Theodorow car to be 30 miles per hour, traveling at the rate of 45 feet per second, this would permit a jury to find that Theo-dorow could have seen the Franke automobile when it was 225 feet away.

As a result of the accident plaintiff suffered several lacerations and loss of tissue about her face, involving her eyelids, forehead, nose and cheek, necessitating four operations and hospitalization within a thirty-month period. Plaintiff and her mother were satisfied with the plastic surgery but plaintiff still complained of some scars which, according to medical testimony, are permanent; also, recurring headaches, some numbness, a patchy feeling in her forehead and sensations there when changes in the weather occur, feelings of anxiety, and shyness around people.

Several assignments of error are claimed by each co-defendant. Defendant Theodo-row contends that: first, arguments of plaintiff’s counsel during summation were highly prejudicial and inflammatory, and that the trial court erred in overruling defendant’s objection and motion for mistrial; and second, the verdict in favor of the plaintiff was excessive and resulted from bias and prejudice on the part of the jury.

Defendant Franke contends that: first, argument of plaintiff’s counsel as to the court’s opinion was patently prejudicial and unfair, and the trial court erred in overruling defendant’s objection and motion for mistrial; second, the submission of one instruction to the jury on defendant’s negligence constituted submission of multiple theories of negligence in the con[205]*205junctive violating M.A.I. Rules, and another instruction improper in form violating M.A.I. Rules referring to a singular defendant rather than to the co-defendants; third, there was insufficient evidence of probative value to support the theories of negligence submitted in the instructions to the jury.

Taking up defendant Theodorow’s first assignment of error, we find that the contested remarks came in plaintiff’s counsel’s closing argument. In speaking of her damages, counsel said, “ . . . I have asked her to leave this courtroom and she is not in here, and I did that deliberately because I want to be able to — .” Franke’s attorney made a general objection, joined in by Theodorow’s attorney; however, both objections were overruled, Franke’s attorney also requested, but not joined in by Theodorow’s attorney, a mistrial; this request, too, was denied.

Defendant Theodorow did not bring forward in his motion for a new trial any claim of error on the part of the court for its failure to declare a mistrial. Consequently, nothing is preserved for review. Geiwitz v. Geiwitz, 473 S.W.2d 781 (Mo.App.1971); Aiple v. South Side Nat. Bank in St. Louis, 442 S.W.2d 145 (Mo.App.1969). Nor, in our opinion, are Theodo-row’s general objections, “I would object, this is improper argument, and I object to it” adequate to convict the trial court of any error. Gilmore v. Union Construction Co., Mo., 439 S.W.2d 763; Sollenberger v. Kansas City Public Svc Co., 356 Mo. 454, 202 S.W.2d 25 (1947). But, in any event, the applicable rule is as stated in Handshy v. Nolte Petroleum Company, 421 S.W.2d 198, 202 (Mo.1967), where the court noted that the trial judge is in the best position to determine the effect of an alleged prejudicial argument and stated:

“ ‘ . . . we are inclined to defer to his rulings unless it appears that the protested arguments so patently pass legitimate bounds as to be manifestly prejudicial and the ruling of the trial court thereon a clear abuse of discretion.’ ”

Here we cannot say that the reference to the absence of plaintiff from the courtroom “so patently pass legitimate bounds” as to require the reversal of the trial court. The remarks of plaintiff’s attorney can, at most, be taken as a suggestion to the jury that plaintiff was sensitive about her appearance. Plaintiff’s mental and physical suffering as a result of the accident, including her sensitivity to remarks about her appearance, were legitimate elements of damage in the case. The protested argument was relevant and not “manifestly prejudicial.” Secondly, we consider Theo-dorow’s contention that the $15,000.00 verdict was indicative of jury bias. In Larson v. Alton & So. Ry Co., 431 S.W.2d 687, 692 (Mo.App.1968) we said, “Even an excessive verdict does not in and of itself establish it resulted from bias, passion or prejudice without showing some other error committed at the trial . . . ” While it is true that defendant Theodorow did allege that the trial court, over his objection, permitted counsel to make an improper argument; but, as indicated, this contention was without merit.

In Gathright v. Pendegraft, 433 S.W.2d 299 (Mo.l968), the court upheld a $50,000.-00 verdict in favor of a young housewife for facial and other injuries sustained in the explosion of her home. The court pointed out that it had not seen the plaintiff “ . . . but the jury did, and it was able to take into account her disfigurement and the probabilities of permanency discernible by visual observation . . . ” Facial injuries of a young lady are involved herein, and the jury had an opportunity to see her permanent scars and to assess the evidence relating to her injuries and the treatment thereof. Moreover, defendant Theodorow had not adduced any evidence to suggest misconduct or misbehavior on the part of the jury. Jones v. Pennsylvania R. Co., 353 Mo. 730, 182 S.W.2d 157 (1944). Therefore, we rule this issue against defendant Theodorow.

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Bluebook (online)
504 S.W.2d 203, 1973 Mo. App. LEXIS 1103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cassin-v-theodorow-moctapp-1973.