ON REHEARING. A motion for rehearing has been filed by learned counsel for the garnishee in which they question the propriety of our opinion in two principal respects: First, that we have approved certain prejudicial argument to the jury on the part of plaintiff's counsel, and the erroneous ruling of the lower court upon objection thereto; and, second, that we have misconceived and misstated the evidence, particularly in respect to whether or not defendant Joseph Gruverman was carrying a card from the bakers' union when he departed from St. Louis for his destination in the East.
The complaints about the argument of plaintiff's counsel have now simmered down to two alleged improper remarks, one of which was that Teasdale knew that the Gruvermans could be found, and the other, that he had withdrawn from the case when he might have asked for a continuance, and have found the defendants; that the defendants were only his nominal clients; and that he was looking after the interests of his actual client, the insurance company, with the design of getting rid of the claim in that way. The ruling of the trial judge in each instance was merely that he would let the statement stand, though in disposing of the objection to the last remark, he did venture the suggestion that Teasdale would be at liberty to answer the argument.
Now counsel for the garnishee not only take the position that the argument of their adversary, considered along with what they claim was the approval given it by the trial judge, should have worked a reversal of the judgment, but also that in holding otherwise, we have departed from the rules heretofore laid down in the controlling decisions of this and the Supreme Court upon the subject of appellate *Page 302 interference with the ruling of a trial court on objections to alleged improper argument of counsel.
In our principal opinion we said that the court was guilty of no judicial indiscretion, inasmuch as it was as quick to repudiate the bad argument as it was to uphold the good; and after a full consideration of counsel's motion for a rehearing, we are still of the same thought. In other words, we consider the remarks of plaintiff's counsel which are now under scrutiny as having been directed to a fair and legitimate matter of comment, subject to answer by counsel for the garnishee in argument of like kind and character, as the lower court held.
The prime point in the case under the pleadings, evidence, and instructions, and the one to which all the argument seems to have been directed, was whether the garnishee had used reasonable diligence to ascertain the whereabouts of the Gruvermans, and whether it had disclaimed liability, and allowed default judgment to go against them, in good faith. Obviously the remarks of plaintiff's counsel had to do with this very issue, and he was entitled in a proceeding of this character, even though his language may have been somewhat extravagant, to minimize his opponent's efforts, question his diligence, and point out to the jury the identity and interest of his real employer in the damage suit, with his opponent equally entitled to address himself in reply to the identical matter.
It is also of significance that the learned trial judge took no sides in the matter, and said nothing which was in anywise calculated to lend his personal approval to the argument, but simply held in effect that the argument was directed to an open question in the case, which both parties were at liberty to discuss, and which the jury as the arbiters of fact would finally be called upon to determine for themselves. We see no misconception of the law in such a ruling, and hence are constrained to adhere to the view heretofore expressed that error was not committed.
As to the charge that we have misstated the evidence in support of plaintiff's point that defendant Joseph Gruverman had a union card when he left St. Louis, we simply quote from the testimony of garnishee's own witness, Kramer, as follows:
"Q. Joe Gruverman was the father? A. Yes.
"MR. O'DONOHOE: (Q). Did Joe Gruverman belong to your union? A. He did belong.
"Q. Did he belong to it up to the time you say he went to New York? A. He had to withdraw from the union.
. . . . . . . . *Page 303 "Q. When did the older one get his withdrawal card? A. As soon as he started in business. The first week he started in business he got his withdrawal card. All the bosses do.
"Q. All the bosses? A. Anybody start in business, the union wouldn't allow them to carry a full card.
"Q. Will they allow them to carry any card? A. Withdrawing card.
"Q. What do you mean by that? A. It costs $2.10 to be a full member; it costs half dollar to be a half member.
"Q. Which one did he belong to? A. Union No. 4.
"Q. Was he in the 50 cent class or the other? He belonged to the 50 cent class later on, when he became boss.
"Q. Was he a 50 cent class member when he left St. Louis? A. Yes, sir.
"Q. Did he then get a withdrawal card from the union? A. He has to get a full withdrawing card to belong to the union in New York — in any State.
"Q. What union does he belong to in New York — what branch? A. I forget that. I cannot tell. They got different locals over there.
. . . . . . . . "Q. Would you say the locals would or would not know what local he belongs to in New York? A. They may know at headquarters.
"Q. The headquarters would know it? A. Yes.
. . . . . . . . "MR. O'DONOHOE (Q): You didn't go to the head lodge here, or head members of the order, and ascertain what union he was in in New York? A. They wouldn't tell. Tell you to find out in Chicago, the headquarters.
"Q. They wouldn't tell you where he was? A. The International in Chicago will tell you. He don't know here. He gets a withdrawal card and they let him go."
Accordingly, the Commissioner recommends that the motion for rehearing be overruled.