Hunt v. Hunt

On Rehearing

PER CURIAM

On motion for rehearing appellant asserts that our opinion conflicts with cases such as Hancock v. Crouch, Mo.App., 267 S.W.2d 36, which hold that when objection is made to argument and the trial court simply tells the jury to be guided by the evidence, the court has not sustained counsel’s objection but such statement amounts to tacit approval of the argument. Appellant says that our opinion treats the court’s statement as the equivalent of an order sustaining the objection. We do not consider that the opinion so states. We did not so intend, and the opinion should not be so construed. After setting out verbatim what happened, the opinion merely concludes that from an examination of the transcript no prejudicial error is shown. It is of interest to note that Judge Stone, in Hancock v. Crouch, reached such a conclusion under the facts in that case, even though he specifically stated that the court’s statement was not the equivalent of an order sustaining objection to the argument.

Appellant also complains that the court failed to consider her request that it invoke Supreme Court Rule 79.04, V.A. M.R., which relates to plain error. We *687have considered the argument to which objection was made, all of which is set out in our opinion, and also have examined the other argument to which counsel makes reference but to which objection was not made in the trial court. It is the conclusion and judgment of the court that the plain error rule should not be invoked.

Appellant’s motion for rehearing is overruled.