Hampton v. Rautenstrauch

On Motion for Rehearing

PER CURIAM.

Appellant’s motion for rehearing re-argues the last point ruled in the opinion and insists that the opinion .concedes it was “error for a party to comment upon the absence of a witness at the trial which the party could have called himself.” Appellant further argues that “a party should not withhold evidence from the jury which was available to him and then comment upon the failure of the adverse party to call such a witness.” We fully agree, but find no improper withholding of evidence in this case. The burden rested upon defendant to show that plaintiff’s injuries were sustained in a prior accident.

Appellant has cited two additional cases: Johnson v. St. Louis Public Service Co., 363 Mo. 380, 251 S.W.2d 70, 74, and Lix v. Gastian, Mo.App., 287 S.W.2d 354. More than one error was considered in each of these cases. These cases have little in common with the factual situation presented in the present case. They do not aid us in determining the issues presented here. In neither case was there any action taken in ruling the objection or request made by counsel, other than to overrule it, and in neither case was defendant contending that the injury complained of had been sustained at some other time than the time relied upon by plaintiff, nor had the witness referred to treated plaintiff for such prior injury.

Appellant further says that “the action taken by the trial court was not only feeble and ineffective but was a back-handed approval.” We think the action taken by the court in an apparent effort to act upon the request and grant some relief to defendant was sufficient to require defendant to either renew the objection after the ruling, make a request for further relief or object to the remarks of the court in order to avoid a waiver of the original objection on the ground that apparently counsel was satisfied with the action taken by the court. And why did defendant’s counsel join with his objection the statement, “He (the mentioned witness) is equally available under subpoena to both parties”? The statement did not tend to sustain an objection to the argument about Dr. Man-ganaro, nor was it a basis for counsel’s *114request. Apparently it confused the trial judge and, if there was any prejudice to defendant, this statement of his own counsel may have caused such prejudice.

In any event, not every error occurring in the trial of the cause is prejudicial and reversible and, under the facts and circumstances shown by the record in this case, whether the mentioned error was prejudicial to defendant was a matter properly witihin the trial court’s discretion and, since the trial court overruled defendant’s motion for a new trial, which motion had fully presented this particular error, we should not disturb the trial court’s conclusion that no prejudice resulted. The motion for a rehearing is overruled.