I dissent from the principal opinion affirming the judgment below as to the appellant trustee of the Alton Railroad Company. I do so on the ground that in my view the argument of respondent's counsel to the jury was not purely retaliatory, and constituted reversible error in that it sought a "liberal" verdict on the ground that the deceased had worked for the railroad over 30 years and had sustained an injury to his foot in that service 14 years before his death. These facts, in my opinion, could not constitute a basis for respondent's cause of action, or as a measure of her damages. The contention was made during the closing argument of respondent's counsel to the jury. When referring to "appellant's counsel", counsel for the trustee of the Alton Railroad is meant.
The respondent's theory was that the engineer of passenger train No. 23 was negligent in causing the train (which was late) to travel at an excessive speed, give a sudden bump or jerk in a deceleration of speed, and to emit clouds of smoke in the dark tunnel of Union Station in violation of railroad rules — this while the deceased freight conductor was alighting from the train to the station platform in accordance with a custom, for the purpose of hastening the transfer of his deadhead freight crew by automobile to a freight depot in another part of town. There was evidence of all these facts, and it cannot be questioned that the respondent made a case for the jury.
But it is equally apparent that there was substantial evidence on which the jury could have found for the defendants-appellants. The proven custom for deadhead freight crews to alight from moving passenger [533] trains to the station platform obviously did not apply under any and all conditions, regardless of excessive speed, smoke causing poor visibility and sudden deceleration, which conditions respondent proved to make her prima facie case. There was testimony that the deceased, himself, admonished the other members of the deadhead crew to "be careful"; and that one of them (the fireman) refused to get off when the deceased did alight, because the train was going too fast. There was further evidence that the decedent and other members of the deadhead crew decided to get off that way only a few minutes before the casualty, and that the engineer of the passenger train did not know of their intention, and even that such a crew was on his train. And finally it was shown the deceased was less capable physically than the other members of his crew, being older and afflicted with the crippled foot mentioned at the outset hereof. Under these facts the jury could have found the decedent's negligence was the sole cause of his death. *Page 883
The alleged improper argument complained of by appellant arose out of the following facts. When the trial started, the opening statements of advisary counsel to the court and jury were not taken down by the court reporter and preserved in the record. But later, after the evidence was in and respondent's counsel was making his opening argument to the jury, he said appellant's counsel in his opening statement had told them: (1) that respondent's decedent "was still just a brakeman." Appellant's counsel denied it, declaring what he said was that the deceased "was a conductor — at times he acted as a brakeman, but he had risen to the rank of a conductor." In his closing argument respondent's counsel said appellant's counsel in his argument had not denied bringing up in his opening statement: (2) "the question of a previous injury to decedent's right foot in a railroad accident." We do not know what was said in the opening statements, since they were not preserved, and the trial court did not state its view.
But as to the first of these two alleged statements, the record shows that in the taking of testimony appellant's counsel did in the first instance, in his cross-examination of the respondent, elicit from her testimony that her deceased husband started to work for the railroad as a brakeman, and so continued until he got to be an extra conductor "years ago", but that on account of slack business he had not — served much in that capacity [apparently that is what the witness started to say when she was interrupted]; and that during his 32 years of service the decedent never reached the rank of regular conductor. Later, and in contrast, appellant's counsel showed by his own witness, the conductor of the passenger train involved, that when he began to work for the railroad as a freight brakeman in 1898, he "went up pretty fast" and was made a conductor in five years, and an extra passenger conductor in 14 years. This indicates that appellant's counsel was seeking to show respondent's decedent was a man of mediocre ability or skill, and apparently was addressed to the issue of his sole or contributory negligence. Respondent's counsel made no objection to that testimony when it was introduced.
As to the second alleged opening statement by appellant's counsel concerning the injured foot of respondent's decedent, the record shows that on her own counsel, in his direct examination of her, first developed the fact that her husband had "an infirmity of the right foot", received on the Alton Railroad on August 5, 1929, which caused him to limp slightly. But otherwise, she said, his health was good and he worked regularly without any handicap therefrom. On cross-examination by appellant's counsel as to the nature and location of the decedent's former injury, the respondent said it was received at Marshall, Missouri in a coupling of cars, which mashed the bones of his right foot without severing any of it, and caused him to limp a little and favor that foot, usually by putting the other (left) foot *Page 884 down first, as when alighting from an automobile. She didn't know what he would do in alighting from a train.
The evidence on both sides showed that in the casualty here involved the deceased held the two hand rails of the passenger car and his valise and lantern with his two hands, facing the vestibule, let go with both hands simultaneously and swung off[534] backwards twisting toward the direction in which the train was moving, and first landing on the station platform with his left (uninjured foot), but continued to twist around to the opposite direction and fell, rolling under the train.
The further arguments of respondent's counsel to the jury, challenged by appellant, are set out at some length in the principal opinion, and I shall not quote them again except as necessary. Italics where used are mine. Preliminarily it should be stated that in his opening argument (R. 410), set out in the principal opinion (p. 14), respondent's counsel said: "I know what this jury is going to do. I know what this jury is going to do, with such statements as were made here to the effect that this man worked for thirty-some-odd years for this corporation, and that, as Mr. Miller said, `he was still just a brakeman.' I know what this jury is going to do for this plaintiff, since that man who lost his life, but who still was `just a brakeman', was the only means of livelihood that this woman had, under this evidence."
Immediately thereafter he continued [these two quotations are not included in the principal opinion]: "Yes, I know what this jury is going to do, in my own heart and mind I know. I don't know just how much you are going to, but I know that we do not leave that to speculation or to fancy or to guess-work. We brought it in, in figures, in cold computation figures." And a little later he said (R. 413): "You heard this lady's testimony. Now as was said, he might have been `just a brakeman' or an `extra conductor', but the point is, he was her means of livelihood — that he was her only support."
But so far as I can see, the foregoing opening argument of respondent's counsel to the jury did not disclose that she was seeking to recover damages because her deceased husband had worked for the Alton Railroad "thirty-some-odd" years, and was "still just a brakeman." Those facts were mentioned but not as a basis for recovery, and there was no reference whatever to his injured foot. On the contrary the tenor of the argument indicated counsel was contending the respondent should recover in spiteof the two mentioned facts, and not because of them. For he went on to say the basis of respondent's recovery would be the fact that the deceased was her "only means of livelihood" and her "only support." In addition to that he said the amount of her recovery had not been left to speculation, and that respondent had brought in "cold computation figures", necessarily referring to the evidence showing the amount of the deceased's earnings, *Page 885 and not to any moral claim because of his long service, or because he was "just a brakeman." If any such theory was forecast it was well concealed, and appellant was not thereby precluded from objecting later on the grounds now urged. State ex rel. State Highway Com. v. Young, 324 Mo. 277, 286 (6),23 S.W.2d 130, 133(6).
Appellant's counsel did not object to the foregoing argument when it was made, or challenge it except to deny in his own argument that he had told the jury in his opening statement the deceased was "just a brakeman", and to insist he had conceded that the deceased had risen to the rank of conductor. The answering argument of appellant's counsel is quoted at some length in the principal opinion (pp. 14, 15-16), and need not be restated here. Examination will show it was confined to the merits, admonished the jury to decide the case under the law without prejudice or sympathy, and to refrain from returning a verdict for respondent because the money would be taken from someone other than themselves.
As to the facts, he denied the deceased was a "safe" man, without disparaging him and conceding his long service. Then he charged the deceased had not looked when he alighted from the train; that he stepped off with his left foot — implying it was to spare his crippled right foot — and denied the act was safe merely because the two brakemen in the deadhead crew had got off safely ahead of him. In that connection he referred to the evidence showing the deceased was older than the two brakemen and had a crippled foot.
The principal opinion says the argument of appellant's counselprovoked the final (closing) argument of respondent's counsel, which the opinion holds was retaliatory and not reversible error. So it is necessary to [535] turn to the final, or closing argument of respondent's counsel to see whether it was legitimately retaliatory. All of the assignments of error made in the brief of appellant's counsel are directed to it — except one not noticed herein. Practically all of the controversial part of that argument and the objections and exceptions thereto are set out in the principal opinion (pp. 16-20). Repeatedly respondent's counsel contended that the respondent was entitled to a verdict, or a "liberal" verdict, because of her husband's long service to the Alton Railroad, and the injury to his right foot 14 years before he died. Several of these contention are sketched below.
First, in explaining that the jerk of the train caused respondent's decedent to become unbalanced, respondent's counsel described him as "that poor fellow who had thirty-some-odd yearsservice for this company, the man who gave up the use of hisright foot for this company." Then he said: "The last act he (deceased) made in his life — the last thing he did — was serving the Alton Company . . . and now Charlie Miller (appellant's counsel) comes in here and has the effrontery to attempt to show this woman is not entitled to a verdict. After all the evidence and after all his service, and that *Page 886 . . ." Appellant's counsel objected that anything about the decedent's service to the railroad company had nothing to do with the case or injury, but the court overruled the objection, saying "Proceed with the argument."
Then respondent's counsel continued: "I don't believe Mr. Miller would therefore quite comprehend what this loss means to this poor woman. When, as I say, this man has given 32 years — 32years of his life to this railroad company, through smoke, through storm at times, through heat, through cold, through rain, through snow, through everything else, for 32 years and now to have his widow — to have it thrown at his widow in court that he had never raised beyond an extra conductor. I didn't like it. . . ."
Again he said: "And so, there are only a few more things that I want to tell you. Mr. Miller starts in here by saying he can't understand why I say I know this jury has its mind made up; then he begins telling you stories about the liberality of juries; why they should not be so liberal. I can understand that: I know what is on his mind; what is `eating on him'; he knows this jury is going to be liberal; he knows this jury is going to realize that Tom Griffith all but gave his right foot to this Company, that his right . . ."
Appellant's counsel interrupted inquiring if respondent's counsel was claiming the railroad was responsible for the decedent's right foot, and asserted that was improper evidence. Respondent's counsel answered that appellant's counsel had brought out that fact in the trial, himself. (Actually, respondent's counsel brought it out first.) The court overruled the objection, saying "Proceed with the argument." Respondent's counsel interjected that if appellant's counsel had not brought up the fact he (respondent's counsel) might not have said anything about it, but that it was a fact that years ago the deceased had injured his foot. The court overruled the objection.
Continuing, respondent's counsel said: "Now I say there is every reason why Mr. Miller should be apprehensive about howliberal this just is going to be here. I say that because after32 years; because after the crippling of the foot: I say that because at the very time Tom Griffith left this world he was thinking in terms of the Alton; he was trying to get those men over there in service for the Alton." Again counsel for both appellants objected and the court said "Proceed with the argument."
And finally, respondent's counsel closed with this: "I am not going to take the rest of my time. I think this jury will understand all the facts and circumstances. I think this jurywill be liberal with this woman whose husband gave 32 years ofhis life to this company; and gave his right foot, and thengave his life. And now I have but one question to ask — what will you give her in return?"
Now the testimony that the deceased had worked for the Alton Railroad 32 years was competent for some purposes. It could be admitted *Page 887 to show his experience, skill and (inferentially) judgment. In this case, in connection with evidence that he had not been advanced as rapidly as other men in the same service, it would tend to [536] show his lack of those attributes and throw light on his probable further earnings. And it was not objected to when offered by appellant. So too, proof that the deceased had sustained a permanent weakening injury to his foot 14 years before his death, would tend to prove the consequent disability made it negligent for him to attempt to alight from the moving train in the conditions shown. This evidence was first introduced by respondent. But the fact that the evidence was admissible for the foregoing purposes, did not justify respondent's counsel in using it in argument for a purpose for which it was not admissible, namely, as a direct measure of his damages, and the error was reversible. For the latter purpose it was the same as no evidence at all.1
As said in the Wells case just cited: "if counsel do not wish to have judgments obtained for their clients reversed, they must abstain from introducing testimony that is admissible for but one purpose, and after it is before the jury, attempt by argument based on such fact to show the existence of a different issue." It is obvious that the mere presence of such testimony in the record did not justify respondent's counsel in arguing to the jury that they should render a verdict for her, based on the moral or sentimental claims of her deceased husband or herself, because on his long railroad service in the past, and on any tort claim founded on an injury to his foot in that service 14 years before the negligence complained of, resulting in his death.
Actually, the claim in respondent's amended petition was for damages based on the fact that her husband was her sole and only support; that he contributed his earnings to her; that he was 58 years old and earning $350 per month at the time of his death; and that he was killed through the negligence of the two appellant railroad. And under the Federal Employers' Liability Act, the measure of respondent's damage recovery was her pecuniary loss, represented by what her deceased husband would have contributed to her during their joint lives. He died instantly and there could be no damages for pain and suffering. 36 Am. Jur., p. 840, § 420, p. 950, § 521; Berry v. St. L.-S.F. Ry. Co., 324 Mo. 775, 793(12), 26 S.W.2d 988, 996(21).
Respondent's counsel cites decisions based on particular facts and others holding that when the prejudicial argument goes to theamount *Page 888 of damages, and no such assignment of error has been made by appellant, error cannot be predicated on it. Citing: Sparks v. Auslander, 353 Mo. 177, 186(4), 182 S.W.2d 167, 172(11); Crews v. K.C. Pub. Serv. Co., 341 Mo. 1090, 1105, 111 S.W.2d 54, 62(11).
But in this case appellants did not concede liability and complain only of the amount of damages. On the contrary they contended respondent was not entitled to any damages because there was no basis for liability on any theory. It is held that prejudicial argument not based on the evidence is reversible error. Calloway v. Fogel, 358 Mo. 47, 213 S.W.2d 405, 409(4). And the same is true when it consists of "reckless assertions unwarranted by the proof," Monroe v. C. A. Rd. Co.,297 Mo. 633, 644(1), 249 S.W. 644, 646(1). See also; Walsh v. Terminal Rd. Assn., 353 Mo. 458, 469(6), 182 S.W.2d 607, 613(8); Dodd v. M-K-T Rd. Co., 353 Mo. 799, 806(6), 184 S.W.2d 454, 458(7-10).
In my opinion the judgment should be reversed and the cause remanded. Conkling, J., concurs; Clark, J., concurs in result.
1 64 C.J., p. 264, Sec. 282, text to note 84; 53 Am. Jur., p. 369, Sec. 463, text to note 16; Wells v. Wells, 144 Mo. 198, 203(4); 45 S.W. 1095, 1096(5); Kleinschmidt v. Globe-Democrat Pub. Co., 350 Mo. 250, 254 (IX), 165 S.W.2d 620, 623 (IX); State ex rel. State Highway Comm. v. Patton, 229 Mo. App. 331, 332(1), 77 S.W.2d 857, 858.
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