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Wells v. Gulf

APRIL 14, 1967.

ALBERT LEE WELLS, PLAINTIFF-APPELLEE,

v.

GULF, MOBILE & OHIO RAILROAD COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County; the Hon. JOSEPH J. BARR, Judge, presiding. Judgment affirmed.

GOLDENHERSH, J.

Rehearing denied June 9, 1967.

Defendant appeals from the judgment of the Circuit Court of Madison County entered upon a jury verdict in the amount of $75,000.

Plaintiff's complaint states a cause of action based upon the Federal Employers' Liability Act (45 USCA § 51 et seq.) arising out of an occurrence in April, 1963, while plaintiff was employed as a pipefitter in defendant's yards at St. Louis, Missouri. In its answer, as an affirmative defense, defendant pleaded a release executed on June 17, 1963. In his reply, plaintiff avers that the release is not binding because it was "exacted" under a misapprehension of fact and an "erroneous conception as to the nature and extent of the disability suffered by plaintiff," that the release is void because it is supported by "totally inadequate consideration," "it resulted from the overreaching by defendant and its agent of plaintiff in the procurement of same," and "it was procured from plaintiff by fraud and deception practiced upon him by the agents of defendant."

As grounds for reversal defendant contends that the closing argument of plaintiff's counsel was so inflammatory and prejudicial that the trial court abused its discretion in refusing to grant a new trial, that the verdict is excessive, and the court erred in giving two instructions tendered by plaintiff.

In its brief, defendant, in discussing plaintiff's closing argument states, "The legion of improper remarks hurled by Plaintiff's counsel at the jury contains unfortunate samplings of errors which have had a long and dishonorable tradition in jury trials. An enumeration of these errors reads like an infamous Who's-Who of abuse of argument which has been long condemned by the courts of all jurisdiction." Except for those instances hereinafter discussed, the record, however, shows no objection to the remarks of which defendant now complains.

During plaintiff's opening argument to the jury, there was one objection. That this objection was properly overruled is so obvious as to require no further comment.

Twice during plaintiff's final argument, defense counsel, without making an objection, interrupted the argument to say that he had not made statements attributed to him by plaintiff's attorney. In one instance, the court said "The jury heard it. It should not be personal between counsel"; and in the other, "It is argument."

In the course of the argument plaintiff's attorney said:

"There is evidence in these x rays here, Mr. Hoefert, and that is what galls you, there is evidence that this man's back has convexity from scoliosis, a bowing of the back. Smile, it is not your back, Mr. Hoefert. You don't have to suffer. You are not the man who is out of work. You'll eat your good steaks and everything whether this man gets any money or not."

At that point, the following transpired:

"Mr. Dobbs: I object to the personal remarks of this man.

"The Court: Objection sustained.

"Mr. Dobbs: I move that a juror be withdrawn, Your Honor, and a mistrial declared. This ...


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