Ballinger v. Gascosage Electric Cooperative

ROBERTSON, Judge,

concurring in part and dissenting in part.

I concur in all but Section 4 of the majority opinion. In my view, plaintiffs counsel’s closing argument was improper and the trial court’s failure to take corrective steps constituted reversible error. In dissent, and with modification, I adopt portions of the well-reasoned opinion of the Court of Appeals, Southern District, relating to closing argument, without further attribution. The Honorable George M. Flanigan authored the opinion for a unanimous panel.

Gascosage’s third and fourth points on appeal complain of certain portions of the final argument of plaintiff’s counsel, Mr. Strong. Gascosage asserts that the challenged portions improperly suggested to the jury that Gascosage was insured, asked the jury to ignore fairness and justice in assessing damages, and improperly argued “concerning remittitur-additur.”

At the instruction conference, Mr. Brown and Mr. Oliver, attorneys for Gascosage and Tel-Elec, respectively, announced they would not argue that the verdict should be tempered because Gascosage is a small coop or Tel-Elec is a small, family-owned corporation. The trial judge indicated that he thought those arguments were improper, but if made, he would allow rebuttal retaliatory arguments on how the verdicts would be collected:

THE COURT: I indicated yesterday that, especially, uh, with Tel-Elec being owned by Mr. Hubnik and his wife, that I couldn’t see how [the size of Gascosage] in any way could be proper argument, that it could only be for the reason of trying to get the jury to have sympathy and lower their verdict if they so find, or something of that type. And as I indicted yesterday, I’m not going to prohibit that argument, ’cause maybe there might be some way come up [sic] where it would be proper argument. But I also said that, that I would indicate — and I’m now so indicating — that if that argument is made, I will tell you right now I feel that retaliatory argument of look, ladies and gentlemen, don’t worry about how we collect this verdict, would be proper rebuttal retaliatory argument. So, uh, you better do that at your own risk. One, you’ve got to find a way that it’s proper to argue that, and, number two, you’re opening yourself up to some argument that the Plaintiff couldn’t otherwise make.

(Emphasis added.)

Responding to a question by Mr. Oliver on the scope of permissible argument, the judge added:

THE COURT: If you open up [the subject of family ownership of the corporation], Mr. Oliver, it’s going to be opened up, and I’m going to let the Plaintiff stand up there — and I don’t know whether they will or not, but that’s a risk you’re going to take — stand up there and say, “Ladies and gentlemen, it’s not for you to worry about how these verdicts are correct, collected.”

At the conclusion of the final argument of counsel for Tel-Elec, which was the last defense argument, the following occurred:

BY MR. STRONG: And if it please you, officers of the Court?

I have to admit I’m a little bit indignant about some of the things that have *519 been said, and we’re going to start with this damage instruction.

(Mr. Strong displays instruction on overhead projector.)

This damage instruction says that, “You should determine the total amount of Plaintiff Brent Ballinger’s damages to be such as will fairly and justly compensate Plaintiff Brent Ballinger.” There is nothing in this instruction, there is nothing in any instruction that says when you assess the total amount of damages to Brent Ballinger, you need to try to be fair to the Defendants or anyone.

Remember the duties of the parties in this courtroom. The jury’s job is to assess his total damages. Doesn’t make any difference whether someone thinks it’s fair or unfair to a Defendant or a Plaintiff. It’s then the Judge’s job to enter a just judgment, and it’s the parties’ job to live with it. Then—

MR. BROWN: Well, Your Honor, I object to that. It misstates the law.

THE COURT: Well, the— .

MR. OLIVER: I join in that objection, also, Your Honor. It’s clear that the standard is to fairly and justly compensate Mr. Ballinger. That’s—

THE COURT: The objections will be overruled.

MR. STRONG: That is just exactly the point I’m making. Mr. Oliver also said you will determine how much will be paid by the Defendants, and that is not true. There is no evidence in this case that the Defendants will have to pay one penny of any judgment entered. It’s not for you to determine.

(Emphasis added.)

At the ensuing bench conference, both defense counsel moved for a mistrial. Tel-Elec’s counsel moved in the alternative that the jury be instructed to disregard “that statement by Mr. Strong.” Tel-Elee’s counsel also noted at that point that he had endeavored to steer clear of any argument giving the inference that Tel-Elec was a family-owned corporation to avoid opening up the subject.

The following then occurred at the bench conference:

THE COURT: All right. The request for mistrial is going to be denied. Now, however, though, we are [sic], don’t go back to the additur-remittitur or calculations that you — stay, stay away from that from this point on. Do you understand what I’m saying? Don’t, don’t go back to, “The Court will enter a just verdict.”

MR. STRONG: All right.

The court also denied the request that the jury be instructed to disregard the statement.

Immediately thereafter, the following then occurred before the jury:

MR. STRONG: It is of no concern who will pay this judgment.

MR. OLIVER: Your Honor—

MR. BROWN: That’s just what we were talking about. I can’t believe that.

MR. OLIVER: —may I approach the bench for a moment, please?

THE COURT: You may approach the bench.

Defense counsel renewed their request for mistrial and the alternative request for an instruction to disregard. Plaintiff’s counsel did not offer any rationale for his argument and Mr. Brown again noted that neither defense counsel had remarked upon anything that would provoke the improper argument.

The colloquy at the bench included the following:

MR. BROWN: The, the confusion in this is something that Mr. Strong begins with himself, I think, and that is to say that the jury does not set the amount of damages in this case when we know they darn well do. The only thing the Judge makes is a — not to diminish your role in this — but is to make a, a pretty much ministerial calculation of, of what percentages apply to what number. You enter a judgment in the case which is a formal judgment, but you don’t determine the amount of damages, the jury does.

THE COURT: Well, first, the rule, the request for a mistrial is going to again *520 be overruled, and Mr. Oliver, you must have misunderstood what I cautioned Mr. Strong about. I said stay away from, uh, an additur-remittitur type of argument and the Court entering a just verdict. I didn’t say that he had to stay away from it’s no concern who has to pay the judgment. Now, now that we’ve done this, let’s don’t spend the next hour on its no concern who. Let’s move on to something else here pretty quickly.

“[T]he improper injection in a jury tried case that the defendant was covered by liability insurance constitutes error, especially so if thrown in purposefully or in bad faith.” Means v. Sears, Roebuck & Co., 550 S.W.2d 780, 787 (Mo. banc 1977). “[W]hen the trial judge is called upon to rule on the question, much must be left to his sound discretion, and only where there is a manifest abuse should we interfere.” Id. at 788 . Conduct of counsel in misstating the law “must always be condemned, whether due to inadvertence or to base motives. If the trial court overrules the objection, thereby condoning the misstatement, reversible error is almost inevitable.” Halford v. Yandell, 558 S.W.2d 400, 411-412 (Mo.App.1977).

Counsel’s statement that “there is no evidence in this case that the defendants will have to pay one penny of any judgment entered,” coupled with his later statement that “it is of no concern who will pay this judgment,” conveyed to the jury that the defendants were insured. Indeed, plaintiff’s brief as respondent does not seek to place any other construction on the statements. Plaintiff seeks to justify those two statements by claiming they were retaliatory.

The record, including voir dire, on which plaintiff bases his retaliation argument, does not support plaintiff’s position. Plaintiff emphasizes these portions of the final argument of Gascosage:

It’s also hard to be sued, [Gascosage] to be sued under the circumstances of this case and to have somebody come in here and ask for the kind of money that Mr. Ballinger’s lawyers are asking you to assess against my client on the basis of its involvement with or participation in or connection with, whatever it may be, in this case.... Why in the context of this case didn’t somebody ask you to do what was just and fair among these parties based on what you’ve heard in this case and what’s been proven to you about Mr. Ballinger’s losses? Well, I’m asking you to do that. I’m asking you to follow the law that you said you could at the beginning of this case and to be fair to the parties to this case, and I mean all of them, all of them.... I’m certainly not going to tell you, that if you find that with respect to some conduct of Eazy’s that, that you find was negligent and that was causative in, in causing Mr. Ballinger’s injuries, that you shouldn’t give him anything. He has those losses. But I want to ask you to exercise fairness and justice to the parties to this case.... It’s easy for his lawyers to come in here and ask for a lot of money. I’ve looked at Mr. Ballinger. Do you believe, do you believe — and you’ve had a chance to see him — do you believe that Mr. Ballinger thinks he should walk out of this courthouse with the kind of wealth that Mr. Strong is talking about? Do you really believe that Mr. Ballinger thinks he’s got that coming for what went on out there that day? Now I really don’t believe he does, and I don’t believe you believe that that’s just or fair_ And if you think Mr. Ballinger had a percentage of fault in this case, then you put that down, and then you consider what’s fair and reasonable with respect to damages to this case. And I’m sure you and your collective numbers will be, can be, we’re confident that you will be fair and just to all of the parties in this case, including my client.... You’ve heard from me for the last time. But I’ll ask you to make my answer, Mr. Hamilton’s answer, and the, the Cooperative’s answer for us and do justice to the parties in this casé.

Although it was not necessary that he do so, plaintiff did not object to the foregoing argument when made nor does the foregoing argument contemplate the family ownership issue discussed at the instruc *521 tion conference. Gascosage’s argument simply does not justify the remarks contained in plaintiffs final argument.

Plaintiff also cites the following excerpts from Tel-Elec’s final argument:

The other aspect of the case that’s before you and which you will reach if you decide in the Plaintiff’s favor on the issues of liability is the issue of damages; that is, did Brent Ballinger sustain damages as a result of the occurrence mentioned in the evidence? Now, the two areas of contention, of course, are liability; that is, do the Defendants have to pay, and is the Plaintiff — uh, excuse me, or — and the second aspect of the liability question is, is the Plaintiff at fault for the injuries that he suffered, or is he partially at fault? And on the verdict forms that I’ll, I’ll show you in a moment, you can assess a percentage of fault to the Plaintiff for the conduct if you find that he was at fault in part for the injuries that he suffered. On the question of damages, of course, that is, the bottom line in that regard is, if you find in the Plaintiff’s favor on the question of liability, how much do the Defendants that are before you here today have to pay to compensate the Plaintiff for his injuries? And that is the word which you see on the instruction, to fairly and justly compensate Plaintiff for his injuries....

There are some extremely vast sums that have been put up by Mr. Strong on the chart.... But that doesn’t take you away from the fact that your duty as a juror is to provide justice for everyone who’s here before you today, and that’s Tel-Elec Company, and that’s Gascosage Electric Cooperative, and that includes Mr. Ballinger_

It says here that the, the Court will compute Plaintiff Brent Ballinger’s recovery by reducing the amount that you find Plaintiff’s total damage by any percentage of fault you assess to Brent Bal-linger. So you are going to determine how much, what money if any that Brent Ballinger will recover in this case and what will be paid by the Defendants.

Nothing in the foregoing argument justified plaintiff’s final argument, nor did plaintiff lodge an objection at the time the argument was made.

The damage instruction is based on MAI 37.03 [1986 New]. MAI 4.01 [1980 Rev.] also contains the language, “such sum as you believe will fairly and justly compensate plaintiff.” It cannot reasonably be argued that the word “fairly” applies only to one side of the lawsuit. The sum awarded should be fair to both sides. Counsel’s argument that there was nothing in the instruction “that says when you assess the total amount of damages to Brent Balling-er, you need to try to be fair to the defendants or anyone” is a misstatement of the law and an improper characterization of the word “fairly.” That misstatement was not corrected by the trial court. Instead the court, in the presence of the jury, overruled the objection.

The error was compounded by counsel’s statement that it “doesn’t make any difference whether someone thinks [the jury’s assessment of total damages] is fair or unfair to a defendant or a plaintiff. It’s then the judge’s job to enter a just judgment.” Such an argument is an improper appeal to the jurors to fail to perform their own function in assessing the damages or at least conveyed to them the message that any unfairness in their assessment of damages would be corrected by the judge, who had a duty to enter a just judgment. The implication was that there was not duty upon them to arrive at a just verdict because any unfairness would be corrected by the court.

It is unnecessary to determine whether each of the foregoing errors, standing alone, would justify the grant of a new trial. In combination the errors required corrective action on the part of the trial court, either the declaration of a mistrial or at the very least an instruction to disregard them coupled with appropriate corrective remarks. This error is prejudicial; it entitles Gascosage to a new trial. In its separate appeal, Tel-Elec also objects to plaintiff’s final argument and is entitled to the same relief.

*522 Because the majority finds plaintiffs counsel’s closing argument proper, I respectfully dissent from that portion of the majority opinion. For the reasons expressed, I would reverse the judgment of the trial court and remand for a new trial.