536 S.W.2d 61 | Mo. Ct. App. | 1976
This appeal from a judgment of the Circuit Court of the City of St. Louis wherein the trial court sustained respondent’s motions for directed verdict on Counts I, III and IV of appellant’s Second Amended Petition and a jury found for the respondent on Count II of said Second Amended Petition, raises three grounds of alleged trial error which appellant contends entitle him to a reversal of the judgment and a remand to the trial court for a new trial. We have examined the three points and find them to be without merit. We therefore affirm.
Count I of appellant’s Second Amended Petition alleged that he entered into two written contracts with the respondent on July 8, 1963, and July 15, 1963, whereby respondent was to provide an electric burglar alarm system to appellant’s premises; that on November 23, 1967, the premises were burglarized and the burglar alarm system was unfit for the purpose for which it was intended in that it failed to notify the respondent that appellant’s premises were being burglarized; that by reason of the failure of the burglar alarm system the burglary of the premises went undetected so that merchandise, money and miscellaneous items were stolen from the appellant’s premises valued in an amount of $10,158.04. Count II alleged essentially the same allegations in Count I and further alleged that the failure of the burglar alarm system was due to the manner in which the system was
The evidence at trial was that in 1968, Gilbert Dolgin, d/b/a Dolgin Candy & Tobacco Co. moved into the premises at 8697 Market Street in the City of St. Louis. Prior to making the move he sought to ascertain from a number of burglar alarm companies different systems available to him for protection against burglaries. In his former location he had an alarm system consisting of a “local bell” on the outside of the store which when activated would ring loudly alerting those within earshot that an attempt to enter the business premises had been made or accomplished. He talked with Clarence Baker of Merchants Alarm Company and with Alexander Hill of respondent Potter Electric Signal Company sometime prior to July, 1963, and had decided to install an L.A.T. System (Late Alarm System) sold by Merchants with the local bell part of the system to be supplied by Potter. It was stipulated between the parties at trial that Potter had bought out Merchants sometime in June, 1963, but this was not revealed to Mr. Dolgin and Mr. Hill denied that he had any knowledge of the fact during his negotiations with Mr. Dol-gin prior to the execution of the contracts with Potter on July 8, 1963, and with Merchants on July 15,1963. During his negotiations with Mr. Dolgin, Mr. Hill recommended the installation of a “direct line system.” The difference between the two systems is that in the direct line system any interruption in the circuit of the burglar alarm system is immediately reported to the central office of the burglar alarm service which can immediately notify the police and the owner that the premises have been broken into. The Late Alarm System, on the other hand, consists of a bell located on the premises which is activated when a circuit is broken and commences ringing to attract the attention of anyone in the vicinity; then, within 35 seconds, an alarm is sounded at the central office of the burglar alarm service which can thereafter notify
On November 23, 1967, appellant was contacted by the St. Louis Police at his home and informed that his business premises had been burglarized during the night. He went from his home to the business and observed that a layer of bricks had been removed from the east wall of the building and the back doors were knocked in with one of the doors hanging on its hinges. The interior of the premises was in complete disarray. Merchandise valued at $10,150.00 was missing. Mr. Wagner, an employee of Potter, was at the premises when Mr. Dol-gin arrived and both checked the burglar alarm system. Mr. Dolgin observed that the shunt lock was in the “on” or activating position and that the wires leading from the bell to the alarm system inside the premises had been cut. It was the severing of these wires which deactivated the system thereby preventing transmission of the signal to the central offices of respondent. When these wires were spliced and taped together the system functioned/ Mr. Dolgin testified that Mr. Hill had told him prior to entering into the contract with Potter that the only way the alarm system could be turned off once it was turned on was by use of the “shunt key.”
Respondent’s evidence consisted of the reading of the two contracts, and at the conclusion of all of the evidence its Motions for Directed Verdict as to Counts I, III and IV were sustained by the trial court. Count II of appellant’s Second Amended Petition was submitted to the jury and, as stated above, a verdict for the respondent was returned.
Appellant’s first point is that the trial court erred in permitting the respondent’s counsel, “in closing argument ... to argue against pleaded causes of action on which motions for directed verdict had been previously granted, and which were not instructed on.” (Emphasis supplied).
Respondent argues that appellant did not preserve this claim of error for review for the reason that he did not object on these grounds in the trial court. We agree that not only for the reasons stated by the respondent has appellant failed to preserve this point for review, but although we have searched his motion for new trial we find no allegation of trial error therein directed to “closing argument” as stated in appellant’s first point relied on in his brief. The allegations in appellant’s motion for new trial, paragraphs 5 and 6 are directed to the trial court’s permitting respondent’s counsel to “state to the jury, during the defendant’s case ” that the Counts for mis
Appellant, in a memorandum of law on additional points relied upon in support of this point cites cases which hold that when a party has duly objected to a certain type of evidence and the objection has been overruled it is not necessary that he repeat the objection to further evidence of the same type. Brug v. Manufacturers Bank & Trust Co., 461 S.W.2d 269 (Mo. banc 1970), State ex rel. State Highway Commission v. Offutt, 488 S.W.2d 656 (Mo.1972). This rule he contends should be applied here because he made an objection prior to the beginning of trial with respect to any reference being made by counsel for the respondent to the fact that Mr. Dolgin’s brother, Joseph Dol-gin, was one of appellant’s counsel’s partners because the jury might feel that the appellant was not paying an attorney’s fee and was bringing the suit without any foundation by reason of the fact his brother happened to be an attorney. The trial court overruled this motion. Faced with that ruling appellant’s counsel stated to the trial court and opposing counsel that he himself would bring out the relationship on voir dire examination of the jury.
The difficulty with appellant’s position in this respect is that he has not preserved for review in this Court whether the trial court was guilty of error in the first instance in ruling that the relationship between the appellant and one of trial counsel’s partners could be mentioned to the jury. Furthermore, as we have pointed out heretofore, he has not property preserved this point for review for other reasons. We will not require that a trial court in the midst of argument he expected to refresh its recollection and refer back to pre-trial proceedings for the purpose of placing an objection in the proper context. That is trial counsel’s duty, and here he utterly failed to point out to the trial court, what earlier objection he was referring to. We rule this point against appellant.
Appellant’s second point is that the court erred in withdrawing the issues of fraud, misrepresentation and punitive damages from the jury. Here again appellant has failed to comply with the requirements of Rule 84.04(d) and once more has made an abstract statement without supportive reasons why the action of the trial court complained about was erroneous. We simply do not have the time to study the argument portion of the brief to determine the reason
Appellant’s final point — that the trial court erred in refusing to permit appellant to impeach Mr. Hill, whom appellant had called as his own witness, by use of prior inconsistent testimony given in a deposition is likewise without merit. The crux of appellant’s argument in support of this point is what he considers a conflict in Mr. Hill’s testimony relative to whether Mr. Dolgin signed the two contracts in Mr. Hill’s presence. Mr. Dolgin had testified that he had and Mr. Hill testified that when he left the contract with Mr. Dolgin and then departed from Mr. Dolgin’s office the contract was not then signed by Mr. Dolgin. We will not lengthen this opinion by setting out the contents of the deposition of Mr. Hill sought to be used as impeachment, but we agree with the trial judge who concluded that the statements contained in the deposition did not conflict with Mr. Hill’s testimony in court on this point. The rule with respect to this type of evidence is that some real inconsistency must appear prima facie before evidence of alleged inconsistent statements become competent. State of Missouri ex rel. Hy. Comm. v. Fenix, 311 S.W.2d 61, 64[3] (Mo.App.1958). The trial court is clothed with discretion with respect to the extent of cross-examination as to collateral matters, and here there was no real issue in the case concerning these contracts. Mr. Hill had been called as a witness for appellant and was not recalcitrant nor unfriendly to appellant despite the fact he was in the employ of respondent Potter. After refusing to permit the use of the deposition for cross-examination the trial court did allow appellant’s counsel to question Mr. Hill further and thereby elicit from Mr. Hill that he was not sure that when he left the contract with Mr. Dolgin it was not signed at that time by Mr. Dolgin. We conclude that the trial court did not err.
We affirm.
. Merchants Alarm Service shall hereinafter be referred to as “Merchants” and Potter Electric Signal Co. as “Potter.”