*1 1246 1060, appeal. and dismiss the apply the rule therefore,

We, [Sec. , cited ; ’l Frick v. Miller’s Nat Ins. Co there and cases 1929, S.R. 855; 854, Co. 158, 213 W. Hanchett Bond v. Palm 156, S. Mo. 279 220 (Mo. S. W. App.), 673.] All concur.

Affirmed. Appellant. Inc., Respondent, Brothers, Smith E. J. Gilday, v. (2d) 50 191. S. W. May City Appeals. 23, 1932. Kansas Court of Sylvan Mosman, respondent. Rogers <&Busc^-d Bruner and Spurgeon L. Henry Conrad, Durham, Houts and S. L. E. Hale appellant. Smithson for

BOYER, reappears history case Gilday C. This with written (2d) Brothers, Inc., 118, 32 W. v. Smith and in State ex rel. Gilday (2d) v. S. W. 57. Trimble et After the last decision urgent upon appellant again placed the case was resubmission. presentation the docket for At the last there was point propriety made and that related to one of the remarks closing argument. points of counsel for All other originally purpose waived previous made were and a to abide the ruling upon verbally single them point declared. The was ar gued subsequent By ease submitted. communication filed papers with the ease and now before the court calls Supreme attention a recent decision of Court (McCloskey (2d) Koplar, 557), published 46 S. W. after the submission of this change and which is case said to the rule heretofore adhered rela- proof ipsa loquitur in a res oil the burden instructions tive in the last cited case declared says the rule so case; and approved considered and present case heretofore in the instruction *2 be extended should now erroneous; that this review fact and is in appellant adversely ruled to point heretofore the to include law change ruling to conform thereon and the instruction to as now declared. days March of 12th the 11th and at bar was tried on

The case not given was proof of then the instruction on the burden 1929, and of law then rule contrary to, with, applicable but was in accord the which our attention existing, The case to appellant so admits. and 4, and January 1932, by, Supreme Court is called was decided the con to a will be confined This review its effect is not retroactive. at the last submission. only complained of sideration of the error appeal in on joinder error First, This valid after for two reasons. brief or reply in brought point no new can be forward W. York, 41 S. of New v. National Acc. Soc. otherwise. [Jabin 821, 220 Mo. 879 ; Kuhlmann, App. (2d) 874, & Co. v. McConnon question required to meet the Respondent should be 825.] Second, l. urged Railroad, 236 Mo. c. on 397.] submission. v. [Stid law according to the be error or lack of error must determined the made cannot be right when done at the time of That which was trial. the change prescience of wrong by subsequent in law. The a the guide, may is not his judge law be tomorrow trial as to what the existing law and ad the duty prerogative and is to declare but his is not error he regard clairvoyance. to To avoid minister it without according to the law required foresee events and to declare to at a near or of last resort anticipated complexes mental the court of existing at according law day. If a be declared distant rule in error a later declaration, put court hour of the can the be the no, the authorities. and so do change in the rule? Reason answers not change prospective and judicial A of the law statutory or change the trial any subsequent to in such retroactive effect and time, according law at the case, of a has been conducted which parties rights of the and interests alter, not benefit or harm the does v. Haid May Co. Department Stores action. ex rel. to that [State 44, 53 ; (2d) Barlow Shawnee 567, 586, 38 S. W. 327 Mo. et 35, (2d) Co., Inv. W. 42.] of consideration the therefore, will directed to a review,

This .be strenuously argument. Appellant alleged misconduct error of objection the remarks in ruling contends of the court on The ar- erroneous. closing argument prejudicially the ease was of referred to gument be harmful to defendant said to first examina- The plaintiff on occasions. had examined the two who following July of counsel at the made tion was September accident, and second examination Skelly Company Oil to ascertain at the instance thereafter plaintiff employment with said take physical fitness of peti- a witness. The Dr. Newman as company. Neither side called blood heart, plaintiff’s injuries that his alleged part as a tion and permanently been weakened had vessels, blood circulation and plaintiff tended on the medical evidence behalf impaired; doctors, the instance Four at disability. one show resultant such as a witness Plaintiff called defendant, plaintiff. had examined regular who examined physician Dr. Burnett and also- called called trial. Defendant prior different on occasions its instance. physician who examined at greatly mini- jury of defendant’s counsel to The suffer; and plaintiff was mized heart affliction from which said to severely afterthought case; argued it was an *3 testimony by plaintiff, and type furnished criticized the of medical Dr. Newman referred fact that had been examined mentioned; aware of what that the doctor was two occasions September July, his examination and afterwards in showed Company; that Skelly Oil examining physician another for the as counsel said possession he was in full facts. Defendant’s among things: may be accused “Now, Gentlemen, other doctors making being partial respective sides, Dr. Newman to their but company no motive that examination down there for falsify Dr. regard It Newman to his condition.” was stated that man com- passed that as had no interest the matter and he petent commenting in reference to position. for the And in further “And the plaintiff’s witnesses, one of counsel said: defendant’s anything that remarkable man of all these doctors finds so out Gentlemen, you ob- Dr. about the situation is this man Burnett. You his demeanor served him witness stand. observed you you type damage I think saw and know suit doctor apparent you from his conduct that he I think was made is. history.” then you if counsel alluded don’t know his Defendant’s originally was not to the fact that the claim heart trouble gentlemen, “Now, petition, supplied later and said: was thing I primary forgotten, speculation and hazard the unless was Dr. case never been come into the that would have old Burnett had brought into the case.” jury, argument counsel addressed

Following plaintiff’s this which- heart affliction with referred to the extent of the following of which suffering, shows was and then the record complaint made: is Rogers: own of that fact because their is no denial There

“Mr. Why, gentlemen, says man Dr. medical said so. knew he it, it. In if fairness, all he wants be fair about I want to about produce ask you who was better able to of Dr. New- evidence man the defendant. than Just a moment. That is objected to for the

“Mr. Smithson: it improper. reason is Rogers: spoke Well he of it.

“Mr. equally plain- He was at least available to the “Mr. Smithson: tiff. Objection overruled.

“The Court: ruling action, “To which order and of the court the defendant duly excepted excepts. then and there at the time and still was He doctor and the confidential “Mr. Smithson: relation exists there. Overruled.

“The Court: action, ruling “To which order and of the court the defendant duly then and excepted excepts.” there at the time and still exception objection, ruling argument There was no other or complaint which is now made.

It foregoing argument con- contended against an tains unfavorable failed inference defendant because it Newman; argument wholly unjustified call that such was ruling or was otherwise, permitting of the court it retort argument Respondent per- reversible error. contends that the reply provoked missible under the as a or retort circumstances Newman, of defendant’s in reference to Dr. *4 equally and, effect, Dr. was in fact that the evidence of Newman argument available to the defendant. full of counsel for both The apparently record, it, course, of sides is set forth in the and all of presence judge was in the better delivered of the trial and he was any purport person. able to determine than its full and effect other objections see-any He the overruled and we do not reversible made ruling. quoted of apparent part error in such It is from the the objection argument ground that to the record the was based the plaintiff that draw permitted should not be an unfavorable in- ference from the of to call the doctor “he failure defendant because equally plaintiff;” was at least available the and because “he was there.” plaintiff’s doctor and the confidential relation exists objection equal The first avail- reason for the was an admission of ability, reason, evidence, not under the was well second Dr. Newman disin- founded. Defendant’s counsel referred as terested; possession all as “no mo- facts, of the one who had and jury falsify;” tive to infer that other intimated and left the witnesses have had His did sinister and falsified. state- motives carry Dr. called the inference that if Newman had been

ments clear falsified, given not have but evidence that as a witness he would They injury by as contended for defendant. have shown the would he clearly imply plaintiff that if called Dr. Newman would also given plaintiff with testimony and in conflict have detrimental testimony plaintiff medical offered which was characterized the damage coming indirectly(cid:127) false, directly type as from “a and as of having history. Appellant a insists that suit doctor” and from one argument solely to of defendant’s counsel was referable the weight up- it was not a of evidence the case and that comment nonproduction possible of Dr. as It is Newman a witness. interpret argument, possible to so it is also not but most likely argument jury would to mean that understand called Dr: in order to all the should have Newman reveal facts, imputed nonproduction and it of a wit- falsity. ness If equally available, who would not the witness was imputation improper. was In of plain implication view the contained offered we think it provocation defendant sufficient the statement say plaintiff’s reply. counsel in To that the evidence of Dr. Newman equally was available to the defendant was no more than defendant true, fully admitted to be and justified was mild retort under the circumstances. Plaintiff physician called his own and another doctor fully afflictions, thereby ques who testified as to his and all waived privilege tion of testimony. other similar The first examination plaintiff by Dr. Newman was at at existed, and that time the confidential relation but at the second examination there no such relation. The examination Skelly was then made at the instance, Company Oil whom represented, testimony which he given could have knowledge acquired from full at that time was not in the ex clusive plaintiff, control of but it produced could have been with equal facility by the defendant. The comment Supreme of the Court in disposing applicable of the case is to the actual condition of the record as stated Gilday above. ex rel. et Trimble [State (2d) 57, 59, W. and cases It judgment results that cited.] should be The affirmed. Commissioner so Campbell, recommends. C., concurs.

PER foregoing CURIAM: The opinion of Boyer, C., adopted *5 judgment opinion of the court. The All affirmed. concur.