Minea v. St. Louis Cooperage Company
| Decision Date | 31 December 1913 |
| Citation | 162 S.W. 741,179 Mo.App. 705 |
| Parties | GEORGE MINEA, Respondent, v. ST. LOUIS COOPERAGE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted December 4, 1913.
Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.
Reversed and remanded.
Charles E. Morrow for appellant.
(1) The court committed reversible error in permitting the plaintiff to show that the machine in question was guarded after the accident. Miniea v. St. Louis Cooperage Co., 157 S.W. 1006; Bailey v. Kansas City, 189 Mo. 510; Schermer v. McMahon, 108 Mo.App. 836; Railroad v. Hawthorne, 144 U.S. 202. (2) The former suit of the son brought by the plaintiff, the father, as next friend, in which he sued for medicine, medical attention and nursing, is res adjudicata on plaintiff. The father having brought suit as next friend for his son for these items is estopped to afterwards sue for the same. Neumeister v. Dubuque, 47 La. 465; 23 Cyc., 1112; Rodney v. Gibbs, 184 Mo 9. The fact that the former suit was pending on appeal where a supersedeas bond had been given at the time of the trial of this cause was no defense to this plea of res adjudicata. Rodney v. Gibbs, 184 Mo. 14. To say the least this former cause was pending and the plaintiff could not maintain this action while it was pending. Rodney v. Gibbs, 184 Mo. 10. (3) The court erred in allowing the plaintiff to prove by witness Sylvester Miniea that Mr. Meyer, president of defendant company, testified on trial of the case of Miniea, by Etc., v. St. Louis Cooperage Company, that the machine in question could be guarded. It was hearsay, and did not bind the defendant. McDermott v. Radwood, 87 Mo 285; Phillips v. Radwood, 211 Mo. 438. The president of the company was but the agent of the company, and what he says against the company is hearsay, unless a part of the res gestae, or made in the line of duty. McDermott v. Radwood, 87 Mo. 301; Phillips v. Radwood, 211 Mo. 438. If this evidence was competent the bill of exceptions, containing what Mr. Meyer did testify and all he said, was the best evidence, and the court erred in permitting the plaintiff to prove by the witness Sylvester Miniea that he admitted the machine could be guarded. When the court ruled that the plaintiff had to introduce the whole of the written evidence or none the plaintiff refused to read it. This was in error.
Christian F. Schneider for respondent.
(1) Evidence of guarding of machine after accident was admissible in this case for the purpose of proving the allegation in the petition that it was possible to guard this machine. Brennan v. City of St. Louis, 92 Mo. 462; Bailey v. Kansas City, 189 Mo. 500; Rusher v. City of Aurora, 71 Mo.App. 424; Woods v. M., K. & T. Ry. Co., 51 Mo.App. 503; Walker v. Point Pleasant, 49 Mo.App. 248. (2) The plea of res adjudicata is not well taken in this case. Young v. Thrasher, 61 Mo.App. 414; Ketchum v. Thatcher, 12 Mo.App. 185; Zonker v. Mercantile Co., 110 Mo.App. 382; Ramming v. Railroad, 157 Mo. 477. (3) The statements made by Mr. Meyer under oath as a witness in the first suit, in which this defendant was likewise defendant, were competent and admissible. He was the president and manager and therefore representative of the defendant. Padley v. Catterlin, 64 Mo.App. 629; Byrd v. Hartman, 70 Mo.App. 57.
Action by the father for expenses incurred by him in having his minor son treated at a hospital, for medical and surgical expenses, loss of the services of the son in consequence of his being disabled from injuries received while in the employ of defendant, and which injuries, it is alleged, will render the earning capacity of the son less during the whole period of his minority, and for other expenses incurred in consequence of the injuries to his son, a lad under 16 years of age. Damages are laid at $ 500, for which judgment was demanded. From a judgment in favor of plaintiff, defendant appealed to the circuit court. The defendant filed no written pleading either before the justice or in the circuit court, but orally denied the averments of the statement filed, and claimed that plaintiff had been guilty of contributory negligence, and that the matter of expenses incurred by the plaintiff and his right to recover for them, had been adjudicated in the case hereafter referred to. Plaintiff recovered a judgment in the circuit court in the sum of $ 465, the trial being to a jury, from which, interposing a motion for new trial as well as one in arrest of judgment, and excepting to the action of the court in overruling these motions, defendant has duly perfected its appeal to this court.
The case above referred to is that of Anton S. Minea, a minor, by George Minea, his next friend, against this same defendant, 175 Mo.App. 91, 157 S.W. 1006. This is the same accident that was then before our court, the son there suing by his father as next friend. The averments of the petition are substantially as in the statement here filed and save as to the measure of damages there claimed as sustained by the son himself, here by the father for his expenditures and loss of services of the son, they are practically alike. We refer to the report of that case for a full statement of the facts connected with the accident, as also for the law applicable to those facts, deeming it unnecessary to repeat either here. It is proper to state that the case now before us was tried in the circuit court pending the appeal of the former case and before its determination by our court.
We are compelled to reverse the judgment in this present case for errors committed by the trial court "against appellant . . . materially affecting the merits of the action" (R. S. 1909, sec. 2082), the errors consisting in the admission of testimony.
It appears that plaintiff is blind. In company with his son, he went to the works of defendant, and one of the officers in charge accompanied him and his son to the place where the machine at which the accident had occurred was located. Plaintiff was asked if he had examined that machine. He said that he had felt over the machine. His counsel repeating the question, "You said you felt of that machine?" was interrupted by counsel for defendant with the objection that there was no evidence that the machine was in the same condition then or was the same machine then that it was at the time of the injury; that this plaintiff cannot tell what he saw or felt; that this is an attempt on the part of counsel for plaintiff to get something indirectly into evidence that is incompetent. To this counsel for plaintiff answered, that defendant had pleaded the general issue, had denied all allegations of the petition; that one of the allegations of the petition and a material one is that the machine could be guarded, and that he expected to show as a matter of fact that it was guarded. Whereupon counsel for defendant excepted to this statement and asked that the jury be discharged. The court declined to accede to this, defendant excepting. Whereupon counsel for plaintiff stated that one of the questions under the statute is whether the machine could be guarded, and if it could be guarded it would be the duty of defendant to guard it; that he took it that if it was guarded, there could not be any better proof of that fact. Counsel for defendant objected to this argument and statement, whereupon the court said: After some remarks exchanged between court and counsel, the court asked counsel for plaintiff what he wanted to prove by this witness. Counsel stated that he wanted to prove by this witness that that machine could be guarded for the reasons already stated. The court: "You may prove by him that he went there and examined it and found it was guarded." Mr. Morrow (for defendant): "After the accident?" Mr. Schneider (for plaintiff): "Yes, I will admit it was after." Whereupon the court overruled the objection to the admission of the testimony, counsel for defendant excepting, and the witness answered that he found the machine guarded at the time he visited it and he described how it was guarded.
It will be noticed that before admitting this testimony the learned trial judge, in passing upon an objection made when it was first offered, did say that if the testimony was competent at all, it was for the purpose of showing as a matter of fact that it was possible to guard the machinery. But he did not direct the jury to that effect. After this remark had been made considerable discussion followed between court and counsel, so that when it was finally admitted there was no ruling made by which the attention of the jury was called to the fact that it was admitted subject to any limitation. Hence while it is the general rule that it is the duty of counsel to ask an instruction limiting testimony admitted to a particular purpose, and that failure to do so is mere nondirection, we do not think that rule is applicable here. When finally admitted, the testimony was admitted without qualification. We are therefore compelled to hold that admitting it in the manner in which it was admitted, and without the court at the time calling the attention of the jury to the fact that it was admitted for a specific purpose only, is reversible error.
In the first Minea case, referring to the one heretofore before our court, very much the same line of testimony was offered, and...
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