Courter v. George W. Chase & Son Mercantile Co.

• Decision Date: 07 November 1927
• Docket Number: No. 15454.,15454.
• Citation: 299 S.W. 622
• Parties: COURTER v. GEORGE W. CHASE & SON MERCANTILE CO.
• Court: Missouri Court of Appeals

299 S.W. 622

COURTER v. GEORGE W. CHASE & SON MERCANTILE CO.

No. 15454.

Kansas City Court of Appeals, Missouri.

November 7, 1927.

Appeal from Circuit Court, Andrew County; Guy B. Park, Judge.

Action by Mollie Courter against the George W. Chase & Son Mercantile Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See, also, 266 S. W. 340.

Culver, Phillip & Voorhees, of St. Joseph, for appellant.

Pross T. Cross, of Lathrop, and M. P. Murphy and Ryan & Zwick, all of St. Joseph, for respondent.

FRANK, C.

This is an action to recover damages for the death of plaintiff's husband, alleged to have been caused by the negligence of defendant. The verdict and judgment in the trial court was in favor of the plaintiff in the sum of $5,000, and defendant has appealed.

The facts show that on January 17, 1921, deceased was employed as a laborer by the defendant, a candy manufacturer in St. Joseph. On the morning of that day he was engaged in carrying merchandise from the sidewalk into one of defendant's buildings. In doing this work he was required to pass over a runway leading from the sidewalk to a platform in front of a door to the building. This runway was about 14 feet in length, with one end resting upon the sidewalk and the other end elevated about 31 to 36 inches above the lower end; the width of the runway was about 39 inches. It was parallel to the building and adjacent thereto. The platform was about 4 or 5 feet long and 33 inches wide. The runway consisted of four planks, with cleats about 6 inches in length running crosswise up its center. On the day in question these cleats had been worn smooth and thin and had beveled edges.

Deceased's son, Fred Courter, was working with him at the time. He testified, in substance, that snow, ice, and sleet had been permitted to remain on the platform against the cleats thereon; that he and deceased made a few trips over the platform on the morning in question, when deceased went to Myers, the foreman, and told him that the runway was very slick and asked permission to go to a nearby cinder pile to obtain cinders to place on the runway, and to a pile of lumber on another floor of the building in order to get a piece of timber to fasten on the outside of the runway as a guard rail; that the foreman replied to deceased, "No; you and your boy go out and get those pails off the sidewalk out of the weather;" that deceased then told the foreman that there should be a guard rail on the platform or runway, to which the foreman replied, "I will have that taken care of right away; get that stuff in;" that he and deceased then returned to their work; that nothing was done to the runway, and in about one-half hour thereafter, as deceased was walking up this runway, carrying a string of wooden buckets nested together, his feet slipped and he fell to the paving below; that as he fell his side struck on the buckets or on the runway, and he fell face downward on the pavement; that he was standing on a platform, at the top of the runway, about 3 feet from deceased at the time he fell; that deceased's feet were on the snow and ice at the time they slipped from under him.

Searcy, a witness for plaintiff, testified that on the morning of the accident he heard deceased tell defendant's foreman that the runway was slick and in bad shape and that he would like to get some ashes or something to put on it in order to avoid slipping; that the foreman at that time said to deceased, "You go ahead, get your work in; I will have that taken care of;" that deceased then asked the foreman if it would not be a good idea to put a rail up there; that the foreman replied, "I will have that done too."

Plaintiff's testimony tends to show that as the result of deceased's injuries he died 24 days later.

Defendant's foreman, Myers, testifying on behalf of defendant, denied that he had a conversation with deceased on the morning of the accident relative to the slippery condition of the runway as detailed by plaintiff's witnesses Fred Courter and Searcy, and denied that he promised deceased to remedy such condition by placing cinders and a guard rail on the runway.

On cross-examination, Myers was asked if he was not at the home of deceased some days after the injury, and if at that time and place he said to deceased that he was sorry this had happened, and it would not have happened' if he had done what he promised deceased he would do, to which deceased replied that it would not have happened if he (Myers) would have let him do what he wanted to do.

Myers denied having such a conversation with deceased. Plaintiff's witnesses Mrs. Hall and Lora Smith testified in rebuttal that Myers did have such a conversation with deceased, that some days after the injury they were at the home of the deceased, and that Myers had such conversation with deceased at that time.

At the close of the evidence, defendant requested, and the court refused to give, instruction F, which told the jury, in substance, that the alleged conversation between Myers and deceased at his home some days after deceased's injury was no evidence that Myers had a conversation with deceased on the morning of the accident, or that he (Myers) promised to put cinders or a guard rail on the runway. Contention is made that the court erred in refusing this instruction, and erred in not limiting the rebuttal testimony of Mrs. Hall and Lora Smith to the impeachment of the evidence of Myers.

At the time the rebuttal testimony of Mrs. Hall and Lora Smith was offered, appellant objected to its introduction on the ground that it was hearsay and that no proper foundation had been laid for its admission. This objection was overruled. The propriety of the court's action in admitting this evidence, and in permitting the foundation to be laid for its admission, is not challenged in this court. The contention here made is that the effect of such evidence should have been limited to the impeachment of the evidence of defendant's foreman, Myers. We agree that statements made by defendant's foreman, Myers, to deceased several days after the injury, and not while in the performance of his duty to his master, are mere expressions of an opinion as to what might have happened under different conditions, are no Dart of the res gestæ, and are not binding on appellant. Facts should be established by the sworn testimony of a witness who has knowledge of such facts and not by his unsworn statements, unless the party against whom the statement is offered authorized the making of such statement. A master is considered as bound only for the actual conduct of the servant while in the performance of his duty and not for whatever he might say he had done, and therefore is entitled to proof of such conduct by original evidence where it can be had, excluding all declarations of the agent made subsequent to the act to which they relate and out of the course of his employment. It is clear that Myers was not representing appellant at the time he was talking to deceased at his home, several days after the injury; therefore statements made by him at that time are no evidence that deceased, on the morning of the accident, notified Myers of the slippery and unsafe condition of the runway, or that Myers promised to remedy such condition by putting cinders and a guard rail on the runway. Redmon v. Metropolitan Ry. Co., 185 Mo. 1, 84 S. W. 26, 105 Am. St. Rep. 558; Atkinson v. American School of Osteopathy, 240 Mo. 338, 144 S. W. 816; Cross v. Northern Central Coal Co. (Mo. App.) 186 S. W. 528; Carson v. St. Joseph Stockyards Co., 167 Mo. App. 443, 151 S. W. 752; Parr v. Illinois Life Ins. Co., 178 Mo. App. 155, 165 S. W. 1152; Lee v. St. Louis M. & S. E. R. Co., 112 Mo. App. 372, 87 S. W. 12.

After Myers denied making these statements to deceased, the testimony in question was admissible, for the purpose of impeachment. The rule is well settled that evidence which is competent for any purpose may not be excluded on the ground that it is incompetent for other purposes. Sotebier v. Transit Co. 203 Mo. loc. cit. 721, 102 S. W. 651. It is also equally well settled that, when evidence, competent for one specific purpose, is admitted, the court, if requested so to do, should limit the effect of such evidence to the purpose for which it is competent.

The court may limit the effect of such evidence when admitted, or by instruction at the time the case is submitted to the jury. Downing v. St Louis-San Francisco Ry. Co. (Mo. App.) 285 S. W. 791, 792; Bujalo v. St. Louis Basket & Box Co. (Mo. App.) 227 S. W. 844, 846; Wright v. Hines (Mo. App.) 235 S. W. 831, 832; Sotebier v. Transit Co., 203 Mo. 702, 721, 102 S. W. 651.

At the time the impeaching evidence of Mrs. Smith was admitted over the objection of defendant, the court said:

"I think it is admissible for this reason. Mr. Myers was asked the direct question, and without objection it was answered. And for the purpose of impeachment I think it is admissible not to prove the ultimate fact but for the purpose of impeachment."

After the admission of this evidence the following occurred:

"To which action and ruling of the court the defendant, by counsel, then and there duly excepted at the time and still excepts.

"Mr. Voorhees: We wish your honor would instruct the jury that this evidence is admitted for the purpose of impeachment only, and that it is not any evidence that any such thing ever occurred as this conversation between

"Mr. Cross (interrupting): Will the instructions be in writing?

"Mr. Voorhees: Courter and Myers; that is, that he asked for a guard rail or cinders.

"The Court: The court will instruct the jury at the proper time.

"Mr. Voorhees: I mean in connection with this evidence, as far as this witness' testimony is concerned.

"The Court: I will at the proper time.

"To which action and ruling of the court the defendant then and there duly excepted at the time and still excepts."

The same...