Armour & Co. v. Kollmeyer

• Decision Date: 29 April 1908
• Docket Number: 2,694.
• Citation: 161 F. 78
• Parties: ARMOUR & CO. v. KOLLMEYER.
• Court: U.S. Court of Appeals — Eighth Circuit

161 F. 78

ARMOUR & CO. v. KOLLMEYER.

No. 2,694.

United States Court of Appeals, Eighth Circuit.

April 29, 1908

Syllabus by the Court

The granting or refusing of a motion for a continuance is intrusted to the judicial discretion of the trial court, and it is an abuse of that discretion only that is fatal error.

Proof of due diligence to procure the attendance or the testimony of an absent witness, and of facts which present reasonable grounds to believe that his attendance or evidence will be secured at the next term, is essential to the right of the moving party to a continuance or an admission of the statement of the witness' testimony as evidence.

Proof of reasonable, but futile, diligence to procure the attendance or testimony of a witness from March 20, 1906 until May 7, 1906, and from April 29, 1907, until May 3 1907, without evidence of diligence between May 7, 1906, and April 29, 1907, is insufficient.

There was substantial evidence that the collision of two one-horse teams, induced by the negligence of defendant's driver caused a fright of the plaintiff that produced an impairment of nervous power, weakness and suffering.

Held, inasmuch as the natural and probable effect of such a collision, which a person of reasonable prudence would have anticipated, was some fright, shock, and injury, the fact that the extent of it was indeterminate and impossible of anticipation was no bar to a recovery of compensation for the actual pecuniary loss caused by the negligence.

The general rule is that, if inadmissible evidence has been received during a trial, the error of its admission is cured by its subsequent withdrawal before the trial closes and by an instruction to the jury to disregard it.

There is this exception to the rule: Where the evidence thus admitted is so impressive that in the opinion of the appellate court its effect is not removed from the minds of the jury by its subsequent withdrawal, or by an instruction of the court to disregard it, the judgment will be reversed on account of its admission, and a new trial will be granted.

Where a request for an instruction contains two or more propositions of law, one of which is unsound, there is no error in a refusal to grant it.

George B. Webster, for plaintiff in error.

W. R. Gentry (W. L. Bohnenkamp, on the brief), for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and PHILIPS, District Judge.

SANBORN Circuit Judge.

This writ challenges a judgment of $4,000 against Armour & Co., a corporation, for damages on account of personal injuries inflicted on Kollmeyer, the plaintiff below, by the alleged negligence of one of its drivers. Kollmeyer alleged in his pleading that, as he was driving in a one-horse spring wagon slowly south along the west side of Fourteenth street in St. Louis, Mo., the defendant's driver drove its one-horse meat wagon rapidly into collision with his wagon, raised one side of it so that there was reason to believe, and the plaintiff did believe, that there was imminent danger that it would be overturned, and would throw him into the street and injure him; that he thereupon jumped to the street, where he struck with great force, and by reason of the force and shock of the collision and of striking upon the street he was greatly shocked and injured. The defendant answered that it was guilty of no negligence, and that, if the plaintiff sustained any injury, it was caused by his negligence. There was substantial evidence of these facts in support of the verdict, although some of them were not established by uncontradicted evidence. Fourteenth street extends from north to south, and Biddle street crosses it at right angles. The plaintiff was a contractor, and he was walking his horse, attached to a light spring wagon loaded with a dozen sticks of lumber, 2x4, 16 feet long, south along the west side of Fourteenth street, near its intersection with Biddle street, with the intention to go east on Biddle street. The defendant's driver was driving rapidly a horse attached to a wagon loaded with 1,200 pounds of meat east along Biddle street behind a stake wagon, with the intention to go north on Fourteenth street. There is a descending grade on Biddle street from the west to its intersection of Fourteenth street. There was a shed 12 feet high, which extended along the west side of Fourteenth street north from Biddle street, and obstructed the view of the former street from Biddle street west of Fourteenth street. As the stake wagon arrived at the intersection of the line of the west curb of Fourteenth street with Biddle street, the defendant's driver guided his horse along the north side of this wagon around the corner into Biddle street, so that one of the shafts of the wagon struck the west side of the plaintiff's spring wagon, raised it a foot or 18 inches, the plaintiff slid toward the east, was afraid his wagon would be overturned and that the defendant's team would run over him, and he jumped to the ground, a distance of about 4 feet.

Before this collision he had been a healthy man, and had earned $6 per day. The shock of the collision and of his alighting upon the street produced traumatic neurasthenia, reduced his earning capacity about 50 per cent., caused him much suffering, considerable expense for medicines and medical service, and rendered it doubtful whether or not he would ever regain his former good health.

The case was called for trial on May 1, 1907, and the court denied a motion by the defendant to continue it upon the ground that its counsel was engaged in the trial of another case in another court. But that ruling will not be discussed, because the defendant was not prejudiced thereby, as its counsel was present throughout the trial, which was not commenced until May 3, 1907.

On the latter day the defendant made another motion to continue the case upon the ground that one Rombaugh, an important witness, was absent and could not be found. The defendant set forth in affidavits material testimony which the absent witness would give, if present, that a subpoena had been issued for him, and that diligent search and endeavor had been made to find him from April 29, 1907, until May 3, 1907. The fact also appeared, however, from evidence presented to the court, that the defendant had caused diligent search to be made for this witness from March 20, 1906, until May 7, 1906, had during that time caused subpoena to be issued for him and to be delivered to one Trimmer for service upon him, but that the witness had then moved from his former address and could not be found at that time. One of the errors specified is that the court below denied the motion for continuance based upon this showing, without requiring the plaintiff to admit that the witness would testify as stated in the moving affidavits. But the granting or refusing of a motion for continuance is intrusted to the judicial discretion of the trial court, and it is only when the record discloses an abuse of that discretion that an appellate court will reverse a judgment on account of its exercise. No such abuse appears from this record.

It is only when, in addition to the other requirements of section 685 of the Revised Statutes of Missouri of 1899, the moving party states facts in his affidavits which show the use of diligence to obtain the witness or his testimony, and facts which show reasonable grounds for belief that his attendance or his evidence will be procured at the next term, that a court is required by the statute and the practice to grant a motion for continuance, unless the opposing party will admit that the witness would testify as stated by the moving party, and that statement is received in evidence as his testimony. Rev. St. Mo. 1899, Sec. 687. The defendant failed to comply with each of these requirements. The facts that it searched in vain for the absent witness from March 20, 1906, until May 7, 1906, and from April 29, 1907, until May 3, 1907, without any proof or statement that it made any effort either to find him or to serve him with a subpoena, or to take his deposition between May 7, 1906, and April 29, 1907, did not evidence due diligence to obtain him or his testimony, and did not furnish reasonable grounds to believe that his attendance or his testimony would be procured at the next term of the court.

Counsel complain because the trial court refused to grant their request for a peremptory instruction in favor of the defendant. The evidence was conclusive that no break of any bone, no strain or tear of any muscle, no abrasion of the skin, and no external appearance upon the person of the plaintiff of any injury resulted from the collision or the jump. But there was substantial evidence that the collision and the jump caused fright and neurasthenia and a reduction of nervous power, which impaired the plaintiff's earning capacity and resulted in undue fatigue on slight exertion, in pain, in expense, and in a condition which rendered it doubtful whether or not he would ever recover his former health. There was substantial evidence that the fright was...