Bartlett v. Kansas City Public Service Co.

• Decision Date: 02 March 1942
• Docket Number: 37650
• Parties: Adda F. Bartlett v. Kansas City Public Service Company, a Corporation, Appellant
• Court: Missouri Supreme Court

160 S.W.2d 740

349 Mo. 13

Adda F. Bartlett v. Kansas City Public Service Company, a Corporation, Appellant

No. 37650

Supreme Court of Missouri

March 2, 1942

Appeal from Jackson Circuit Court; Hon. Paul A. Buzard Judge.

Reversed and remanded (with directions).

Charles L. Carr for appellant.

(1) The only ground for new trial which appellant need refute in this brief is the ground specified by the court in the order granting the new trial. Respondent has the burden of supporting the order on any other ground. Sec. 1169, R. S 1939; Yuronis v. Wells, 322 Mo. 1039, 17 S.W.2d 518; Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 678. (2) The court did not err in admitting and permitting the defendant to read in evidence the testimony of Mrs. Spencer and Mrs. Osick, given in plaintiff's husband's case and erred in granting a new trial for such assigned reason. Counsel for plaintiff did not question that the witnesses were not available at plaintiff's trial or that the testimony read was that given in the other trial. There was such identity of issues and identity and common interest of parties in the two cases as to make the testimony of the two witnesses competent at plaintiff's trial. 5 Wigmore on Evidence (3 Ed.), secs. 1386, 1387; Heyworth v. Miller Grain & Elevator Co., 174 Mo. 171; Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84; Harrell v. Quincy, O. & K. C. Rd. Co., 186 S.W. 677; Lampe v. St. Louis Brewing Assn., 204 Mo.App. 373, 221 S.W. 447; State ex rel. Brewing Assn. v. Reynolds, 226 S.W. 579, quashing certiorari in the Lampe case, supra; Minea v. St. Louis Cooperage Co., 179 Mo.App. 705, 162 S.W. 741; Poague v. Kurn, 140 S.W.2d 13, 5 Wigmore on Evidence (3 Ed.), sec. 1388; Parsons v. Parsons, 45 Mo. 265; Adams v. Raitner, 69 Mo. 363; McCracken v. Schuster, 179 S.W. 757; Breeden's Administrator v. Feurt, 70 Mo. 624; Charlesworth v. Tinker, 18 Wis. 633; North Mo. Railroad v. Stephens, 36 Mo. 150; Scarritt Furniture v. Moser & Co., 48 Mo.App. 543; Grant City v. Simmons, 167 Mo.App. 183; Lyon v. Rhode Island Co., 38 R. I. 252, 94 A. 893. (3) The testimony of Mrs. Spencer and Mrs. Osick was merely cumulative. Had its admission been error, the error would have been harmless and insufficient to support the order granting a new trial. Sec. 973, R. S. 1939; Vitale v. Duerbeck, 338 Mo. 556, 92 S.W.2d 691; Lewis v. St. Louis Independent Packing Co., 3 S.W.2d 244; Robinson v. Ross, 47 S.W.2d 122; Shouse v. Dubinsky, 38 S.W.2d 530; Green v. American Ry. Express Co., 34 S.W.2d 1039; Broughton v. Hunter's Bank, 204 S.W. 469; Porterfield v. American Surety Co., 210 S.W. 119; Farrell v. Farmers Mut. Ins. Co., 66 Mo.App. 153; O'Keefe v. United Rys., 124 Mo.App. 617, 101 S.W. 1144. (4) The testimony of defendant's witnesses was not contrary to the physical facts in the case. Bennette v. Hader, 87 S.W.2d 413; Young v. M.-K.-T. Ry. Co., 100 S.W.2d 929; Bloecher v. Duerbeck, 92 S.W.2d 681; Branson v. Abernathy Furniture Co., 130 S.W.2d 562; Whitaker v. Kansas City Rys. Co., 209 S.W. 632; Jacobs v. Kansas City Rys. Co., 217 S.W. 579.

Goodwin Creason and Lester G. Seacat for respondent.

(1) Plaintiff's motion for a new trial was properly granted because the testimony of defendant's witnesses was contrary to the undisputed physical facts and the common experience of men. Kibble v. Quincy, O. & K. C. Ry. Co., 227 S.W. 42, 285 Mo. 603; Miller v. Schaff, 228 S.W. 488, certiorari dismissed, 42 S.Ct. 53, 257 U.S. 651; Sexton v. Metropolitan St. Ry. Co., 149 S.W. 21, 245 Mo. 254; Payne v. Chicago & A. Ry. Co., 38 S.W. 308, 136 Mo. 562. (2) The trial court erred in admitting in evidence, over the objection of plaintiff, the testimony of Mrs. Zada Spencer and of Mrs. Marie Osick, given by them in a suit brought by George Bartlett, in which suit plaintiff was not a party. And because of that error, the trial court properly granted plaintiff a new trial. Willis v. Reed, 190 S.W. 677; Evans v. Sears Roebuck & Co., 129 S.W.2d 53; Haglage v. Monark Gasoline & Oil Co., 298 S.W. 177; Central Bank v. Thayer, 82 S.W. 142; Bates v. Bates, 94 Mo.App. 70, 67 S.W. 932.

OPINION

Hays, J.

This is an action for personal injuries brought by the respondent, Adda F. Bartlett, against the appellant, Kansas City Public Service Company. After a trial in the Circuit Court of Jackson County the jury returned a verdict for the defendant. Plaintiff filed a motion for a new trial which was sustained. The court specifically assigned as the sole ground for his ruling that he had committed error in admitting certain evidence offered by the defendant and objected to by the plaintiff, the nature of which will be stated presently. Our jurisdiction is invoked because the plaintiff's petition prays for judgment in the amount of $ 20,000 and the amount in controversy exceeds $ 7,500. [Johnston v. Ramming, 340 Mo. 311, 100 S.W.2d 466.]

Plaintiff and her husband, George Bartlett, were passengers on a bus operated by defendant along 39th Street in Kansas City, Missouri. The bus proceeded east until it reached the intersection of Tracy Avenue where it drew up alongside the curb and plaintiff and her husband left by the rear door. George Bartlett descended from the bus first. Plaintiff then stepped on to the rear step of the bus and was about to descend to the curb when, as she alleges, the bus suddenly started forward, causing her to lose her balance and throwing her forward into the arms of her husband. She claims to have sustained an injury to her right knee at the time.

Plaintiff offered the evidence of her husband and two other witnesses, in addition to her own testimony, in regard to the sudden forward movement of the bus. Defendant, on the contrary, offered the testimony of its driver and six other passengers to the effect that the bus did not make this sudden forward movement and that in fact it did not move forward at all until after the accident had occurred. Plaintiff's petition charges specific negligence in the sudden forward movement of the bus.

In addition to the testimony of the witnesses mentioned who appeared personally at the trial, the defendant offered and was permitted to read to the jury the stenographic transcript of the testimony of two witnesses, Mrs. Zada Spencer and Mrs. Marcie Osick, given on a former occasion. Their testimony was very similar to that of the other witnesses for the defendant, to-wit: that the bus did not start forward after making its stop at Tracy Avenue at the time of the accident.

The circumstances under which this testimony was originally given are these: Some time before the trial of the present case George Bartlett, the plaintiff's husband, had filed suit against the defendant for loss of services of his wife arising from her injuries allegedly sustained in this same accident. The petition in the said George Bartlett case was offered in evidence but was not received by the court. However, it is of course included in the abstract before us and was before the trial judge at the time he ruled on the admission of the testimony of Mrs. Spencer and Mrs. Osick. Said petition shows that the assignment of negligence made in the George Bartlett case was absolutely identical with the assignment of negligence in the present case and the testimony offered bears solely upon this issue of primary negligence of the defendant. It appears that one of the attorneys who represented George Bartlett in his case also represented Mrs. Bartlett in the present case.

It is conceded by both parties and was conceded at the trial that Mrs. Spencer and Mrs. Osick were permanently domiciled in another state at the time of this trial and were outside of the jurisdiction of our courts. They were therefore unavailable as witnesses within the meaning of that term as used in the rule with respect to the admission of former testimony. [State v. Butler, 247 Mo. 685, 153 S.W. 1042.]

The testimony of the two witnesses here involved was obviously relevant and material to the issues in the present case. If the trial court erred in admitting it it can only be for the reason that it was hearsay. Our consideration must therefore be confined to the question of whether or not the admission of this former testimony was violative of the hearsay rule, and this requires a consideration of the nature of that rule and the reasons for its existence.

The ultimate purpose of any trial upon an issue of fact is the ascertainment of truth -- the accurate determination of the actual facts in the controversy. Procedural rules are not ends in themselves. They are means to the attainment of this ultimate purpose of legal procedure -- the ascertainment of truth. To prevent the tribunal from being misled by false testimony two safeguards to truthfulness have been developed in our common law procedure. One of them is the judicial oath administered to witnesses with the attendant penalties for wilful and deliberate perjury. The other is cross-examination through which the opponent is enabled to expose intentionally false swearing and also to bring to light circumstances bearing upon inaccuracies of the witnesses in observation recollection and narration, and to lay the foundation for impeachment of the witnesses. Hearsay evidence is objectionable because the person who makes the statement offered is not under oath and is not subject to cross-examination. Where a witness has testified to certain facts in a former proceeding, either in open court or by deposition, and a stenographic record of his testimony is offered in a later proceeding in which the same issue of fact is involved, the reception of this evidence is not open to objection on the ground that the witness has made the statement without being sworn for he was under oath when he testified. The sole possible objection is that the...