Bates v. Brown Shoe Co., 34948.

• Decision Date: 03 May 1938
• Docket Number: No. 34948.,34948.
• Court: Missouri Supreme Court
• Parties: MABEL BATES v. BROWN SHOE COMPANY, a Corporation, Appellant.

116 S.W.2d 31 MABEL BATES
v.
BROWN SHOE COMPANY, a Corporation, Appellant. No. 34948. Supreme Court of Missouri. Division Two, May 3, 1938.^*

Appeal from Randolph Circuit Court. — Hon. A.R. Hammett, Judge.

REVERSED.

Hunter & Chamier, T.R. McGinnis and Moser, Marsalek & Dearing for appellant.

(1) The evidence is insufficient to prove that defendant's trucks or either of them struck or came in contact with Bates or his horse. To reach such a conclusion, upon this record, requires the illegal piling of inference upon inference; the arbitrary selection of one alleged cause, unsupported by evidence, and the rejection of cogent inferences, supported by the evidence, showing that Bates' injury and death were due to causes for which the defendant is in no degree responsible, and further requires the rejection of the sworn testimony of the witnesses Crumpler and Dees, who were put upon the stand by the plaintiff, and whose testimony that they passed Bates at a safe distance, without contact with him, is the only evidence in the record on said point. Warner v. St. Louis & M. Railroad Co., 178 Mo. 125, 77 S.W. 67; Papamichael v. Wells, 33 S.W. (2d) 1058; State ex rel. Mo. Pub. Util. Co. v. Cox, 298 Mo. 427, 250 S.W. 551; Yarnell v. K.C., F.S. & M. Ry. Co., 113 Mo. 570, 21 S.W. 1; Hamilton v. St. Louis-S.F. Ry. Co., 318 Mo. 123, 300 S.W. 787; Bibb v. Grady, 231 S.W. 1020; Swearingen v. Wabash Ry. Co., 221 Mo. 644, 120 S.W. 773; State ex rel. City of Macon v. Trimble, 12 S.W. (2d) 727. (2) Under the well-settled rule, the plaintiff's attempt to make a case resting upon inferences fails because of the proof, by witnesses she placed on the stand, of facts directly contrary to the inferences the plaintiff seeks to draw. Rodan v. St. L. Transit Co., 207 Mo. 392, 105 S.W. 1061; Rashall v. St. L., I.M. & S. Ry. Co., 249 Mo. 522, 155 S.W. 426; George v. Mo. Pac. Ry. Co., 213 Mo. App. 668, 251 S.W. 729; Raw v. Maddox, 93 S.W. (2d) 282; Polkowski v. St. L. Pub. Serv. Co., 229 Mo. App. 24, 68 S.W. (2d) 884; Manchester Bank v. Harrington, 199 S.W. 242; Stines v. Dillman, 4 S.W. (2d) 477; Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 333, 77 L. Ed. 819. (3) The testimony to the effect that one of defendant's drivers said to the other, "I know I missed him and got by and you must have hit him," and that the driver addressed failed to reply, was improperly admitted by the court and was not competent evidence to prove the fact of a collision between the defendant's trucks and the horse or rider. This court en banc has held that "admissions as to mere matters of opinion are not competent as evidence of a fact." The rule to this effect is well settled. Baker v. Keet-Rountree D.G. Co., 318 Mo. 987, 2 S.W. (2d) 733; Tuggle v. St. L., K.C. & N. Railroad Co., 62 Mo. 425; Crockett v. Morrison, 11 Mo. 3; Wright v. Quattrochi, 330 Mo. 173, 49 S.W. (2d) 7; Tappe v. Pohlmann, 79 S.W. (2d) 488; Inzerillo v. C., B. & Q. Railroad Co., 225 Mo. App. 1220, 35 S.W. (2d) 44; Red Arrow Freight Lines v. Gravis, 84 S.W. (2d) 540; Lanham v. Wright, 142 So. 5; Kuhlen v. Chicago Athletic Assn., 185 Ill. App. 579; Aschenbach v. Keene, 46 Misc. 600, 92 N.Y. Supp. 764; Pulver v. Union Inv. Co., 279 Fed. 705; 22 C.J., p. 299, sec. 326. Said evidence was no part of the res gestae. The alleged statement was a conclusion or opinion and also a self-serving statement by the speaker, tending to exculpate himself from blame. As such it was not spontaneous, as is required under the res gestae rule. State ex rel. Vesper Buick Auto Co. v. Daues, 323 Mo. 388, 19 S.W. (2d) 700; Atkinson v. Amer. School of Osteopathy, 240 Mo. 355, 144 S.W. 816; Redmon v. Met. St. Ry. Co., 185 Mo. 1, 84 S.W. 26; Leahey v. Cass Av. & F.G. Ry. Co., 97 Mo. 165, 10 S.W. 58; Barker v. St. L., I.M. & S. Ry. Co., 126 Mo. 143, 28 S.W. 866; Ruschenberg v. Southern Elec. Ry. Co., 161 Mo. 70, 61 S.W. 626; Koenig v. Union Depot Railroad Co., 173 Mo. 698, 73 S.W. 637; Frye v. St. L., I.M. & S. Ry. Co., 200 Mo. 377, 405-6, 98 S.W. 566. (4) At the close of all the evidence plaintiff abandoned all her allegations of negligence save her allegation based on the humanitarian theory. To sustain a recovery under that theory it would be necessary to assume that at some point the horse and rider got into a position of peril from an oncoming vehicle; that said vehicle was one of the defendant's trucks; that the horse and rider were in such position of peril far enough ahead of the vehicle so that the driver could have averted the collision; that the driver saw or could have seen them in said position in time to have prevented the collision; that the truck struck the horse and rider and that they were thereby thrown to the center of the road in the position they were found. There is no basis whatever in the evidence for this series of assumptions, and the repeated decisions of this court condemn verdicts based upon such an unwarranted and speculative course of reasoning. Miller v. Wilson, 288 S.W. 997; Lee v. Jones, 181 Mo. 291, 79 S.W. 927; Winter v. Van Blarcom, 258 Mo. 418, 167 S.W. 498; Hamilton v. K.C. So. Ry. Co., 250 Mo. 714, 157 S.W. 622; Whitesides v. C., B. & Q. Railroad Co., 186 Mo. App. 621, 172 S.W. 467; Newell v. Dickinson, 207 Mo. App. 369, 233 S.W. 72; Wilson v. Washington Flour Mill Co., 245 S.W. 205.

Hulen & Walden for respondent.

(1) The evidence was sufficient to prove that one or more of defendant's trucks struck Bates and his horse, and that Bates's injuries and death were due to causes for which the defendant is responsible, and this conclusion can be reached on the record without violating the rule of basing one inference on another. (a) In reviewing the overruling of defendant's demurrers to the evidence, after a verdict for plaintiff, the appellate court will take plaintiff's favorable evidence as true, give plaintiff the benefit of every reasonable inference from all the evidence, and disregard contradictory evidence. Moller-Vandenbloom Lbr. Co. v. Bonderau, 85 S.W. (2d) 147; State ex rel. St. Charles v. Haid, 28 S.W. (2d) 97, 325 Mo. 107; Knight v. Wabash Ry. Co., 85 S.W. (2d) 392. (b) As many inferences as facts establish, either by direct or circumstantial evidence, may be drawn, as those facts will justify, so long as one inference is not based on another. Beaber v. Kurn, 91 S.W. (2d) 70; Kelly v. Kansas City B. & L. Assn., 229 Mo. App. 686, 81 S.W. (2d) 440; Am. Veterinary Lab. v. Glidden Co., 59 S.W. (2d) 60; State ex rel. St. Charles v. Haid, 325 Mo. 107, 28 S.W. (2d) 97; Martin v. St. L.-S.F. Ry. Co., 329 Mo. 729, 46 S.W. (2d) 149. (c) All or part of plaintiff's case may be based on circumstantial evidence, so long as one inference is not based on another. Boggess v. K.C. Rys. Co., 207 Mo. App. 1, 229 S.W. 404; Freeman v. K.C. Pub. Serv. Co., 30 S.W. (2d) 176; Settle v. Railroad Co., 127 Mo. 336, 30 S.W. 125. (2) The fact that the drivers of defendant's trucks testified for plaintiff, and later, while testifying for defendant...