Bennett v. Myres

• Decision Date: 26 October 1929
• Docket Number: No. 4619.,4619.
• Citation: 21 S.W.2d 943
• Parties: BENNETT v. MYRES.
• Court: Missouri Court of Appeals

21 S.W.2d 943

BENNETT v. MYRES.

No. 4619.

Springfield Court of Appeals. Missouri.

October 26, 1929.

Rehearing Denied December 11, 1929.

Appeal from Circuit Court, Barry County; Charles L. Henson, Judge.

Action by Fannie Bennett against H. H. Myres. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

D. H. Kemp, of Springfield, for appellant.

Gene Frost and J. S. Davis, both of Cassville, for respondent.

SMITH, J.

Plaintiff brought this suit against the defendant to recover the sum of $6,000 actual damages, and $4,000 punitive damages for the death of her minor son, Marion Bennett, who died at her home in Barry county, Mo., on April 14, 1927.

The substance of the petition was that plaintiff's son, on the 13th day of April, 1927, was in the employ of defendant, baling hay, on defendant's farm in said county, and that defendant wantonly, carelessly, and by culpable negligence, placed, and allowed and caused to be placed, an earthen jug filled with a deadly poison at or near where the son of plaintiff and others were at work, and wantonly, carelessly, and by culpable negligence failed to lable said jug as containing poison, and failed to warn the son of plaintiff that said jug contained poison, and that said son, believing that said jug contained drinking water, and not knowing it contained poison, then and there took some of said poison into his mouth, and he was thereby poisoned, and as a direct result of said poisoning died on the 14th day of April, 1927.

The answer of defendant was a specific denial of each and every allegation in said petition, and pleaded contributory negligence, in that plaintiff's son failed to look and observe the condition of the jug from which it is alleged he drank, and in not asking and making inquiry of his employer as to what the jug contained, and for not asking for the jug that did contain drinking water that was close to the work, and from which other employees had been drinking.

The defendant, at the beginning of the taking of testimony, objected to the introduction of testimony because the petition did not state facts sufficient to constitute a cause of action, and insists upon that point here in his first assignment of error in which he states that there was no allegation that Marion Bennett drank or swallowed the poison, but only the allegation that he "did then and there take some of said poison into his mouth and was thereby poisoned * * * and as a direct result he died." We think no error was committed in this ruling of the trial court.

The defendant offered no testimony of any kind, but at the close of the plaintiff's testimony requested the court to instruct the jury that under the law and the evidence in the case the verdict must be for the defendant. The court failed to so instruct the jury, and the defendant requested other instructions upon the issues in the case which were refused by the court. The court gave instructions requested by the plaintiff, to the giving of which the defendant objected and excepted.

We have examined the testimony thoroughly in this case, but we do not think it is necessary to set the testimony out in full because of error made by the trial court in the admission of certain testimony which we will mention.

The testimony shows that Marion Bennett left home about 7 or 8 o'clock on the morning of his injury, and was at work for Jim Chaney in baling hay or straw at the residence of the defendant; that between 10 and 11 o'clock he, in a sickened condition, was brought home by three men. The evidence showed that shortly after he commenced work in the morning he became sick and was vomiting, and asked for some drinking water, and threw one of his hands over his shoulder, and, pointing in the general direction of the jug that was setting by the fence, and said, "I got some of that over there and it had an awful taste." About the time Marion said this the defendant came out to where he was, and Jim Chaney asked him what the jug had in it, and the defendant said tree poisoning. Shortly thereafter the boy was taken to his mother's home, and Dr. Foster was called to treat him.

Dr. Foster testified that he was called to see Marion Bennett, and arrived at his mother's home about 11 o'clock on the first morning of his sickness. He testified that, in attempting to ascertain the cause of his trouble, "I asked what he had taken." The question was objected to by the defendant as being incompetent and purely hearsay, and was overruled, whereupon the attorney for defendant asked this question:

"Q. How long was this after, where was it this occurred, where was the examination held? A. It was in Mrs. Bennett's home between 10 and 11 o'clock, Mr. Myres was not there."

"By Mr. Kemp: What I am objecting to is his reply to that."

This objection was overruled, and the answer was, "The boy said he drunk out of a jug over at Mr. Myres. He said he got sick immediately after he drank it and they brought him home, and I pronounced it arsenic poison." The defendant's attorney moved to strike out the answer, which was overruled.

The defendant's second assignment of error is that the court erred in admitting incompetent evidence on behalf of the...