Booker v. Kansas City Gas Co.

• Decision Date: 15 October 1936
• Docket Number: No. 18645.,18645.
• Citation: 96 S.W.2d 919
• Parties: DR. L.W. BOOKER, RESPONDENT, v. KANSAS CITY GAS COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

96 S.W.2d 919

DR. L.W. BOOKER, RESPONDENT, v. KANSAS CITY GAS COMPANY, APPELLANT.

No. 18645.

Kansas City Court of Appeals. Missouri.

October 15, 1936.

Appeal from Circuit Court of Jackson County. — Hon. Brown Harris, Judge.

REVERSED AND REMANDED.

Preble Hall, Horace Guffin, Cleary M. Detling and Harold E. Marshall for respondent.

Charles H. Mayer and Charles M. Miller for appellant.

SPERRY, C.

On March 15, 1932, plaintiff filed his first amended petition against Fremont Land and Improvement Company and appellant herein as codefendants. The allegations in the first count were that he was injured by reason of an explosion of natural gas at premises occupied by him and that said explosion was the result of negligence of Fremont Land and Improvement Company, owner of the property, and of appellant, owner of the gas pipes leading into the house; and therein he prayed for damages in the sum of $5000 on account of said personal injuries. In the second count he prayed for damages to personal property, growing out of said explosion, in the sum of $3215.60.

In due time appellant filed separate answer in the nature of a general denial and set up the specific defense that respondent had been paid the sum of $1000 by the Fremont Land and Improvement Company; that said Fremont Land and Improvement Company had been released on account of all matters mentioned in the first amended petition of respondent; and that respondent had thus been fully compensated on account of all matters mentioned in said first amended petition.

Thereafter respondent dismissed the suit against Fremont Land and Improvement Company, and to appellant's answer filed a reply in the nature of a general denial. Thereafter, in the September term of court, 1934, trial was had to a jury and verdict in the following form duly returned:

"We, the jury, find the issue in favor of the plaintiff on both counts of the petition and against the defendant and we assess his damages upon the first count at the sum of $300.00 and we further assess his damages on the second count at the sum of $200.00. Being a total of $500.00 in addition to the $1000.00 paid by the Fremont Land and Improvement Company."

Judgment was duly entered thereon and appellant in proper time prosecuted this appeal.

It would be burdensome and unnecessary to set out the facts in full herein since only two points are raised on this appeal. The first is that error was committed in not permitting appellant to read to the jury parts of the testimony of one Anna Walker, a witness on behalf of respondent, from a transcript of her evidence given at a previous trial wherein her husband was plaintiff and appellant herein was defendant, in a suit for damages growing out of the same gas explosion which was the cause of the injuries alleged in this case, for the purpose of impeaching her in this trial. Anna Walker testified in the instant case that she was office girl and maid in respondent's home and lived there at the time of the explosion; that she smelled gas in the quarters of respondent on more than one occasion prior to the explosion; that she reported the detection of the odor of gas to a Mr. Altman, the tenant from whom respondent subleased his premises; that she first smelled gas there two or three years before the explosion, and the odor was prevalent practically all the time for two years prior thereto; that she complained to Altman and respondent many times regarding same; that on the day before the explosion the odor was more noticeable than ever before; that she called respondent and told him, also called Altman who suggested that she report the matter to the gas company, appellant herein. She further testified on direct examination as follows:

"Q. (Mr. Detling) State whether or not you called the Gas Company by telephone. A. Yes, I called them by telephone.

"Q. State how you obtained the telephone number of the Gas Company to call them? A. I asked Information for the number....

"A. I called the Gas Company and I got Information to give me the number. Then I called them." ...

On cross-examination, she testified as follows:

"Q. (Mr. Miller) Now you say in calling the Gas Company up you called for Information, what number did you dial to get Information on the telephone? A. Four one one.

"Q. Four one one? A. Four one one.

"Q. Four Hundred and eleven. You dialed to get Information from the telephone office? A. The numerals are four one one.

"Q. That is four hundred and eleven. A. No, it is not that — I guess it is four hundred and eleven — I guess that is what you would call it, but that isn't the way you dial it on the telephone.

"Q. Yes. Well, is the number four hundred eleven that you dialed to get Information? A. Four one one would be four thousand eleven. This was four hundred eleven.

"Q. Four one one wouldn't be four thousand eleven. A. I know that is four one one.

"Q. That is the number you dialed to get Information at the telephone office, four one one? A. Four one one.

"Q. Any exchange on it? A. No.

"Q. You just picked up the telephone and dialed four one one and that gave you Information at the telephone office, did it? A. Yes, it did."

Appellant further cross-examined as follows:

"Q. Now, as a matter of fact, you heretofore testified that you looked the Gas Company's number up in the telephone book? A. I don't remember that.

"Q. What? A. I don't remember saying anything like that.

"Q. I will ask you if on the trial of your husband's case, page 31 of the transcript, if I didn't ask you this — if Mr. Delting didn't ask you this question: `Q. How did you call them? A. I called them by telephone. Q. Telephone? A. Yes. Q. How did you get the telephone number? A. I looked in the book and got it.' Did you testify that way in your husband's case? A. I don't remember whether I testified that way or not.

"Q. If you did that wasn't the fact, was it? A. Well, I got Information and got the number."

Throughout several pages of cross-examination of this witness, appellant asked her if certain questions were asked her and certain answers made by her, reading said questions and answers from what purported to be a transcript of her evidence given at the trial of her husband's case. It is claimed, and with merit, that there was a material variance in her evidence as given at this trial and in her evidence as given in the trial of her husband's case and that the transcript of the latter would have so shown. To many of such questions she answered that she did not remember the question and answer as read; to others she answered that she did not make such answers; some she remembered and admitted. Some of the evidence in question had to do with the notice alleged to have been given appellant, and therefore material as bearing upon appellant's knowledge of the conditions and its negligence in failing to remedy defects.

Thereafter the transcript was duly identified and offered in evidence and appellant then offered to read certain portions thereof, which were claimed to be contradictory of the witness' testimony given in the instant case, and upon which appellant had theretofore cross-examined her from the transcript. Objection was made as follows:

"Mr. Detling (interrupting): We object to him reading the testimony of Mrs. Walker. She was here and he was given an opportunity to cross-examine her.

"The Court: Sustained."

Counsel then read into the record, outside the hearing of the jury, certain questions and answers from the transcript which he offered to read to the jury and which tended to contradict the witness' testimony given at the trial on material matters. The court refused to permit the reading of it to the jury on the grounds that counsel had read from the transcript in cross-examining the witness, without objection, and that to permit the reading at this time would be repetition. Exceptions were duly saved.

The correct rule for cross-examining a witness upon an alleged variance between his testimony given at the trial and that given in a deposition taken prior thereto is for the cross-examiner to have the witness identify the deposition and his signature thereto and ask him if, when his deposition was taken, the following question was asked him, reading the question from the deposition, and if the witness did not make the following answer, reading the answer shown to have been made. [Peppers v. St. Louis-San Francisco Ry Co., 295 S.W., l.c. 762; Wilson v. Marland, 7 S.W. (2d) 442, l.c. 445, Kansas City Court of Appeals case.]

If the witness admits that said question was asked and said answer was given, that would probably end the matter; for in that event the variance would have been shown. In any event, the deposition would have been proved by the admitted signature of the witness.

But in this case witness was being cross-examined as to testimony alleged to have been given at a different trial, not as to a deposition. No deposition had been offered to her for examination or identification. She was being cross-examined from...