Burnam v. Chicago Great Western R. Co.

• Decision Date: 14 December 1936
• Docket Number: 33512
• Parties: C. A. Burnam and Flossie Burnam v. Chicago Great Western Railroad Company, E. E. Cadwell and Logan Saner, Appellants
• Court: Missouri Supreme Court

100 S.W.2d 858

340 Mo. 25

C. A. Burnam and Flossie Burnam v. Chicago Great Western Railroad Company, E. E. Cadwell and Logan Saner, Appellants

No. 33512

Supreme Court of Missouri

December 14, 1936

Appeal from Buchanan Circuit Court; Hon. Sam Wilcox, Judge.

Reversed and remanded.

Brown Douglas & Brown for appellants.

(1) Plaintiffs produced as a witness Jack Leonard Burnam, the injured boy involved in this case. At the time he was injured he was five years of age; at the time the case was tried he was eight years old; at the time his own case was tried he was six years old, and at that time his own counsel, Mr Shultz, stated he was not competent to testify. (a) It is our contention that the evidence shows he was wholly incompetent to testify in the present case, first, because the rule was being enforced which required that witnesses be excluded from the courtroom, and he had violated that rule; Dyer v Morris, 4 Mo. 214; Keith v. Wilson, 6 Mo. 441; O'Bryan v. Allen, 95 Mo. 68, 8 S.W. 225; Brown v. McDaniel, 140 Mo.App. 522, 120 S.W. 642; Sturdivant Bank v. Wright, 184 Mo.App. 164, 168 S.W. 355, and second, because he was wholly incompetent, knowing neither what an oath meant nor being competent to testify about the accident. 5 Jones Commentaries on Evidence, p. 3954; People v. Delaney, 199 P. 896; Rogers v. Commonwealth, 111 S.E. 231; State v. Todd, 82 N.W. 322; State v. Jackson, 318 Mo. 1149, 2 S.W.2d 758; State v. Herring, 268 Mo. 514, 188 S.W. 169; Adelsberger v. Sheehy, 59 S.W.2d 644. (2) Exhibit J found at pages 304 to 307 of the abstract, was part of the transcript or record in the case of Jack Leonard Burnam v. Chicago Great Western Railroad Company, tried two years previously. It concerned directly the qualifications of Jack Leonard Burnam as a witness and showed that at that time he was held to be incompetent to testify. It was offered as evidence in the present case by the defendants, but was refused. Such ruling by the trial court was erroneous for three reasons: (a) This was evidence of prior statements made by Jack Leonard Burnam, or his agent acting for him and within the scope of his authority, directly contrary to statements made in the trial of the instant case, and therefore, was competent for the purpose of impeaching Jack Leonard Burnam. 2 Jones Commentaries on Evidence, pp. 1741, 1762; 22 C. J. 393; St. Charles Savs. Bank v. Denker, 275 Mo. 607, 205 S.W. 211. (b) The prior ruling was a judgment in rem, determining the mental qualifications of Jack Leonard Burnam at that time. It was a final judgment and as to his qualifications at that time was conclusive. 4 Jones Commentaries on Evidence, pp. 3456, 3457; 34 C. J. 938. (c) Exhibit J was and is evidence of the mental qualifications of Jack Leonard Burnam, and for that reason was competent evidence. (3) Plaintiffs placed upon the stand as their own witnesses three of the defendant railroad company's employees. One was a claim agent and two were the codefendants. The three had testified in the trial of this case before. The testimony in this case was no different than it had been previously. There was no evidence of antagonism; there was no hostility; and plaintiffs were not surprised by any of the testimony. Despite all this, they were allowed to cross-examine all three of these witnesses, over the objections and exceptions of the defendants, at great length. Such cross-examination was highly prejudicial and detrimental to the defendants, and was grossly erroneous. 70 C. J. 615; Roberts v. K. C. Rys. Co., 204 Mo.App. 586, 228 S.W. 202; Semper v. American Press, 217 Mo.App. 55, 273 S.W. 186; Vernon v. Rife, 294 S.W. 747. (4) Demurrers were offered at the close of plaintiffs' case and again at the close of the entire case by the three defendants. They were refused. Inasmuch as plaintiffs' case was not aided by any of defendants' testimony, the same argument is applicable to both sets of demurrers. They should have been sustained for three reasons: (a) The testimony of Jack Burnam having been improper and incompetent, and the case resting solely on that, no case was made. Authorities under Point (1) supra. (b) There was no substantial evidence upon which to base a verdict. There was at best but a scintilla of evidence, and verdicts may not be based upon such evidence. Scrivener v. American Car & Foundry Co., 330 Mo. 408, 50 S.W.2d 1006. (c) Under the pleadings and evidence in the case it was obligatory upon the plaintiffs to establish that Jackie was at a point where he had a right to be; that he was at a point where a prescriptive right had been gained by what is termed "user." The evidence not only showed that he was not at a point where the railroad company had any right to anticipate or expect him to be, but it also showed that he was at a place where he could not possibly gain a right to be; that to discover him at the place where he was would require far more than the use of ordinary care on the part of the defendants, and therefore, no case was made. Dalton v. Ry. Co., 276 Mo. 663, 208 S.W. 831; Stergon v. Ry. Co., 286 S.W. 720; Privitt v. Ry. Co., 300 S.W. 726; Trigg v. Water, Light & Transit Co., 215 Mo. 521, 114 S.W. 972; Ayers v. Railroad Co., 190 Mo. 228, 88 S.W. 608; Israel v. Wab. Railroad Co., 218 S.W. 917; Rushenberg v. Ry. Co., 109 Mo. 112, 19 S.W. 218. (5) Certain competent, relevant and material testimony offered by defendants was refused by the court. (a) The witness, J. H. Hulse, on cross-examination was asked certain questions about matters which had been gone into on direct examination. This proffered testimony was erroneously refused. Exhibit H concerning this same testimony was then offered, but was kept out of the case. 70 C. J. 622; State v. Myers, 221 Mo. 598, 121 S.W. 135. (b) Defendants' Exhibit I, consisting of two pages, which were a part of the records of the Welfare Board concerning the family of Harold Mignery and how Harold happened to be placed in the Home for Little Wanderers, was offered by the defendants. This offer was erroneously refused by the trial court. Galli v. Wells, 209 Mo.App. 460, 239 S.W. 894. (6) The court erred in giving, over the objections and exceptions of the defendants, plaintiffs' Instruction 1. This instruction will be found in full at pages 358 to 360, inclusive, of the abstract. It was improper for a number of reasons. (a) The instruction makes an issue of the use of the alley. That was not actually an issue in the case, and the instruction, therefore, broadens the issues. Allen v. Railroad Co., 294 S.W. 80; State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722. (b) The defendants had no control whatsoever over the use of the alley. The instruction was, therefore, erroneous in permitting the jury to find the consent of the railroad company for such use of the alley by children. (c) The instruction assumes a controverted fact, and was, therefore, erroneous for that reason. Barr v. Nafziger Baking Co., 328 Mo. 423, 31 S.W.2d 559; Schimmelpfenning v. Wells, 24 S.W.2d 154. (d) The instruction was so misleading and confusing that it was impossible to tell what it meant, and it was, therefore, erroneous for that reason. Freeman v. Berberich, 322 Mo. 831, 60 S.W.2d 393. (e) The instruction gave to the jury a right to base a finding on the theory that the boy, Jack, was under any one of the six standing cars. It having been stipulated that he was under one of the three north cars, if any, the instruction, therefore, allowed a recovery on a state of facts not in issue, and was erroneous. Allen v. Railroad Co., 294 S.W. 80.

Shultz & Owen for respondents.

(1) It is urged by appellants in their brief under this division that the court committed error in permitting Jack Leonard Burnam to testify; that he was incompetent for two reasons first, that he violated the court rule that required witnesses to be excluded from the courtroom, second, because he was incompetent in that he did not know the meaning of an oath and was not competent to testify about the accident. As to the first point, appellant made proper objections which were overruled by the court and exceptions were saved. There was, however, no ruling on the second point and no exceptions saved. The above was the only ruling of the court in response to counsel's request for a ruling and obviously that ruling only went to the first point in the objection. Therefore, there is nothing before this court for review except the first point to-wit: the violation of the rule as to exclusion of the witness. The failure of the court to rule on Objection Two and its explanation gives appellants' no right to review. If counsel desired a record on that objection for review he should have asked for a ruling on that point, and if the court had then refused to rule he should have, in the record, objected and excepted to the court's refusal or he should have objected and excepted to the court's ruling because it did not cover Point Two. Bate v. Harvey, 195 S.W. 573; Bank v. Glass Co., 169 Mo.App. 382; State v. Wana, 245 Mo. 563; Wilkerson v. Ry. Co., 68 S.W.2d 305; Gann v. Ry. Co., 6 S.W.2d 46, 319 Mo. 214; Bank v. Hutton, 224 Mo. 49. The record further shows that after the witness had testified three motions were made to strike out his testimony. The first motion was made at the close of witness's testimony. The ground stated for that motion was that witness had been in the courtroom and heard part of the testimony. The other two motions assigned no reason but merely moved to strike all of the testimony of witness. Such motions serve no purpose in the record. Lilly v. Ry. Co., 209 S.W. 973; Schroeder v. Wells, 277 S.W. 580; Michaelis v. Harvey, 195 S.W. 520; Coughlin v. Haeusseer, 50 Mo. 129; Williams v. Williams, 259 Mo. 250; Rockenstine v. Rogers, 31 S.W.2d 801, 326 Mo. 468. (2)...