Burns v. Polar Wave Ice & Fuel Co.

• Citation: 187 S.W. 145
• Decision Date: 06 June 1916
• Docket Number: No. 14365.,14365.
• Parties: BURNS v. POLAR WAVE ICE & FUEL CO.
• Court: Court of Appeal of Missouri (US)

187 S.W. 145

BURNS v. POLAR WAVE ICE & FUEL CO.

No. 14365.

St. Louis Court of Appeals. Missouri.

June 6, 1916.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

"Not to be officially published."

Action by Samuel C. Burns against the Polar Wave Ice & Fuel Company. From a judgment for plaintiff, defendant appeals. Judgment affirmed.

Jones, Hocker, Sullivan & Angert and Vincent L. Boisaubin, all of St. Louis, for appellant. Brownrigg & Mason, of St. Louis, for respondent.

REYNOLDS, P. J.

This is an action by plaintiff, respondent here, against the defendant to recover damages alleged to have been sustained by plaintiff to his person and property, plaintiff at the time driving a team attached to a wagon in which he was seated, by being run into by a wagon of defendant, in charge of one of its employés, it being charged in the petition that the act was a negligent act on the part of defendant, through its employé. The accident is charged to have occurred February 12th, 1913, in the city of St. Louis. Violation of a city ordinance — sections 2 and 5 of ordinance No. 25104, is charged, those sections, 1327 and 1330, providing that a vehicle, except when passing a vehicle ahead, shall keep as near the right-hand curb as possible, and that in turning to the right into another street a vehicle shall turn the corner as near the right-hand curb as possible. Judgment is demanded for $15,000.

When the cause was called for trial before the court and a jury, defendant objected to the introduction of any evidence because, as it was alleged, the petition did not state facts sufficient to constitute a cause of action. This objection was overruled.

Plaintiff, as the first witness on his own behalf, having been sworn and having given his name, counsel for defendant objected to him testifying in the cause, for the reason that defendant is a corporation and can only act by and through its agents and servants, and defendant asked to be then allowed to offer evidence to prove that one Johnson, who was the driver of the wagon belonging to defendant at the time of the accident, was now dead; that this being so, then under section 6354, Revised Statutes 1909, plaintiff is an incompetent witness. The court allowed defendant to introduce its evidence as requested and that being done, it was admitted that Johnson was the employé of the defendant "alleged to have been in charge of the wagon and who ran into plaintiff's wagon," and that he, Johnson, has since died. Thereupon the court overruled the objection of defendant's counsel, counsel excepting.

Plaintiff was thereupon permitted to testify and did testify as to the circumstances connected with the accident; that he was a married man, with two children; was engaged in teaming, owning two teams, and drove one of his teams on the day of the accident; that while driving south on Compton avenue, and along the west side of that street, he saw a Polar Wave three-horse team coming down that street and that the driver was whipping with one hand, pulling his lines with the other, and "cussing"; that the street was 40 feet wide and that he (plaintiff) was a hundred feet from this wagon when he first noticed it; had known the driver of that wagon, Johnson, for three or four years and that he (Johnson) was then driving a wagon belonging to the defendant company; that he (plaintiff) had stopped in his wagon against the west curb of the street when the front end of the defendant's wagon, driven by Johnson, struck the front end of the body of his (plaintiff's) wagon and the bodies of the two wagons rubbed for about 14 or 16 inches; that he (plaintiff) was thrown into the air, knocked unconscious, and when he regained consciousness he was 10 or 20 feet from where he had been in his wagon, the wagon some 30 or 40 feet north from where it had been and a lamp post broken by his (plaintiff's) wagon having been shoved against it. He further testified to the damage to his wagon and to his person, as to which latter it is sufficient to say that there was evidence tending to show that it was of a serious character, so serious as to prevent plaintiff doing very hard work, his abdomen being injured, and that he was still suffering from these injuries; whether permanent or not the physicians for plaintiff declined to say. Plaintiff also introduced testimony as to his expenditures, value of his time lost and of the extent of his suffering.

Other witnesses to the accident gave testimony practically corroborating plaintiff's version of the happening of the accident.

There was a verdict for plaintiff in the sum of $7500; judgment followed, from which, filing its motion for a new trial as well as in arrest, defendant has duly appealed.

The first assignment of error made by counsel for appellant is to the action of the court in allowing plaintiff, over the objection of defendant, to testify, it being claimed that under section 6354, Revised Statutes 1909, he was an incompetent witness.

The decision of our court in Leavea v. Southern Ry. Co., 171 Mo. App. 24, 153 S. W. 500, and that of the Supreme Court in the same case, not yet officially reported but to be found in 181 S. W. 7, are cited in support of this contention. In those decisions it is held that the testimony of plaintiff as to the accident should not have been admitted. It having been admitted that Johnson was the driver of the team at the time of the accident, was an employé of defendant in charge of the team at that time and on that occasion, and that he is dead, plaintiff, on proper objection, should not have been allowed to testify to the acts of Johnson which it is claimed caused the accident and rendered defendant liable. So it was held in the Leavea Case, the objection there made being to plaintiff testifying to what took place between himself and the deceased employé of defendant. But in the case at bar the objection was not limited to that testimony, but challenged the competency of plaintiff to testify at all; that is, was founded on the claim that the agent of defendant, who represented it in the matter or stood for defendant, being dead, plaintiff was an incompetent witness in the case.

It is held by our Supreme Court in First National Bank v. Payne, 111 Mo. 291, loc. cit. 298, 20 S. W. 41, 33 Am. St. Rep. 520, Mann v. Balfour, 187 Mo. 290, loc. cit. 304, 86 S. W. 103, Weiermueller v. Scullin, 203 Mo. 466, loc. cit. 473, 101 S. W. 1088, and Eaton v. Cates et al., not yet officially reported, but see 175 S. W. 950, loc. cit. 953, and in Kille v. Gooch et al., not yet officially reported, but see 184 S. W. 1158, and by our court in Diggs v. Henson, 181 Mo. App. 34, loc. cit. 46, 163 S. W. 565, that a party to the action is only disqualified under section 6354 from testifying to transactions which took place between himself and the deceased agent and representative of defendant in the transaction, but is not disqualified generally as a witness from testifying in the case. Thus plaintiff here was a competent witness to testify as to his injuries and the damage to himself and his outfit and his expenditures, but he cannot testify as to the acts of the driver of defendant's wagon.

It follows that the learned trial court committed no error in overruling the objection here interposed, that being a general objection to plaintiff testifying at all in the case.

It is not out of place to say that outside of the testimony by plaintiff there was ample testimony of the fact of the collision and of the acts of the driver of defendant's team.

The second assignment of error is that respondent's instruction No. 1 is erroneous in that it directs a verdict and does not cover all the facts in the case. We do not think this instruction is subject to this criticism. Specifically, and in the body of the instruction, it refers to other instructions in the case for facts necessary to a recovery.

The third assignment is levelled at the fourth instruction given at the instance of plaintiff. It tells the jury that if they believe from the evidence that defendant's team and wagon, just prior to the collision, was turning to the right into Compton avenue and out of Adams street, then it was the duty of defendant's servant in charge of the wagon turning into Compton avenue as aforesaid, to exercise such care as a reasonably prudent man would have used under the circumstances to turn the corner as near the right-hand curb as it was possible so to turn by the exercise of ordinary care; and if the jury further believe from the evidence that defendant's servant, turning into Compton avenue from Adams street, did not turn the corner as near the right-hand curb as, by the exercise of ordinary care, it was possible, as aforesaid but turned past the center of the street, and that it was possible for the defendant's servant, by the exercise of ordinary care, to turn the corner nearer the right-hand curb than the center of the street; and if the jury further believe from the evidence that plaintiff's injuries and damages as elsewhere specified in these instructions were the direct result of the failure of defendant's servant, as aforesaid, to keep as near the...