Carpenter v. Kurn

• Citation: 136 S.W.2d 997,345 Mo. 877
• Decision Date: 21 February 1940
• Docket Number: 36112
• Parties: Mary Carpenter v. James M. Kurn and John G. Lonsdale, Trustees of St. Louis-San Francisco Railway Company, Appellants
• Court: Missouri Supreme Court

136 S.W.2d 997

345 Mo. 877

Mary Carpenter v. James M. Kurn and John G. Lonsdale, Trustees of St. Louis-San Francisco Railway Company, Appellants

No. 36112

Supreme Court of Missouri

February 21, 1940

Appeal from Barry Circuit Court; Hon. Emory E. Smith Judge.

Reversed and remanded.

J W. Jamison, Gene Frost and Mann, Mann & Miller for appellants.

(1) There was no duty on the part of the fireman or engineer on appellants' train to be on the lookout for or discover deceased, Reuban Carpenter, sitting on the track; the deceased's highly negligent conduct continued up to the moment he was struck, he having had the ability to save himself at all times, and appellants' peremptory instruction at the close of plaintiff's case, again offered at the close of all the evidence, should have been sustained. Gwaltney v. K. C. So. Ry. Co., 96 S.W.2d 357; Atchison, T. & S. F. Ry. Co. v. Bratcher, 99 Okla. 77 225 P. 943. ". . . As we understand the Oklahoma decisions, under all of them, if the injured person had the last clear chance to avoid injury and negligently failed to do so, he cannot recover on the last clear chance theory. Varying facts in different cases must of course be considered in determining whether or not the rule applies, as is shown in the numerous cases cited. The determination of the question in the case before us requires a further statement of the facts. Atchison, T. & S. F. Ry. Co. v. Bratcher, 225 P. 941; Atchison, T. & S. F. Ry. Co. v. Phillips, 12 P.2d 908.

Harry G. Waltner, Jr., Sizer & Myres and Franklin E. Reagan for respondent.

(1) Respondent's motion to dismiss this appeal should be sustained. (a) The affidavits set out in appellants' brief, but not found in the record or bill of exceptions, cannot be considered. Passing upon a similar situation, the Springfield Court of Appeals in Barrett v. Stoddard County, 183 S.W. 644, 647, said: "There is set out in the brief filed by appellants what purports to be a certificate of the bank examiner, and the affidavit of a man named 'J. P. Larue, President,' declaring that by unanimous vote of the stockholders the Bank of Essex was dissolved, and this purports to have been filed in the office of the secretary of state. The brief states that it also appears that there was a dissolution by a vote of the stockholders. From what this appears is not disclosed by the record before us as neither the certificate of the bank examiner nor the affidavit appear in the abstract of the record or bill of exceptions. If such an affidavit would conclusively show a dissolution of a corporation, it has no place in this case, because, as above stated, it is not in the record before us." (b) The printing of such affidavits in appellant's brief does not make them a part of the record. In Ammerman v. Linton, 214 S.W. 170, 279 Mo. 439, Division One of this court said, 172: "The judgment in cause No. 6901 was not introduced in evidence by either party. Counsel for appellant have printed it in their brief, but that does not put it in the record." Cases to the same effect: State ex rel. v. Harper, 80 S.W.2d 849, 336 Mo. 717; State ex rel. v. Smith, 80 S.W.2d 858, 336 Mo. 703. (c) The record on appeal in this court cannot be amended or defects supplied by affidavits. Wilson v. Taylor, 25 S.W. 199, 119 Mo. 626. In the above case, page 631, we quote the following from the court's opinion: "We have thus set out the state of the present record with particularity, because the parties differ as to what it discloses. Besides this, affidavits have been filed with a view of showing what instructions were asked, given and refused at the trial, and what occurred when the bill of exceptions was signed by the special judge. That we must dispose of this case on the record before us is a proposition too plain to admit of argument; and the affidavits before us must and will be disregarded. They are no part of the record." Cases to the same effect: Laybourne v. Columbia Natl. Bank, 56 S.W.2d 790, 227 Mo.App. 673; State v. Dudley, 56 Mo.App. 450; Allen v. Aylor, 86 S.W. 905, 111 Mo.App. 257. (d) The record herein showing that the affidavit for appeal was not sworn to is conclusive and binding in this court. Adelsberger v. Sheehy, 59 S.W.2d 644, 332 Mo. 954; Stegner v. M.-K.-T. Ry. Co., 64 S.W.2d 691, 333 Mo. 1182; Pietzuk v. K. C. Rys. Co., 232 S.W. 987. In the latter case, the court said, 991. "The trial court having made no order directing an amendment of the record, this affidavit is unavailing, for it is the settled law that on appeal to this court the bill of exceptions imports verity." (e) The contents of the affidavits printed in appellants' brief are inadmissible as being hearsay, and being based upon an alleged conversation or transaction with a person now deceased. Jackson v. Curtiss-Wright Airplane Co., 68 S.W.2d 715, 334 Mo. 805; State ex rel. v. Hostetter, 105 S.W.2d 928, 340 Mo. 1177; Elsea v. Smith, 273 Mo. 396, 202 S.W. 1071; Farmers & Traders Bank v. Kendrick, 108 S.W.2d 62; Cloves v. Cloves, 239 S.W. 145. In that case, the court said, 147: "The objection to the plaintiff testifying to the matters offered to be testified to by him was properly sustained. Such testimony all related to matters which might be subject to question by the deceased party, if living. It was therefore properly excluded." (f) The contents of the affidavits purport to relate to the delivery of the affidavit to the circuit clerk, now deceased, and as to what transpired at that time, and is therefore inadmissible. Koger v. Black, 220 S.W. 904; In re Skelly's Estate, 223 S.W. 690. (g) A recital in the record of the lower court granting an appeal does not confer jurisdiction on the appellate court in the absence of the required affidavit for appeal. Elliott v. Ward, 251 S.W. 71. (2) Respondent made a submissible case under the humanitarian doctrine of Oklahoma. (a) The engine crew, after discovering plaintiff's peril, failed to use ordinary care to avoid injuring him. Lusk v. Hailey, 75 Okla. 206; Chicago, R. I. & P. Co. v. Owens, 78 Okla. 114; Chicago, R. I. & P. Co. v. Pedigo, 123 Okla. 213; St Louis-S. F. Ry. Co. v. Jones, 78 Okla. 204. (b) Appellants were required to exercise special care and watchfulness at points along its railway where Carpenter was killed, because the tracks were constantly used by pedestrians. M., K. & T. Ry. Co. v. Wolf, 76 Okla. 195. (c) The deceased Carpenter was oblivious to his peril and therefore had no opportunity to save himself. The evidence is undisputed that from the time he was first seen, when the train was more than 2175 feet away he gave no outward signs of life, and, in fact, never moved. This made his "place of imminent peril" a jury question. Pryor v. Payne, 263 S.W. 982. Carpenter did not purposely or wantonly expose himself to danger. He was, therefore, oblivious of any peril. Bybee v. Dunham, 198 S.W. 190. (d) Appellants are estopped to claim the humanitarian doctrine is not in this case because appellants requested Instructions 6, 7, 9 and 10 upon that theory. (3) The conduct of respondent's counsel was neither erroneous nor prejudicial to appellants. As to the deposition. (a) Respondent was entitled to use the deposition of appellants' agent. Henry v. First Natl. Bank of Kansas City, 115 S.W. 121; Dawes v. Williams, 40 S.W.2d 644, 328 Mo. 680; Mahon v. Fletcher's Estate, 245 S.W. 372; Cox v. Reynolds, 18 S.W.2d 575. (b) Appellants saved no exception to the refusal of the trial court to reprimand counsel, and cannot now urge that matter on appeal. Young v. Sinclair Refining Co., 92 S.W.2d 995. (c) The argument of respondent's counsel is not error because respondent would have had a verdict regardless of the argument made. Kinney v. Met. Ry. Co., 169 S.W. 23, 261 Mo. 97. (d) The appellants have sustained no injury by reason of said argument; the verdict herein is not excessive. Crews v. Kansas City Pub. Serv. Co., 111 S.W.2d 54.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

This action was brought by respondent as the widow of Reuben Carpenter, deceased, to recover damages for the alleged wrongful death of the deceased, which occurred on the 25th day of May, 1937, near Henryetta, Oklahoma, the plaintiff alleging that she brought the action for the benefit of herself and the deceased's four minor children. There was a verdict and judgment for plaintiff for $ 18,000. Defendants appealed. Before stating the facts or proceeding to consideration of the case on the merits we will dispose of a motion to dismiss the appeal.

Appellants' abstract of record was filed here August 22, 1939. On July 11, 1939, respondent filed a motion to dismiss the appeal and a "supplemental transcript," certified by the clerk of the circuit court. The ground of the motion is that no sufficient affidavit -- in fact no affidavit -- for appeal was filed in the circuit court, wherefore this court acquired no jurisdiction. Appellants' abstract does not set out the affidavit. In the "short form transcript" certified here by the circuit clerk the circuit court's order granting the appeal is set out, reciting in substance that the defendants filed their affidavit praying an appeal and "same being seen, heard and fully understood is by the court sustained and appeal granted to the Supreme Court of Missouri as prayed for." The supplemental transcript above mentioned shows entries appearing on the court's docket relative to the case. After setting out entries showing various steps in the trial it shows "Affidavit for appeal filed (14) Appeal granted to Supreme Court of Missouri (14)." Included in said supplemental transcript is a copy, certified by the clerk, of the affidavit for appeal. Omitting caption, it reads:

"On this day personally appeared before me, the undersigned Circuit Clerk, within and...