Cashion v. Wells, 21070.

• Decision Date: 03 March 1931
• Docket Number: No. 21070.,21070.
• Citation: 35 S.W.2d 909
• Court: Missouri Court of Appeals
• Parties: CASHION v. WELLS et al.

35 S.W.2d 909

CASHION v. WELLS et al.

No. 21070.

St. Louis Court of Appeals. Missouri.

March 3, 1931.

Appeal from St. Louis Circuit Court; James F. Green, Judge.

"Not to be officially published."

Action by Robert Cashion against Rolla Wells, receiver of the United Railways Company of St. Louis, and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

F. A. Foster and Strubinger & Strubinger, all of St. Louis, for appellant.

T. E. Francis and Vance J. Higgs, both of St. Louis, for respondents.

BECKER, J.

Plaintiff filed his action to recover damages for personal injuries alleged to have been sustained by him on the 17th of April, 1927, as the result of being thrown from the step of a street car, while he was attempting to board the same, and thrown into the path of and struck by an on-coming automobile. The answer was a general denial.

The trial resulted in a verdict for defendants. From the resulting judgment, plaintiff appeals.

The assignments of error urged here deal solely with the admission of evidence during the progress of the trial. We take them up in the order presented in appellant's brief.

The argument is presented that the trial court erred in refusing to sustain plaintiff's motion for a new trial on the ground that the verdict was the result of the improper and prejudicial conduct of counsel for defendants in unfairly getting before the jury incompetent and prejudicial evidence to the effect that plaintiff had a police record and had been photographed at police headquarters, and in failing and refusing the request of plaintiff to reprimand counsel for defendants therefor.

We set out that portion of the record which is pertinent to this assignment of error.

"Q. I hand you here a photograph which has been marked `Defendant's Exhibit 1' and ask you to state who that is a picture of, if you know? A. Yes.

"Q. Who is it a picture of? A. Of myself.

"Q. Do you know when that was made, what year? A. No, sir.

"Q. Have you any recollection as to what year it was made? A. No.

"Q. Can you tell about what year it was made? A. I really can't.

"Q. Do you know where it was made? A. No.

"Mr. Strubinger: I object to that.

"Mr. Higgs: Your Honor—

"Mr. Strubinger: It does not tend to prove or disprove any issue in the case.

"Mr. Higgs: The purpose for what I want to use it, I think it is perfectly proper for me to establish when it was made, if not where.

"The Court: You can ask when it was made. (To which ruling of the Court plaintiff, by counsel, then and there excepted.)

"Q. You have no recollection of when this was made at all? A. No.

"Q. Have you ever had more than one picture made? A. I have quite a number of pictures made.

"Q. Like this? A. Yes, similar to that.

"Q. All Bertillon pictures, were they? A. No.

"Mr. Strubinger: I object to that as highly improper.

"The Court: I can see no relevancy in that at this time.

"Mr. Higgs: I am going to try to make it relevant. I cannot do it all at once. He said he had a lot made like this.

"The Court: Our Supreme Court had occasion to pass on this question some time ago.

"Mr. Higgs: This is only for the purpose of identification.

"The Court: Well, identify the picture; that is all right.

"Mr. Higgs: But the main purpose why I am trying to find out—because it will be necessary what I hope to use it for to show it was made at a particular time and place—that is why I asked if the other pictures were made at the same place. He said he doesn't remember when it was made. That is the only purpose.

"The Court: I cannot see what relevancy it has at this time. It may be relevant later and the Court will pass upon it then.

"Q. The question I want you to understand, have you had many pictures made like this, of this kind, at different intervals? A. I have had a lot of pictures made.

"Q. Of this type? A. Yes.

"Q. To refresh your memory, I will ask you to state if about July 20, 1924, you had such a picture as this made? A. I don't remember."

In analyzing the court's action we note that it was only after plaintiff had answered "No" to the question as to whether he knew where the photograph exhibited to him had been made that counsel for plaintiff interposed, "I object to that; * * * it does not tend to prove or disprove any issue in the case," and thereupon the court ruled, "You can ask when it was made."

The action of the court in effect sustained the objection which was leveled at the question, "Do you know where it was made?" so that no complaint is available to plaintiff on this score. The witness had already answered the question, and no motion was made to strike out the answer, evidently because the answer was favorable and could not possibly have been harmful to plaintiff. Later on plaintiff stated that he had had a number of photographs made, and that they were similar to the one exhibited to him by counsel for defendants. Counsel for defendants thereupon asked: "All Bertillon photographs, were they?" Plaintiff answered: "No." Here counsel for plaintiff objected "to that as highly improper," and the court again in effect sustained the objection and stated that he could see no relevancy in the question.

It is obvious that in this situation there is nothing here for our review.

So, too, further on in the progress of the trial, when defendants were adducing their evidence, Herman Eilers took the stand and testified that he was a member of the police force, and we quote the following from his redirect examination:

"Q. * * * I will ask you what this is that I hand you, which is marked `Defendant's Exhibit 1'? A. That is a photograph taken up at the—

"Mr. Strubinger: Just a minute—

"The Witness (continuing): Police head-quarters.

"Mr. Strubinger: I ask that counsel be reprimanded for asking that question. The picture has been identified by this plaintiff and it is only asked for the purpose of prejudicing this plaintiff's rights.

"The Court: "It can't prejudice anybody so far, because nothing was said about it. (To which ruling of the Court plaintiff, by his counsel, then and there duly excepted and still continues to except.)

"Mr. Higgs: I just want to ask one question. I think I am within my rights and I am trying to make my case as I understand the law to be. I want to know if he knows when this was made. I have to fix a foundation some way; that's all I want to ask him.

"The Court: If he knows when it was made, that's one thing; asking him where it was made is another thing.

"Q. Do you know when this was made? A. No, sir, I don't."

We note that, upon objection being made that the testimony was incompetent, the court sustained the objection, and, upon request that counsel for defendants...