Coffey v. S. S. Kresge Co.

• Citation: 102 S.W.2d 161
• Decision Date: 01 February 1937
• Docket Number: No. 18795.,18795.
• Parties: COFFEY v. S. S. KRESGE CO.
• Court: Missouri Court of Appeals

102 S.W.2d 161

COFFEY v. S. S. KRESGE CO.

No. 18795.

Kansas City Court of Appeals. Missouri.

February 1, 1937.

Rehearing Denied March 1, 1937.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be published in State Reports."

Action by Emma Coffey against the S. S. Kresge Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Henry L. Jost and Roger C. Slaughter, both of Kansas City, for appellant.

Rosenberg & Brenner, and Joseph Koralchik, all of Kansas City, for respondent.

CAMPBELL, Commissioner.

Plaintiff in April, 1935, went into the basement of defendant's store in Kansas City, Mo., for the purpose of purchasing merchandise which defendant was engaged in selling. While plaintiff was examining merchandise in defendant's said store, the defendant's floor porter pushed a truck upon the floor of the basement and caused the truck to strike and injure plaintiff. Thereafter, plaintiff brought this suit to recover for her injuries, obtained a verdict and judgment for $2,500, from which the defendant has appealed.

The grounds of negligence alleged were: (1) Failure to warn plaintiff of the approach of the truck; (2) failure of defendant's employee to "perceive and look where he was pushing said floor truck"; and (3) that defendant's servant negligently pushed the floor truck against plaintiff.

Plaintiff testified that she went into the basement and while examining merchandise which was on display the defendant's floor porter pushed two trucks upon the floor and that one of the trucks struck her on the left foot "just below the ankle bone."

"Q. And as the colored boy passed you did he say anything to you? A. He said, `I am sorry I struck you.'

"Mr. Slaughter: That is objected to and I move to strike it out for the reason that it is hearsay and not part of the res gestæ.

"The Court: Overruled. (To which action and ruling of the court the defendant then and there duly excepted at the time and still excepts.)

"Q. (Mr. Brenner) What did you say to him?

"Mr. Slaughter: That is objected to for the same reasons.

"The Court: Let her answer. (To which action and ruling of the court the defendant then and there duly excepted at the time and still excepts.)

"Mr. Brenner: Just tell the jury.

"A. I said, `Why did you say you were sorry then?'

"Q. No, at that time. At the time you were struck he said to you that he was sorry he struck you? A. Yes, sir.

"Q. What did you say to him? A. I said I was sorry because he hurt me.

"Q. What did you then do? A. I leaned over the counter while I had so much pain and Mrs. Krigbaum came up and talked to me then. * * *

"Q. Then what happened? Mrs. Krigbaum came up. Then what happened? A. She had the clerks call the floorwalker.

"Q. And what did the floorwalker do? A. He called the colored boy and asked him about striking me and he denied it. He said —

"Mr. Slaughter: (Interrupting.) I object to that. This is some little time later and it is objected to as hearsay. Certainly not a part of the res gestae. (Exception for court's refusal to rule on objection.)

"Q. (Mr. Brenner) Who was present at the time this conversation took place? A. Mrs. Krigbaum.

"Q. And who else? A. The colored boy and the floorman.

"Q. And yourself? A. Yes, sir.

"Q. And this conversation was had among the four of you, is that correct? A. Yes.

"Q. And how many minutes after you were struck did this conversation take place? A. Just soon afterwards.

"Q. Proceed and tell what that conversation was.

"Mr. Slaughter: I renew my objection. It is hearsay.

"The Court: Let her answer. (To which action and ruling of the court the defendant then and there duly excepted at the time and still excepts.)

"Q. (Mr. Brenner) Just proceed and tell what the conversation was? A. Mrs. Krigbaum went to call the manager and he finally came and —

"Mr. Slaughter: (Interrupting.) Preliminary question.

"Q. The porter you said went off in an easterly direction? A. I mean south.

"Q. This conversation that you are relating now occurred after he came back, is that right, is that correct? A. The floor man called him and just then —

"Q. (Interrupting.) And this conversation occurred after that? A. He denied everything, yes.

"Q. (Mr. Brenner) What then did you do? A. Mrs. Krigbaum assisted me up the steps and to the car line and I went home."

Concerning the accident, Mrs. Krigbaum testified as follows:

"Q. Just tell the jury what happened there. A. I had just come around that counter and was standing there in front of the truck myself.

"Q. What happened? A. Well, he (porter) hit her and then he told her he hit her.

"Mr. Slaughter: I object to that and move to strike it. It is an attempt to get in hearsay testimony and not part of the res gestae.

"The Court: Overruled. (To which action and ruling of the court the defendant then and there duly excepted at the time and still excepts.)

"Q. (Mr. Brenner) At the time this colored boy hit Miss Coffey what did he say? A. He said, `If I hit you I am sorry', and went on.

"Mr. Slaughter: We renew our objection.

"The Court: Overruled. (To which action and ruling of the court the defendant then and there duly excepted at the time and still excepts.)

"Q. (Mr. Brenner) What did you then do? A. I asked the girl at the counter where there was a floorman.

"Q. And what happened then? A. And she called him, called the floorman.

"Q. And what then happened? A. I told him that his colored man had hit Miss Coffey and her leg was injured."

The porter on defendant's behalf testified that the truck did not strike the plaintiff; that he saw plaintiff, passed by her, and that neither spoke to the other; that in a few minutes (he later said 10 or 15 minutes) the defendant's floorman came to him and said, "This lady says that you struck her"; that in reply he said in effect that he did not strike plaintiff.

The defendant says that the statements of the porter, especially those made after the floorman was called, were hearsay and not a part of the res gestae.

The defendant did not object to the question above quoted in which plaintiff was asked whether or not the porter, at the time of the accident, said anything to her until after the question was answered. The objection was too late. Kaley v. Huntley et al. (Mo.App.) 88 S.W.(2d) 200, 203. The motion to strike was upon the ground that the answer was hearsay and not a part of the res gestae, and not for the reason that the answer was not responsive to the question.

The next question called for the statement made by the plaintiff to the porter at the very time of the accident. The plaintiff, after defendant's objection was overruled, answered: "I said `why did you say you were sorry then?'" The question was a proper one. The answer was not responsive to the question, but as no request was made to strike, we cannot convict the trial court of error in permitting the answer to remain in the record. However, we do not put our ruling on that ground alone. The statement made by the porter and the statement made by the plaintiff at the very instant of the accident were a part of the res gestae and admissible even though the statement made by plaintiff was self-serving. Bennette v. Hader, 337 Mo. 977, 87 S.W.(2d) 413, 100 A.L.R. 1190; Sculley v. Rolwing (Mo.App.) 88 S.W.(2d) 394; Scism v. Alexander (Mo. App.) 93 S.W.(2d) 36.

The plaintiff testified the floorman asked the porter "about striking me and he denied it."

The defendant did not object to the question which elicited the testimony until after the answer was given, nor was motion made to strike the answer.

Following questions in which plaintiff was asked to state the conversation, questions which in so far as stating the conversations are concerned were not answered, one of defendant's counsel propounded three questions, the last of which was answered. "He (porter) denied everything, yes." The answer was not responsive to the question. The defendant, however, did not request that the answer be stricken. In the absence of such request, the court could properly assume that the defendant did not consider the answer to be improper.

The evidence showing that the porter, after the floorman was called, denied that he struck the plaintiff, was in harmony with the porter's evidence at the trial. Proof that the porter in a "few minutes" after the alleged accident said in substance that there was no accident, did not hurt either party unless it was the plaintiff.

The defendant is not in position to complain of the evidence of Mrs. Krigbaum, for the reason that it chose not to object to any question propounded to her until the question was answered.

Were we to say that timely and proper objections were made, then we would in legal result say that the defendant could remain silent until a question was answered, and if the answer were favorable to it say nothing, and if unfavorable have the benefit of an objection, the same as though the objection had been seasonably made.

The rule is well established that an untimely objection is no objection.

The defendant says that the objection made by it during the opening statement of plaintiff's counsel was sufficient to raise the question of the admissibility of the conversations referred to by plaintiff and Mrs. Krigbaum, and that it was unnecessary to report the objection.

Concerning the opening statement the record shows the following:

"The colored boy gave no warning of any kind, didn't say a word before he pushed these trucks against where the plaintiff was standing. The pain was so intense she fell over the counter, like this (illustrating) and held herself and the colored boy said to her, `lady, I am sorry I struck you,' and then pushed these trucks along the aisle, and about that same time a former tenant of Miss Coffey's came up to her and said she had seen the accident, and she said, `Are you hurt?' and Miss Coffey said she was, and the floorman was called and the floorman was told about the...