Collins v. Leahy

• Decision Date: 08 March 1939
• Docket Number: 36011
• Citation: 125 S.W.2d 874,344 Mo. 250
• Parties: Verlyn Collins, an Infant, by Ethelrine Gregg Collins, Her Next Friend, v. John S. Leahy, Appellant
• Court: Missouri Supreme Court

125 S.W.2d 874

344 Mo. 250

Verlyn Collins, an Infant, by Ethelrine Gregg Collins, Her Next Friend, v. John S. Leahy, Appellant

No. 36011

Supreme Court of Missouri

March 8, 1939

Appeal from Circuit Court of City of St. Louis; Hon. Joseph J Ward, Judge.

Reversed and remanded.

Wayne Ely, William O'Herin and Leahy, Walther, Hecker & Ely for appellant.

(1) The court erred in overruling defendant's motion to declare a mistrial and to discharge the jury, because of misconduct of plaintiff's counsel throughout the trial. Throughout the trial of the case plaintiff's counsel was guilty of misconduct, and of making highly improper and prejudicial statements and remarks in the presence of the jury, all of which were calculated to arouse prejudice in the minds of the jury against the defendant, and in favor of the plaintiff. Said remarks were entirely outside the issues, were unwarranted by the evidence, and were without just excuse and the court's refusal to discharge the jury because of said prejudicial remarks was reversible error. (a) During the voir dire examination of the jury panel plaintiff's counsel told the panel that this case had been tried before, but "we are not permitted to state anything with respect to that." Rytersky v. O'Brine, 70 S.W.2d 538; Evans v. Trenton, 112 Mo. 390. (b) During the testimony of Crawford Leahy, plaintiff's counsel said that defendant was "making a liar out of his own witness," meaning Ernest Compton, who was not defendant's witness. (c) During the closing argument to the jury, plaintiff's counsel said that the driver of the automobile which struck plaintiff was not paying any attention to people on the streets and "that is one of the reasons we have so many accidents of this character." Taylor v. Superior Oxy-Acetylene, 73 S.W.2d 186; Collins v. Leahy, 102 S.W.2d 801. (2) The court erred in admitting incompetent, irrelevant, immaterial and prejudicial testimony on behalf of plaintiff, and over the objection and exception of defendant and in overruling defendant's motions to strike same. (a) Upon a mere showing that Edward Gragg had called at an address where Ernest Compton had lived two or three years ago, and had not found him, the court permitted plaintiff to introduce and read to the jury excerpts from a transcript of testimony given by Ernest Compton at a trial of this case in December, 1932. (b) There was no showing that Ernest Compton was dead; insane; rendered incompetent by law to testify; nor that he had removed from the city. Neither was there any showing that he had been subpoenaed as a witness by plaintiff. (c) Before plaintiff's counsel read excerpts from the said transcript of Ernest Compton's said testimony, defendant showed that Ernest Compton was within the jurisdiction of the court; that he was under subpoena; gave his residence address, and the address where he worked, and offered to produce him in court, so that plaintiff might use him as a witness. Secs. 1714, 1780, 1804, R. S. 1929; Heinbach v. Heinbach, 262 Mo. 69; O'Brien v. Transit Co., 212 Mo. 59; Francis v. Willits, 30 S.W.2d 203; State v. Miller, 263 Mo. 326. (d) Plaintiff was permitted to introduce into evidence and read to the jury Ordinance 36614, Section 2416 of the Revised Code of the City of St. Louis, when there was no competent evidence to justify the introduction of said ordinance. Iman v. Freund Bread Co., 58 S.W.2d 477. (e) Ernestine Steele, a school teacher, was permitted to testify that in her opinion plaintiff was abnormal. (f) Ernestine Steele was permitted to testify, and to express her opinion, of plaintiff's mentality and ability to remember, when said opinion was based upon intelligence tests given to plaintiff and graded by another teacher, to-wit: Lucille Williams, who was not a witness and who did not testify in the case. The court refused to strike said testimony. (g) Ernestine Steele was permitted to testify as to what the aforesaid tests showed. Stockwell v. Union Pac. Ry. Co., 182 S.W. 829; Mourer v. Wabash Ry. Co., 280 S.W. 1050; City Water Co. v. Hunter, 319 Mo. 1240; Traber v. Hicks, 131 Mo. 180; Holloway v. Kansas City, 184 Mo. 19; Magill v. Boatmen's Bank, 288 Mo. 489; Curry v. Fed. Life Ins. Co., 221 Mo.App. 626; Murphy v. St. Joseph Ry., L. & P. Co., 221 Mo.App. 670; Hutchinson v. Mo. Pac. Ry., 288 S.W. 91. (3) The court erred in refusing the instructions in the nature of a demurrer offered and requested by defendant at the close of plaintiff's case, and at the close of the whole case. The judgment should be reversed outright. (a) Plaintiff's own evidence disproves that the chauffeur was on defendant's business, and plaintiff is bound thereby. Lolordo v. Lacy, 88 S.W.2d 355; Schroer v. Brooks, 204 Mo.App. 567; Behen v. St. Louis Transit Co., 186 Mo. 441. (b) Where the evidence upon plaintiff's part has been fully presented and no case is made, the judgment will be reversed outright. Miller v. Wilson, 288 S.W. 997; Hairs v. Hairs, 300 S.W. 540; Kersey v. Conrad, 30 S.W.2d 167. (c) Plaintiff was guilty of contributory negligence as a matter of law and the record shows the humanitarian doctrine does not apply. Under such circumstances the judgment should be reversed outright. Evans v. Ill. Cen. Ry. Co., 233 S.W. 397; Costello v. United Rys. Co., 213 S.W. 179; Sullivan v. Union Elec. L. & P. Co., 56 S.W.2d 100.

Everett Hullverson and Robert L. Aronson for respondent.

(1) It was not error to refuse to discharge the jury because of the brief comment that nothing could be told about the first trial. Schully v. Rolwing, 115 S.W.2d 96; Shields v. Kansas City Rys. Co., 264 S.W. 890. (2) The transcript of the prior testimony of witness Compton was properly read in evidence, after plaintiff showed that she had sought unsuccessfully to locate the witness, and had learned that he had removed, so that he was not available to her as a witness. It was for the trial court to determine whether plaintiff's showing of these facts was sufficient and demonstrated due diligence. The ruling, made in the exercise of the trial court's judgment, was not an abuse of discretion. Secs. 1714, 1780, 1804, R. S. 1929; Drake v. Kansas City Pub. Serv. Co., 63 S.W.2d 75; Welp v. Bogy, 218 Mo.App. 414, 227 S.W. 600; State v. Riddle, 179 Mo. 287, 78 S.W. 606; Sculley v. Rolwing, 88 S.W.2d 399; McFarland v. Assn., 134 Mo. 204, 27 S.W. 436; Mayne v. Kansas City Rys. Co., 287 Mo. 245, 229 S.W. 386; Bender v. Bender, 193 S.W. 294. (3) The city ordinance was properly admitted in evidence, though not pleaded, because it was not offered as a basis of a ground of liability, but merely as evidence, bearing chiefly on the question of alleged contributory negligence; and this is res judicata. Collins v. Leahy, 102 S.W.2d 801; Bailey v. Kansas City, 189 Mo. 503, 87 S.W. 1182; Ostermeier v. Implement Co., 255 Mo. 128, 164 S.W. 218; Lackey v. United Rys. Co., 288 Mo. 120, 231 S.W. 956. (4) The ruling of the trial court as to the competency of an expert witness will not be disturbed, being a matter within the sound discretion of the trial court, unless abused. Owens v. Kansas City, C. C. & S. J. Ry. Co., 225 S.W. 234; Robison v. Chicago G.W. Ry. Co., 66 S.W.2d 180; Fields v. Luck, 335 Mo. 765, 74 S.W.2d 35; Burnam v. Chicago G.W. Ry. Co., 100 S.W.2d 858.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

This is an action for damages for personal injuries which plaintiff sustained when struck by an automobile driven by Ernest L. Compton, colored chauffeur for defendant Leahy. The plaintiff, Verlyn Collins, a colored girl, was ten years of age at the time. The action was brought by her mother, as next friend. The accident occurred about two o'clock P. M., October 31, 1930, on Finney Avenue in the City of St. Louis, near 3704 Finney, where plaintiff resided with her mother. The action was commenced in the Circuit Court of the City of St. Louis, in January, 1931, and tried in December, 1932, when plaintiff had a verdict for $ 12,500. As a condition for the overruling of defendant's motion for a new trial, the trial court required a remittitur of $ 4000. Thereupon the plaintiff remitted the sum of $ 5000 and defendant appealed from the judgment for $ 7500. The St. Louis Court of Appeals reversed the judgment and remanded the cause for a new trial. [Collins v. Leahy (Mo. App.), 102 S.W.2d 801.] The cause was again tried in the Circuit Court of the City of St. Louis (in October, 1937) and plaintiff had verdict and judgment for $ 9000, from which judgment defendant brings this appeal.

Plaintiff's petition alleges that on the date aforesaid "she was a pedestrian in and upon the traveled portion of Finney Avenue . . . when . . . she was struck, knocked down and run over by an automobile owned and being operated by defendant, by and through his agent and servant, as the direct result of the negligence and carelessness of the defendant, his agent and servant" as therein set out. The petition contains eight specific charges of primary negligence and a charge of negligence under the humanitarian rule. All the charges of primary negligence were abandoned and the case was submitted solely under the humanitarian rule. The answer was a general denial and a plea of contributory negligence.

Defendant as appellant here, assigns error, as follows; Assignments, 1, 2, 3, relate to alleged "misconduct of plaintiff's counsel throughout the trial" and his alleged improper and prejudicial remarks and statements in the argument of the case; (4) permitting plaintiff's counsel to introduce in evidence, as a part of plaintiff's case, excerpts from the transcript of the testimony of Ernest Compton (defendant's chauffeur) in the first trial of the case, also the alleged admission of incompetent and prejudicial testimony on the part of plaintiff; (5)...