O'Connor v. Sioux Falls Motor Co.
| Decision Date | 10 November 1930 |
| Docket Number | 6664 |
| Citation | 57 S.D. 397,232 N.W. 904 |
| Parties | ANNA O'CONNOR, Respondent, v. SIOUX FALLS MOTOR COMPANY, Appellant. |
| Court | South Dakota Supreme Court |
SIOUX FALLS MOTOR COMPANY, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Herbert B. Rudolph, Judge #6664—Affirmed Kirby, Kirby & Kirby, Sioux Falls, SD Attorneys for Appellant. M. G. Luddy, Sioux Falls, SD Attorney for Respondent. Opinion filed Nov 10, 1930
A car owned by appellant, Sioux Falls Motor Company, and driven by Emil Paulson, a mechanic employed by that company, ran into and overturned a car driven by Tom Winkler wherein respondent O'Connor was riding as a gratuitious passenger. Respondent alleged the negligence of appellant’s employee, acting within the scope of his employment, and asked damages therefor. Appellant made a general denial, and alleged that, if respondent suffered any injury, it was caused by her own contributory negligence. At the trial, in an effort to prove that Paulson was acting within the scope of his employment, respondent attempted to introduce in evidence Exhibit C. It was not admitted in evidence, but appellant assigns as prejudicial misconduct the efforts of respondent’s counsel to have it admitted. Exhibit C was produced in court in response to a subpoena duces tecum issued to one Scallan, an officer of Western Surety Company. It was a report of the accident, purporting to be signed by one Evans, who at the time of the accident was president of the defendant company. It was made on a printed form of that surety company and stated thereon a file number and a policy number. Therein was the statement: “Winkler’s car was struck on rear fender by Paulson, did not see Winkler in time to stop.” Also the question: “What was auto being used for at the time of accident?” was followed by the hand-written answer: “Going after a prospect buyer.” On the back of the report, under the heading “Statement of driver,” was the following handwriting:
Inasmuch as defendant’s witnesses testified positively that Paulson had no authority to use the car, and that his employment with the company was that of a repair mechanic only, the zeal with which plaintiff’s counsel, Luddy, sought the admission of the exhibit and defendant’s counsel, Thomas H. Kirby, its exclusion, is understandable. Although defendant’s counsel won the point, plaintiff’s counsel won the verdict of $1,000, a verdict not excessive under the evidence. Appellant assigns as prejudicial misconduct the zealous efforts of respondent’s counsel to secure the admission of Exhibit C. Appellant could not complain of any lack of either zeal or skill on the part of its own counsel. Its answer was a general denial, without mention of scope of employment. Its counsel made no opening statement, although the plaintiff’s counsel moved that he be compelled to do so. Although the subpoena duces tecum to Scallan required him to give evidence on the part of the plaintiff, when he was placed upon the witness stand and plaintiff’s counsel demanded of him the production of the papers, he replied that he had given them, the evening before, to defendant’s counsel. Defendant’s counsel, himself an officer of the surety company, then produced them.
At the time of the trial, Evans, by whom--according to Exhibit C--that report was made, was in Texas. Crowley, defendant’s vice president, and Southern, its sales manager, testifying in defendant’s main case that Paulson had no authority to use the car, denied on cross-examination that Exhibit C was in Evans’ handwriting and all other knowledge of its origin. Paulson, the driver of defendant’s car and the purported signer of the statement on the back of Exhibit C, was available to defendant as a witness while proving its defense. Defendant, however, did not put him on the stand and rested just before the noon recess. Before the jury returned after the noon recess, a subpoena for Paulson, issued at the request of plaintiff’s counsel, was handed to the sheriff, who could not find Paulson before the conclusion of the rebuttal testimony of four witnesses. Crowley testified he saw Paulson just before the noon recess.
When defendant had rested after introducing evidence in denial of Paulson’s authority to use the car and disclaiming all knowledge of Exhibit C, plaintiff sought in rebuttal to discover how it came to be in the surety company’s files, bearing # Ho. 4250, policy No. 80L209. He called the president of the surety company as a witness. He, as well as Scallan, who produced Exhibit C, denied any knowledge as to who prepared it and how it came to be in the surety company’s files. He testified that, if any one connected with his company would know the source from which the instrument was received, it would be a Mr. Sequin. Mr. Sequin was then somewhere between Sioux Falls and Minneapolis. He also testified that he doubted whether any of the other thirty persons employed by his company would be able to tell from what source Exhibit C came. The president of the surety company was told by plaintiff’s counsel that Exhibit C was produced by Mr. Scallan, an officer of his company, and by him identified as part of the records and files in his possession, and was asked whether or not Exhibit C was a part of the records and files of the office of the company of which he was president. He replied: “It is not identified in any way, and I do not know.” He was then asked: “Are you unable to answer the question even if you assume the matters stated in my question to be true?” He answered: “Assuming that, I would say yes.” Thereupon, after testifying that he did not know from what source the instrument was received, he was asked: “The instrument, Exhibit C, regardless of the source from which it was received, was accepted and filed in your office, as an official report, was it not?” To which the witness answered: “Assuming the same as before, I will say yes.”
At the conclusion of the trial, the authorship of Exhibit C was no less a mystery than at its beginning. Three witnesses connected with the motor company, including its manager, and three witnesses connected with the surety company, including its president, denied any knowledge of its origin; yet the expense of repair of the Winkler car was charged to the surety company, and Exhibit C bore a policy and a file number and was produced by an officer of the surety company under subpoena.
Although the foregoing is an incomplete narration of the trial happenings which appellant assigns as prejudicial misconduct on the part of respondent’s counsel, it presents the matter sufficiently for the purpose of this opinion. When respondent’s counsel was examining the jurors, he inquired whether any of them were employed by or held stock in the Western Surety Company. Objection thereto having been sustained, respondent’s counsel did not thereafter...
To continue reading
Request your trial