Dietz v. Southern Pac. Ry. Co.

• Decision Date: 06 May 1930
• Citation: 28 S.W.2d 395,225 Mo.App. 39
• Parties: FRANK J. DIETZ, APPELLANT, v. SOUTHERN PACIFIC RAILWAY COMPANY, A CORPORATION, alias SOUTHERN PACIFIC COMPANY; UNION PACIFIC RAILWAY COMPANY, A CORPORATION, alias UNION PACIFIC SYSTEM, AND WABASH RAILWAY COMPANY, A CORPORATION, RESPONDENTS
• Court: Missouri Court of Appeals

28 S.W.2d 395

225 Mo.App. 39

FRANK J. DIETZ, APPELLANT, v. SOUTHERN PACIFIC RAILWAY COMPANY, A CORPORATION, alias SOUTHERN PACIFIC COMPANY; UNION PACIFIC RAILWAY COMPANY, A CORPORATION, alias UNION PACIFIC SYSTEM, AND WABASH RAILWAY COMPANY, A CORPORATION, RESPONDENTS

Court of Appeals of Missouri, St. Louis

May 6, 1930

Appeal from the Circuit Court of the City of St. Louis.--Hon. Victor H. Falkenhainer, Judge.

AFFIRMED AS TO UNION PACIFIC RAILWAY COMPANY.

REVERSED AND REMANDED AS TO THE OTHER DEFENDANTS.

AFFIRMED AS TO UNION PACIFIC RAILWAY COMPANY. REVERSED AND REMANDED AS TO THE OTHER DEFENDANTS.

Smith & Pearcy for appellant.

(1) The evidence in the case shows that there was a thorough checking of plaintiff's baggage on a route specifically designated on the baggage check over each of the defendant railroads. The evidence shows that the plaintiff, pursuant to ticket traveled over this route. In such a joint undertaking the Wabash and Union Pacific are jointly liable with the Southern Pacific, and the Court erred in directing a nonsuit as to the Wabash and Union Pacific. Steamship Co. v. M. & O. Rd Co., 144 Mo.App. 43; Crockett v. St. Louis R. R Co., 147 Mo.App. 347; Fruit & Nut Co. v. Railroad, 163 Mo.App. 426. The rule of necessity would make the Wabash liable. Certainly it is not the law that a resident of St. Louis who is coming home from California has to go back to California to institute a suit for the loss of his baggage. (2) It was error to admit evidence of the thirty-nine claims alleged to have been made by plaintiff in matters in no way connected with the matter in suit, and many of which were twenty years old. See authorities, points 3, 4, 5, 6. (3) In the trial of an issue joined, other acts and collateral matters are not proper evidence and tend to mislead and direct the jury's attention to other than the real issues in the case, and are highly prejudicial. Wimp v. Early, 104 Mo.App. 85; Gutzweiler v. Lackmann, 39 Mo. 91; Cantwell v. Johnson, 236 Mo. 575; Smith v. Bank, 147 Mo.App. 461; Tracy v. McKinney, 82 Mo.App. 506; Hamlin v. Abell, 120 Mo. 188, 205-206; Van Ravenswaay v. Covenant Mutual Life, 89 Mo.App. 73, 77; Broughton v. Hunters Bank, 264 S.W. 469; Turner v. King, 224 S.W. 91; Wolf v. U.S., 290 F. 738; Fish v. U.S., 215 F. 544; Ellis v. Railway, 234 Mo. 657; Funsch v. Stevenson, 223 S.W. 593; Aguileno v. N.Y., etc., Ry. Co., 21 R. I. 263; Collins v. Dorchester, 6 Cush. 396; Anderson v. Taft, 20 R. I. 362; Baltimore & Susquehanna v. Woodruff, 4 Md. 243, 254; Hood v. Railroad, 95 Ia. 331; Ft. Worth Belt Ry. Co. v. Cabell, 161 S.W. 1083, 1087. (4) Evidence that a person has done an act at a particular time is not admissible to prove that he has done a similar act at another time. Stranahan v. Genesee Fire Ins. Co., 218 N.W. 688; Larson v. Larsen, 236 P. 979, 72 Cal.App. 169; Rakestraw v. Sebree Bank, 225 S.W. 506, 189 Ky. 668; Breslow v. Manchester, Robertson, Allison, Limited, 191 N.Y.S. 885; Queen Insurance Co. v. Van Giesen, 136 Ga. 741; Richmond v. Hog Creek Oil Co. (Tex.), 229 S.W. 563; Kelly v. Home Mutual Fire Ins. Co., 180 N.Y.S. 657; National Surety Co. v. Slover, 269 P. 354, 132 Okla. 104; Fish v. U.S., 215 F. 544; 22 C. J. 744. (5) In order for other matters to be proper evidence they must relate to a common purpose and be connected in some way with the matter in question. National Surety Co. v. Slover, 269 P. 354; Hood v. Chicago, Northwestern Ry. Co., 95 Ia. 331; Kelly v. Home Mutual Fire Ins. Co., 180 N.Y.S. 657, 190 Appellate Div. 764; Richmond v. Hog Creek Oil Co. (Tex.), 229 S.W. 563; Queen Ins. Co. v. Van Giesen, 136 Ga. 741, 742. (6) Another requirement is that the matter inquired about must not be remote in time. In this case many of the matters inquired about were fifteen to twenty years old, and it was error to have admitted them on this ground alone. Stranahan v. Genesee Fire Ins. Co., 218 N.W. 688 (held two years too remote; Kelly v. Fire Ins. Co., 180 N.Y.S. 657 (one or more years held too remote); Larson v. Larsen, 236 P. 979. (7) The evidence of other claims being error, it is presumptively prejudicial to plaintiff. Langston v. R. R. Co., 147 Mo. 457. (8) Juries are prone to determine on their notions of what is fair, in view of all the facts before them, without strict regard to the legal rights of the parties. It is important, therefore, to keep extraneous matters out of the evidence as far as possible. Wimp v. Early, 104 Mo.App. 85. (9) The innuendo relating to cancellation of insurance policies by insurance companies and the direct question asked of plaintiff if insurance companies do not refuse to carry plaintiff, and had not refused for some time, was highly prejudicial, and for this alone the case should be reversed. (10) The plaintiff has not had a fair trial. The admission of the mass of irrelevant matter on cross-examination of plaintiff and the improper questions by the counsel for Southern Pacific were highly prejudicial and the case should be reversed for a new trial.

See authorities cited under points Nos. 3, 4, 5, 6, and 7.

Carter Jones & Turney for respondent Southern Pacific Company.

(1) The right of cross-examination is an inherent right of trial by jury, especially the right of a defendant to cross-examine the plaintiff himself. (2) Defendant is entitled to cross-examine to test the credibility and to shake the credibility of a witness and particularly so when the plaintiff is the witness. Muller v. St. Louis Hospital Assn., 5 Mo.App. 390, 401, 73 Mo. 242; State v. Long, 201 Mo. 664; State v. Davis, 284 Mo. 695; State v. Blocker, 278 S.W. 1014; Taylor v. Fire Insurance Co., 285 S.W. 1912; United States v. Trenton Potteries Co., 273 U.S. 392. (3) Defendant was entitled to show, to shake the credibility of the plaintiff, that he had been a doctor claim settler or adjuster, settling claims of injured employees for the employers and insurance companies, to show that he was a chronic claimant, and had made claims against accident companies for personal injuries to nearly every part of his anatomy, which claims were, many of them, exaggerated in amount, and settled for little or nothing, and that he was also experienced in filing claims for loss of baggage and for loss of personal articles against railroad companies and against Pullman companies; that he solemnly set forth in his petition that the value of his losses in the case in question was $ 509, and yet was obliged to admit on cross-examination that all he could add up was $ 409, and that his testimony on direct examination that the articles of wearing apparel were new were shown on cross-examination to be worn, used wearing apparel. (4) Defendant was entitled, as a matter of right of cross-examination, to have an answer to the question propounded to plaintiff on cross-examination as to whether or not he still carried insurance, and certainly plaintiff was not hurt when the court sustained the objection to the question. The question, of course, was answerable by a variety of answers, such as that he still had insurance, that he did not have insurance, that insurance had been refused to him, and possible other answers. (5) When a witness is cross-examined he may be asked any questions which tend to test his accuracy, veracity or credibility, or to shake his credit by injuring his character. This matter is largely within the discretion of the trial court as to the extent to which such questions shall be allowed. The court did not err in not discharging the jury. Authorities supra; and State v. Long, 201 Mo. 664; Bush v. L. & N. R. Co., 17 S.W.2d 337.

T. M. Lillard and Abbott, Fauntleroy, Cullen & Edwards for respondent Union Pacific Railway Company, a corporation, alias Union Pacific System.

(1) There is absolutely no evidence in this case that said defendant "Union Pacific Railway Company, a corporation alias Union Pacific System," ever knew or had anything to do with plaintiff or any of his baggage. (2) In Vickery v. Railroad, 93 Mo.App. 1, it is held that a defendant designated as "railroad" is not the same, nor can it be used to mean the same as "railroad company." Much less, can the statement of the witness that he traveled from Ogden on the "Union Pacific Railroad" to Kansas City, be taken to mean, and connect the defendant sued herein, with the "Union Pacific Railway Company, a corporation, alias Union Pacific System." There is no evidence in this case that the defendant, which is sued, ever had the pleasure of Dietz's acquaintance, or ever had the privilege of being connected with his suit case, or with Dietz's wife, "Martha." (3) The defendants, being sued for negligence, the burden is on the plaintiff to show what particular defendant was guilty of the negligence charged, which resulted in the loss of his baggage, and the rule is that, there being no evidence, as to what particular defendant lost the baggage, the last carrier in this case, the Wabash Railway Company, is presumed to be the one, who was guilty of the negligent acts which resulted in the loss. (4) The rule obtains that when goods are received by an initial carrier in good condition and are shown to have been delivered by it to a connecting carrier and thereafter found to be damaged or lost, the presumption is that such damage or loss occurred while they were in the possession of the last carrier, and in the absence of evidence affixing the loss or damage because of the fault of the initial carrier, no recovery may be had against it therefor. (See Flynn v. St. Louis & S. F. R. Co., 43 Mo.App. 424, 439; Crouch v. The Louisville, etc., Ry. Co., 42 Mo.App. 248; Dean v. Toledo, St. L., etc., R. Co., 148 Mo.App. 428, 128 S.W. 10.) Bockserman v. Railroad, 169 Mo.App. 172; Pipe Co. v. R. R. Co., 137 Mo.App. 146; Pipe Co. v. R. R. Co., ...