Gebhardt v. United Rys. Co. of St. Louis
| Decision Date | 02 March 1920 |
| Docket Number | 20777 |
| Citation | 220 S.W. 677 |
| Parties | GEBHARDT v. UNITED RYS. CO. OF ST. LOUIS |
| Court | Missouri Supreme Court |
Rehearing Denied April 10, 1920.
Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.
Action by Christian Gebhardt against the United Railways Company of St. Louis. Verdict for defendant. From an order granting plaintiff a new trial, the defendant appeals. Order reversed with directions to reinstate judgment for defendant.
Order reversed, with directions to reinstate judgment for defendant.
Charles W. Bates, T. E. Francis, and Chauncey H. Clarke, all of St Louis, for appellant.
Wm. L Bohnenkamp, of St. Louis (James T. Roberts, of St. Louis, of counsel) for respondent.
SMALL, C., RAGLAND, C., concurs. BROWN, C., not sitting. All the Judges concur.
SMALL, C. I.
Appeal from the circuit court of the city of St. Louis.
Suit for $ 15,000 for personal injuries. The jury found for defendant. The court granted a new trial to plaintiff on the ground that the court erred in admitting testimony on behalf of defendant, from which order defendant appealed. The testimony, so improperly admitted as contended for by respondent's learned counsel, was that of the witness Charles Fensky, who was the original attorney for plaintiff, and one Grant Gillespie who testified, in effect, that plaintiff told them in each other's presence that she was not on the car, as stated in her petition, and consequently was not injured by the defendant; and that the court also erred in admitting the testimony of several witnesses to the effect that Louis Gebhardt, the plaintiff's father and next friend in the case, attempted to bribe them to commit perjury in testifying that plaintiff was on the car.
The only question raised on this appeal is whether said testimony was properly admitted.
Plaintiff testified: That on June 7, 1913, she left the laundry, where she worked, at about 3 o'clock in the afternoon, and took a Delmar avenue car to go to her home on Wren avenue. That a Miss Laura Woods accompanied her to Union avenue, where they took a Union avenue car going north. Miss Woods rode with her until they reached Matthews avenue, when she alighted. As soon as Miss Woods got off, the plaintiff testified she fell asleep and rode out to the end of the car line which was a block beyond Wren avenue, where she intended to get off. That she did not awaken when the car turned around at the end of its journey, but remained in her seat asleep, riding backwards, until the car on its return trip reached Bircher Road, where it ran off the track and she was injured. She says she was acquainted with the conductor, a Mr. Daly, and that he carried her back to Bircher Road, where the accident happened, without awakening her, or turning the seat, or collecting another fare from her, or putting her off at Wren avenue.
There is no controversy in the evidence that a car did leave the track at Bircher Road, and that there were a number of passengers on it at the time, some of whom were injured. But there was no evidence of any one to corroborate the story of the plaintiff that she was on the car at the time, or that in going home that afternoon she fell asleep and rode out to the end of the car line, or that she remained sleeping in the car and was in the car when it made its return journey.
The suit was originally brought by Charles Fensky, as attorney for plaintiff, on February 16, 1914, by her father, Louis Gebhardt, as her next friend. On March 13, 1917, on the suggestion of plaintiff that she had attained the age of 18 years, the court ordered that her next friend be discharged, and that the further prosecution of the suit should be in her own name and right. On the trial March 19, 1917, Charles Fensky, plaintiff's original attorney, testified on behalf of the defendant that he withdrew from the case in open court, before it was first set for trial, on October 20, 1914, and that the plaintiff and her father were both present in court, and that he (Fensky) made a statement to the court in their presence at the time of so withdrawing. On objection of counsel for plaintiff, he was not permitted to say what that statement was. But, over the objection of plaintiff's counsel that the conversation was privileged, Fensky was permitted to state that, about three days before he withdrew from the case, the plaintiff was in his office, and that she admitted, in the presence of another attorney, Grant Gillespie, who was in no way connected with her case, that she was not on the car at all; that after that statement he went into open court and withdrew from the case.
Grant Gillespie testified for defendant: That he had an office in the same suite with Charles Fensky, and a few days prior to October 20, 1914, he was called into Fensky's office, while the plaintiff was there. That although he and Fensky had discussed this case and had conferences about it together as lawyers in the case, he (Gillespie) was not an attorney in the case, and was not in any wise connected with it. Over the plaintiff's objection that the conversation was privileged, the court permitted Gillespie to testify that, while he was in Fensky's office on this occasion, the question came up as to whether or not the plaintiff was on the car, and that she said that she took the car and went to Union avenue, and there she transferred to the Union avenue line; that she rode to the end of the line out to Walnut Park; that she went to sleep on the car, and, when she awakened, it was in the crash of the wreck, coming back somewhere near down the railroad tracks where they cross Union avenue. That he asked her whether she was on the car, and she said, "Well, I must have been." And he said, "You know whether you were on the car or not," and for her to tell the truth about it. Then she went on "and said she 'wasn't on the car."
Joseph Logomarsino testified for defendant that he was on the car when it was derailed, and that he had a case against the company for injuries to himself; that Charles Fensky was his attorney, and that his case was settled; that he did not see the plaintiff there. And, over the objection of plaintiff that the testimony was hearsay, he testified that plaintiff's father, Louis Gebhardt, came to see him and asked him if he saw plaintiff on the car, and that he told Gebhardt that he did not see her. Gebhardt came a second time, and this time he brought the plaintiff with him, and the witness said, "I don't recognize her in those clothes." Gebhardt asked plaintiff to go home and change her clothes, which she did, and returned, and still the witness could not recognize her as being on the car. The first time Gebhardt came, he brought the witness nearly a half a pint of whisky and a cigar. The next time Gebhardt said to witness, "If you can remember seeing my little girl on the car, I will give you $ 100," to which witness replied, "There is nothing doing."
Mrs Dietz, a witness for defendant, testified that she was on the car, and that she was one of the injured, and had a suit against the company, and that Charles Fensky was her attorney; that her case had been disposed of; that she was acquainted with the plaintiff, and with the plaintiff's father and mother; that she did not see plaintiff on the car at the time of the accident. And, over plaintiff's objection that it was hearsay, Mrs. Dietz testified that plaintiff's father Louis Gebhardt, was a friend of her husband's; that she saw him several times at her home, and he said to her, "he wanted to have his case set, and he could not find any witnesses for it," and he asked her, "could" she "do him a favor, and he give me $ 50 if I did swear to it I saw her in the car"; that she told him she would not do it, that she would tell nothing but the truth; that afterwards, a few...
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