Glenn v. Stewart

• Decision Date: 12 March 1902
• Parties: GLENN v. STEWART et al.
• Court: Missouri Supreme Court

67 S.W. 237

167 Mo. 584

GLENN v. STEWART et al.

Supreme Court of Missouri, Division No. 1.

March 12, 1902.

EVIDENCE — REBUTTAL — DISCRETION OF COURT.

1. Where, in an action for personal injuries, the plaintiff's attorney stated that he had but one other witness to offer in rebuttal, — a physician who would testify as to the surgical features of the case, — and the court discharged all the witnesses, and took a recess, on the opening of the court it was error to refuse to permit a witness other than the physician, who was not offered, to testify in rebuttal of the defendant's evidence.

2. The court, in the exercise of sound judicial discretion, should have permitted a witness for plaintiff to testify in rebuttal, after a recess, to facts coming to the knowledge of the plaintiff's attorney for the first time during the recess, though such attorney had stated to the court before recess that he had but one other witness, — a different one from that presented, — whereon the other witnesses had been discharged.

Appeal from St. Louis circuit court; Wm. Zachritz, Judge.

Action by Thomas B. Glenn against James Stewart and others. From an order granting the plaintiff a new trial, the defendants appeal. Affirmed.

Seddon & Blair and Robt. A. Holland, Jr., for appellants. Lee Meriwether, for respondent.

MARSHALL, J.

Appeal from an order granting the plaintiff a new trial. The plaintiff, an employé of the defendants, was injured by the fall of a derrick in consequence of the use of an alleged insufficient or defective rope. The answer is a general denial, with a plea of negligence of a fellow servant. The reply is a general denial. The case is here upon what is designated a complete record, but neither the testimony nor the instructions are preserved in the record. The bill of exceptions contains the following recitals: "The plaintiff introduced evidence tending to sustain the issues on his part and to support the allegations in his petition, and rested his prima facie case. The defendants then introduced evidence tending to sustain the issues on their part, and to support the allegations of their answer, and rested. The plaintiff then introduced evidence tending to rebut the evidence and defense of the defendants. Then, and about the hour of 1 o'clock p. m. of Wednesday, the 1st day of March, 1899, — a day in said February term of this court, — Mr. Meriwether, attorney for the plaintiff, addressed the court, and the following colloquy and further proceedings occurred: `Mr. Meriwether: If the court please, I have one more witness. I observe it is about 1 o'clock, and I would like to have the privilege of placing one witness on the stand after recess. The Court: Can't you put him on now? Mr. Meriwether: He is not here. He is a doctor. That will be my last witness. The Court: Very well. Will you gentlemen have your instructions ready at 2 o'clock then?' Whereupon the court discharged the witnesses in the case, and took a recess until 2 p. m. At the hour of 2 o'clock p. m. of the same day the court reconvened, and the following further proceedings were had in this case: John Daniel Evans, being duly sworn on the part of the plaintiff, proceeded to testify as follows: Direct examination by Mr. Meriwether for plaintiff: `Q. Were you employed upon the Brown Building, at Washington avenue and Twelfth street in St. Louis, on the 1st of last June? A. Yes, sir. Mr. Blair: We insist, your honor, on this objection, that this witness should not be allowed to testify. At the time the court took its recess, Mr. Meriwether distinctly stated that he closed his case, reserving the right only to call one more witness, a medical expert. To this we agreed, and the court then discharged all the witnesses, and we are not prepared to meet any other evidence. The Court: Mr. Meriwether, I understood that you would have but one witness, and that a physician. Mr. Meriwether: I could not get the doctor, and I desire to place this witness upon the stand in rebuttal of one of the defendant's witnesses, who is now here in the court room. Mr. Blair: Well, your honor, of course our understanding was that the case was closed except as to the one medical gentleman. The Court: Yes, it was a clean-cut understanding, but I do not think you will be damaged if it is merely rebutting testimony; but I will not permit anything else, and it must be in connection with the witness now in court. Mr. Blair: It may be that this testimony will affect the other witnesses. The Court: The counsel states not. It was a distinct understanding here, and upon that understanding I discharged all the witnesses before recess. Mr. Meriwether: I did not become aware of this testimony until twenty minutes after the adjournment of court. The Court: I had meant to finish this case before the recess, and discharged all the witnesses accordingly. Mr. Meriwether: I will place only one witness on the stand, and will not take as long in examining him as I should have taken with the physician, and he will testify in rebuttal only of a witness now in the court room. Mr. Blair: We object, your honor. The case was closed before the recess, as we understood it, with the exception of the rebuttal testimony upon the medical and surgical features of the case. The Court: I am not clear that, if I admit this, it will not be reversible error, because the case was closed at the recess hour, with the exception of the medical witness. Mr. Meriwether: It is true that I mentioned the fact that I expected the one more witness to be a physician. That was my expectation, and, if the doctor were here, I should place him on the stand; but I maintain, your honor, that the courts are here to further justice, and not to split technicalities, and there can be no possible detriment done the defendant's case when I state that I will ask this witness to testify upon a direct statement made by the defendant's witness, who is now in this court room, and which will affect no other witness. Mr. Blair: We submit, your honor, that this case has been closed. It...