Gough v. General Box Co.

• Decision Date: 13 May 1957
• Docket Number: No. 45208,No. 2,45208,2
• Citation: 302 S.W.2d 884
• Parties: M. L. GOUGH, Respondent, v. GENERAL BOX CO., a corporation, Appellant
• Court: Missouri Supreme Court

Page 884

302 S.W.2d 884

M. L. GOUGH, Respondent, v. GENERAL BOX CO., a corporation, Appellant.

No. 45208.

Supreme Court of Missouri, Division No. 2.

May 13, 1957.

Rehearing Denied June 10, 1957.

Alexander & Robertson, Louis A. Robertson, Ernest E. Baker, St. Louis, Joseph B. Wentker, St. Charles, for appellant.

Wilbur C. Schwartz, St. Louis, Robert Niedner, St. Charles, for respondent. Joseph Nessenfeld, St. Louis, of counsel.

STOCKARD, Commissioner.

On August 27, 1950, plaintiff's eastbound tractor-trailer and defendant's westbound tractor-trailer collided on Cole Creek bridge near St. Charles, Missouri, on by-pass Highway 40. The jury returned a verdict in favor of plaintiff in the sum of $20,000 and defendant has appealed from the ensuing judgment. The parties will be referred to as in the trial court.

The principal controverted issue of fact at the trial was whether the collision occurred on plaintiff's or defendant's half of the highway. At the time of the collision it was nighttime and raining. As the two vehicles approached each other, each was on its proper side of the highway, and neither was being operated at an excessive rate of speed. Each driver was aware of the approach of the other. When plaintiff's vehicle was about halfway across the Cole Creek bridge, defendant's vehicle started to enter upon the bridge. The tractors passed each other without incident. It is plaintiff's contention that defendant's trailer then 'turned or jackknifed to the left, partly onto plaintiff's side of the road and into collision with the front part of plaintiff's unit.' Defendant contends that no part of its equipment got to the left of the centerline of the highway, and that plaintiff turned his truck into its vehicle. The damage done to the vehicles indicates that the left front of plaintiff's tractor came into violent contact with the forward left side of defendant's trailer. Further facts will be developed in the course of the opinion.

Defendant asserts on this appeal, among other things, that the trial court erred in permitting Dr. Crider to testify what plaintiff told him was the cause of the accident. This testimony was hearsay, but was admitted by the trial court as a part of the res gestae. Plaintiff contends that (1) the point is not properly before this court for review because no proper objection to the testimony was made at the trial, (2) the assignment of error in defendant's brief is for a reason different from that assigned at the trial and defendant is limited on this appeal to the objection stated at the trial, and (3) even if not properly admitted as a part of the res gestae, the testimony was admissible 'as a prior consistent statement.'

The accident occurred about one or one and one-half miles west of the city of St. Charles at about eleven o'clock (daylight time) in the evening of August 27, 1950. It is conceded that plaintiff was rendered unconscious as the result of the collision. Shortly thereafter other motorists arrived on the scene, and plaintiff was taken to a hospital in St. Charles. The distance to the hospital is not shown. Dr. Crider first saw plaintiff about one and one-half hours after the accident. After the doctor had testified concerning plaintiff's injuries, which were severe, and the treatment he administered, he was asked, 'What was the first thing that he said to you of any importance about this occurrence?' Defendant's objection was as follows: 'I am going to object to any statement or statements made by the plaintiff in this case outside of the presence of this defendant. It would be self-serving, hearsay and incompetent.' Counsel for plaintiff then stated that the testimony was offered as a part of the res gestae, and that he 'expected' to show that plaintiff was unconscious all the way to the hospital. The trial court permitted defendant to cross-examine the doctor at that time, and it was thereby brought out that the hospital records showed that plaintiff was brought by Mr. Runge and Mr. Hollrah to the hospital at 10:30 o'clock p. m. (apparently this time reference was to standard time); the doctor arrived at the hospital about fifteen minutes after he received an emergency call; the doctor treated plaintiff while he was 'under a local'; plaintiff 'appeared' to the doctor to be conscious because when spoken to he answered and that 'would indicate' that he was conscious; and the doctor inquired of the plaintiff what happened to him in an attempt to get his mind off of what the doctor was doing and allay his fears but not to determine what treatment he should give. The trial court interrupted the cross-examination to overrule defendant's objection. The doctor then testified that in reply to his question, 'What happened to you?' the plaintiff stated that 'a truck had jackknifed into him' and that the last thing he remembered was a trailer coming down on top of him and he ducked. The doctor made no note of this statement by plaintiff on the hospital record as constituting a part of the history of the case.

There is no merit to the contention of plaintiff that no proper objection was made at the trial. Defendant's objection was, among other things, that the testimony of the doctor as to what plaintiff said was hearsay, and the testimony clearly was hearsay when offered to prove the truth of the facts contained in the statement. The trial court so understood the objection and so do we. The burden then was on the plaintiff to make a sufficient showing that the statement was admissible as an exception to the hearsay rule. Woods v. Southern Ry. Co., Mo.Sup., 73 S.W.2d 374; Sconce v. Jones, 343 Mo. 362, 121 S.W.2d 777; Roush v. Alkire Truck Lines, Inc., Mo.Sup., 299 S.W.2d 518.

Neither do we agree with plaintiff that the only objection assigned in defendant's brief is for a reason different from that assigned at the trial. Defendant's point in its brief is poorly worded, but it is readily apparent, even by a casual reading, that it assigns as error the action of the trial court in permitting the testimony of the doctor as to a statement made to him by plaintiff because the testimony was hearsay. This was sufficient to present to this court the contention that the referred to testimony was inadmissible for the asserted reason. Defendant also contends, perhaps unnecessarily, that the statement was not admissible as an exception to the hearsay rule because it was made 'long after the accident and after plaintiff had discussed the accident in a car on the way to the hospital with other persons.'

Plaintiff cites Piehler v. Kansas City Public Service Co., 360 Mo. 12, 226 S.W.2d 681, 684, in support of his position that the testimony of the doctor was admissible as a 'prior consistent statement.' In that case it was held that evidence of prior statements of a witness consistent with his testimony at the trial may be offered for the purpose of rehabilitating the witness when he has been impeached by the showing of prior inconsistent statements. Plaintiff admits that it is 'debatable' whether he had been impeached. His testimony at the trial was that defendant's truck 'jackknifed' and hit his truck. On cross-examination of plaintiff, the defendant brought out that in a statement written by another but signed by plaintiff, he supposedly said that 'a transport truck sideswiped me causing it to turn over and sustain the above injuries and completely wrecked my truck.' Plaintiff denied making 'all that statement.' Under the circumstances of this case and the evidence concerning the damage done to the two vehicles, we do not consider the statement that defendant's truck jackknifed and hit plaintiff's truck to be inconsistent with the statement that defendant's truck sideswiped plaintiff's truck. However, in any event, testimony of a prior consistent statement is not admissible as proof of the facts stated. Hammond v. Schuermann Building & Realty Co., 352 Mo. 418, 177 S.W.2d 618. Plaintiff specifically offered the testimony of the doctor, and the trial court admitted it, as part of the res gestae, that is, as proof of the facts, stated, and it was admissible for that purpose, if at all, only on the basis that it constituted an exception to the hearsay rule as a part of the res gestae.

We shall first dispose of defendant's contention that the statement was improperly admitted because it was made after the plaintiff had discussed the accident with other persons in a car on the way to the hospital. At the time the testimony of the doctor was offered, plaintiff's counsel stated that he expected to show that plaintiff was unconscious all the way to the hospital. It was not until rebuttal that he attempted to make that showing. Plaintiff then called as his witness Theodore B. Runge who had taken him to the hospital. Runge was assisted and accompanied by two friends by the name of Mossman and Hollrah. Runge testified as follows:

'Q. You put him [plaintiff] in the back of your car? A. Well, a couple of fellows, my buddy and whoever was there with me.

'Q. Mossman and Hollrah, A. Yes.

'Q. Was he conscious? A. No; Hollrah was sitting on the back seat and this fellow was saying, 'What in the world happened?' and we explained to him what happened and it went on all the way to St. Charles.

'Q. After you got him to St. Charles, what did you do? A. Took him to the hospital, the back door.'

Plaintiff contends that this testimony does not show that he asked 'What in the world happened,' but that the words 'this fellow' refer to Mossman. We cannot agree. This testimony clearly indicates that plaintiff was unconscious when he was placed in Runge's automobile, but that while on the trip to St. Charles, in response to questions by plaintiff, Runge and his two companions explained to him what had happened. However, this testimony was not before the trial court when it ruled on the admissibility of the testimony of the doctor, and when this testimony of Runge subsequently was admitted defendant...