Hall Motor Freight v. Montgomery

• Citation: 212 S.W.2d 748,357 Mo. 1188
• Decision Date: 14 June 1948
• Docket Number: 40613
• Parties: Hall Motor Freight, a Corporation, Appellant, v. Brookings Montgomery and Gertrude Montgomery
• Court: United States State Supreme Court of Missouri

212 S.W.2d 748

357 Mo. 1188

Hall Motor Freight, a Corporation, Appellant, v. Brookings Montgomery and Gertrude Montgomery

No. 40613

Supreme Court of Missouri

June 14, 1948

Rehearing Denied July 12, 1948.

Appeal from Jackson Circuit Court; Hon. James W. Broaddus Judge.

Affirmed.

Paul C. Sprinkle, William F. Knowles and Sprinkle & Knowles for appellant.

(1) The court erred in refusing appellant's offer of proof to the effect that respondent Brookings Montgomery was charged in court with reckless driving in the accident out of which this suit arose and stood upon his constitutional rights; said testimony was competent as an admission against interest by way of conduct. Ex parte Holliway, 199 S.W. 412, 272 Mo. 108; Reiling v. Russell, 134 S.W.2d 33, 345 Mo. 517; Mayhew v. Travelers Protective Assn. of America, 52 S.W.2d 29; Rice v. Jefferson City Bridge & Transit Co., 186 S.W. 568; Kamoss v. Kansas City & W.B. Ry., 202 S.W. 434; Pennington v. Kansas City Rys. Co., 213 S.W. 137, 201 Mo.App. 483; Harrison v. Railway Co., 291 S.W. 525; Freeman v. Kansas City Pub. Serv. Co., 30 S.W.2d 176; Grodsky v. Consolidated Bag Co., 26 S.W.2d 618, 324 Mo. 1067; Summers v. Keller, 133 S.W. 1180, 152 Mo.App. 626; Keller v. Summers, 171 S.W. 336, 262 Mo. 324; State v. Graves, 182 S.W.2d 46, 352 Mo. 1102; State v. Tyler, 159 S.W.2d 777, 349 Mo. 167; Middleton v. Kansas City Pub. Serv. Co., 152 S.W.2d 154, 348 Mo. 107. (2) The court erred in giving Instructions 3 and 4 on behalf of the respondents because said instructions eliminated appellants right to recover, notwith-standing the conduct of the respondents and the instructions when read together are conflicting with respect to the rights of the appellant and the rights of the respondents; said instructions contained as to the respondents the wrong degree of care. Bennett v. Lohman, 238 S.W. 792, 292 Mo. 477; Woolridge v. Bryan, 270 S.W. 658, 307 Mo. 234; Columbia Taxicab Co. v. Roemmich, 208 S.W. 859; Linstroth v. Peper, 188 S.W. 1125; Shaw v. Wilcox, 224 S.W. 58; White v. Missouri Motors Distributing Co., 47 S.W.2d 245, 226 Mo.App. 453; Davis v. F.N. Stamper Co., 148 S.W.2d 765, 347 Mo. 761; Jungeblut v. Maris, 172 S.W.2d 861, 351 Mo. 301.

Robert L. Robertson and Sam Mandell for respondents; Popham, Thompson, Popham, Mandell & Trusty of counsel.

(1) The court properly excluded appellant's attempt to prove that respondent Brookings Montgomery stood on his constitutional rights and refused to testify before a Justice of the Peace at Shawnee, Kansas, on a charge of reckless driving. Masterson v. St. Louis Transit Co., 204 Mo. 507, 103 S.W. 48; Garrett v. St. Louis Transit Co., 219 Mo. 65, 118 S.W. 68; State v. Conway, 348 Mo. 580, 154 S.W.2d 128; Hill v. Missouri Packing Co., Inc., 24 S.W.2d 196; Tennent Shoe Co. v. Birdseye, 105 Mo.App. 696, 78 S.W. 1036; Holden v. Berberich, 351 Mo. 995, 174 S.W.2d 791; Fries v. Berberich, 177 S.W.2d 640. (2) There was no error in the giving of defendants' Instruction 3. Heibel v. Ahrens, 55 S.W.2d 473; Disano v. Hall, 14 S.W.2d 483; Benoist v. Driveaway Co. of Missouri, 122 S.W.2d 86; McClave v. Moulton, 123 F.2d 450; Thomas v. Meyer, 150 Kan. 587, 95 P.2d 267; Cox v. Kellogg's Sales Co., 150 Kan. 561, 95 P.2d 531; Sec. 8385(b), R.S. Mo. 1939; Sec. 8-537, G.S. Kan., 1943, Supp. (3) There was no error in the giving of defendants' instruction 4. Bollinger v. St. Louis S.F. Ry. Co., 334 Mo. 720, 67 S.W.2d 985; Huss v. Heydt Bakery Co., 210 Mo. 44, 108 S.W. 63; Deschner v. St. Louis & M.R.R. Co., 200 Mo. 310, 98 S.W. 737; Vaughn v. Fisher, 32 Mo.App. 29; Restatement, Conflict of Laws, secs. 379, 380; Sec. 54(b), Civil Code of Missouri; Rule 3.14, Supreme Court of Missouri.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Appellant filed suit against respondents (husband and wife) to recover $ 1600 for damages to appellant's truck resulting from a collision between the truck and the car in which respondents were riding. The car was owned and driven by respondent Brookings Montgomery who filed a counterclaim to recover $ 1500 damages to his car and $ 5,000 for personal injuries. Mrs. Montgomery counterclaimed for $ 15,000 for personal injuries. The jury found against appellant on its claim for damages to the truck and found for Brookings Montgomery on his counterclaim in the sum of $ 1500 for damages to his car and for personal injury; and found for Mrs. Montgomery on her counterclaim in the sum of $ 8,000. Appellant filed motion for new trial on its claim against respondents and on the counterclaims. These motions were overruled and this appeal followed.

The collision occurred about 1:30 a.m., about 15 miles west of Kansas City, Missouri, on highway 10 in Johnson County, Kansas. Appellant's truck (a tractor-trailer) driven by its agent, was traveling east and respondents were traveling west. Appellant's case was submitted to the jury on the charge that respondents' car at the time of the collision was being driven on the left (wrong) side of the road; respondents' counterclaims were submitted on the same kind of a charge. In other words, each accused the other of being on the wrong side of the road.

Appellant assigns error on the exclusion of evidence and on respondent's instructions 3 and 4.

Neither side challenges the sufficiency of the evidence to support submission, hence it will not be necessary to set out the evidence at length. Infra we make more specific reference to the evidence.

Appellant contends that it was prejudiced by the exclusion of evidence. It appears in the record that respondent Brookings Montgomery was charged in a justice of the peace court in Johnson County, Kansas, with reckless driving on the occasion of the collision. At the trial of that case, September 19, 1945, Brookings Montgomery stood on his constitutional rights and declined to testify. At the close of the direct examination of Brookings Montgomery in the present case, the following occurred: "Mr. Sprinkle (counsel for appellant): Let the record show as cross examination of the defendant Brookings Montgomery that the plaintiff makes this offer to show that on September 19, 1945, that he (Montgomery) together with Mr. Robertson, his attorney, appeared before R. E. Baker, justice of the peace of Shawnee Township, Johnson County, Kansas, at Shawnee, Kansas, there to answer a charge of reckless driving and that after the testimony was in that through his attorney this statement was made by Mr. Robertson: 'I would rather the defendant not testify; the defendant will stand on his constitutional rights.'" Objection was made to the offering on the ground that Brookings Montgomery had taken the stand and was subject to cross examination; that the charge of reckless driving in Kansas was a misdemeanor and that he had the right to testify or not to testify in the justice of the peace court, and that his refusal to testify could not be "held to account against him" in the present case. The objection was substained and there was no cross examination of Brookings Montgomery.

Although the causes of action in the present case accrued in Kansas, neither side pleaded the Kansas law. We rule infra that the causes, however, are governed by the law of Kansas except as to procedural matters. The question on the exclusion of the offering is procedural and is governed by the law of the forum. 11 Am. Jur., p. 520, Sec. 202; Hopkins v. Kurn et al., 351 Mo. 41, 171 S.W.2d 625, 149 A.L.R. 762.

Our Constitution, Art. I, Sec. 19, provides that "no person shall be compelled to testify against himself in a criminal cause", and we might say that the Kansas Constitution is to the same effect. See General Statutes of Kansas, 1935, p. 41. So it appears that under both the law of the forum and the lex loci Brookings Montgomery was within his constitutional rights in refusing to testify in the justice court in Kansas, and appellant so concedes. But appellant argues that since Brookings Montgomery is a party to the present cause any "statement or any conduct" by him which is contrary to his evidence in the present case is admissible as an admission against interest. In the present case Brookings Montgomery testified that, at the time of the accident here involved, he was driving on his own side of the road and to the effect that the collision was not due to his fault.

In support of the assignment based on the exclusion of appellant's offering many cases are cited. Among these are Rice v. Jefferson City Bridge & Transit Company (Mo. App.), 186 S.W. 568; Pennington v. Kansas City Rys. Co., 201 Mo.App. 483, 213 S.W. 137; Harrison et al. v. St. Louis-S.F. Ry. Co. (Mo. App.), 291 S.W. 525; Freeman v. Kansas City Public Service Co. (Mo. App.), 30 S.W.2d 176; Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618; Summers v. Keller et al., 152 Mo.App. 626, 133 S.W. 1180; State v. Graves, 352 Mo. 1102, 182 S.W.2d 46.

None of the cases cited presented such a situation as here. We think the ruling in Masterson et al. v. St. Louis Transit Co (banc), 204 Mo. 507, 103 S.W. 48, is decisive on the point. The Masterson case was to recover damages for the death of the plaintiffs' son struck and killed by the defendant's street car. The motorman was a witness for the defendant. On cross examination he was asked if he testified at the inquest and answered that he did not. Then he was asked if he was present at the inquest and said that he was. Then counsel for the plaintiffs sought to introduce a transcript of the evidence taken at the inquest in which it appeared that the motorman was sworn as a witness and was asked "to state all about running over this boy" and said, "I don't care to testify; I might incriminate myself." The transcript was excluded. In sustaining the exclusion the court sai...