Hammond v. Schuermann Building & Realty Co.

• Citation: 177 S.W.2d 618,352 Mo. 418
• Decision Date: 07 February 1944
• Docket Number: 38567
• Parties: Isabelle Hammond v. Schuermann Building & Realty Company, a Corporation, Norman Schuermann, Lee Schuermann, and Harry Schuermann, Appellants
• Court: United States State Supreme Court of Missouri

177 S.W.2d 618

352 Mo. 418

Isabelle Hammond v. Schuermann Building & Realty Company, a Corporation, Norman Schuermann, Lee Schuermann, and Harry Schuermann, Appellants

No. 38567

Supreme Court of Missouri

February 7, 1944

Appeal from Circuit Court of City of St. Louis; Hon. William B Flynn, Judge.

Remanded (with directions).

A E. L. Gardner and Wilton D. Chapman for appellants.

(1) Plaintiff, by her Instruction 1, submitted her case to the jury upon the theory that the death of her husband, Upton Hammond, was the result of being struck on the head by Abbie Chestnut, acting as agent of, and in concert with, the defendants. In this situation, the written statement made by Abbie Chestnut after the death of said Upton Hammond would not be admissible as evidence against these defendants, under the rule that the acts, declarations and admissions by a co-defendant or co-conspirator, after the conspiracy is ended, are not competent evidence against other co-defendants or conspirators. State v. Roberts, 201 Mo. 702; State v. Hill, 273 Mo. 329; Hayes v. United States, 231 F. 106, 242 U.S. 470; Brooks v. United States, 8 F.2d 593; Troutman v. United States, 100 F.2d 628; Heard v. United States, 255 F. 829. (2) The statement in writing (Exhibit F) made by Abbie Chestnut after the death of Upton Hammond, even if admissible against Chestnut if he had remained a defendant, was not competent evidence against the other defendants. Galatas v. United States, 80 F.2d 15; Farmer v. United States, 56 S.Ct. 574; Mulloy v. United States, 56 S.Ct. 575. (3) The written statement made by Abbie Chestnut after his arrest, even if competent as to him, was inadmissible as evidence against the defendants herein. Pappas v. United States, 292 F. 982.

Paul Dillon and Philip Foley for respondent.

It was error on the part of the court to give this instruction for the reason that the same was too broad and too all-inclusive. The following cases support this: Zander v. Transit Co., 106 Mo. 445; Stetzler v. Met. Street Ry Co., 210 Mo. 704; Feary v. Metropolitan Street Ry. Co., 162 Mo. 75; Shartzer v. Atchison, T. & S.F. Ry. Co., 250 S.W. 950; St. Louis v. Worthington, 52 S.W.2d 1003; Brule v. Mayflower Apartments Co., 113 S.W.2d 1058; Courter v. George W. Chase & Son Mercantile Co., 299 S.W. 622; Corbett v. Terminal R. Assn. of St. Louis, 82 S.W.2d 97; Buckry-Ellis v. Railroad, 158 Mo.App. 499; Pulitzer v. Chapman, 85 S.W.2d 400; Andrew v. Linebaugh, 260 Mo. 623; 38 Cyc., p. 1675.

Bohling, C. Westhues and Barrett, CC. , concur.

OPINION

BOHLING

The issue for decision is whether the italicized portion (italics throughout are ours) of the following instruction constitutes error at law: "The court instructs the jury that the written statement of Abbie Chestnut read in evidence must not be considered by you as evidence against the Schuermann Building & Realty Company or against Norman, Lee and Harry Schuermann." The verdict of the jury was for the defendants, all named in the instruction. Plaintiff's motion for new trial was sustained. ^[*] Plaintiff's contention here is that the instruction was erroneous because it "was too broad and too all inclusive." Of different opinion at first, we, after consideration, conclude the fault is one of nondirection and not of misdirection, and plaintiff, having taken her chances with the jury without requesting the court to cover or submitting an instruction covering the matter omitted from the quoted instruction, may not complain upon being disappointed by the action of the jury in returning a verdict in favor of her adversaries.

Isabelle Hammond instituted an action for $ 10,000 damages against Schuermann Building & Realty Company, a corporation, Norman Schuermann, Lee Schuermann, Harry Schuermann, and Abbie Chestnut for the alleged wrongful death of her husband. Later, she dismissed as to Abbie Chestnut. It appears that some men engaged in an altercation or riot in St. Louis county and Upton Hammond, plaintiff's husband, was killed. Mr. Chestnut was taken into custody in connection with the homicide and gave a written narrative, signed by his mark, of the occurrence to the officers. After his testimony in chief for defendants and cross-examination, this narrative was offered in evidence by plaintiff in rebuttal for the stated reason that it contradicted his sworn testimony before the jury. Then, in due course, followed defendants' instruction, quoted supra, the verdict for defendants, the order granting a new trial and defendants' appeal.

Post-rem narratives of a litigant are admissible and competent evidence on the merits against such narrator when admissions against interest. Holt v. Williams, 210 Mo.App. 470, 478, 240 S.W. 864, 866[5]. But post-rem narratives of one conspirator are generally hearsay as to coconspirators not participating in such narratives and are inadmissible, and being inadmissible are incompetent and are not to be considered, on the merits against the nonparticipating coconspirators. State v. Hill, 273 Mo. 329, 339, 201 S.W. 58, 61[4] (stating, speaking to that portion of the instruction bearing on post-rem acts and declarations of one conspirator, "that such acts and declarations are not admissible against the appellant after the consummation of the common enterprise"); State v. Roberts, 201 Mo. 702, 729, 100 S.W. 484, 491; Millspaugh v. Missouri Pac. Ry., 138 Mo.App. 31, 33, 119 S.W. 993, 994 (in remanding a cause for failure to instruct that depositions taken without notice to one defendant should not be considered as evidence against it, said: "It was proper therefore to admit the depositions and then advise the jury that they should not be considered against the Missouri Pacific Company"); State v. Priesmeyer, 327 Mo. 335, 339(I), 37 S.W. 2d 425, 427[2, 3]; Hays v. United States, 231 F. 106, 109[3]; Heard v. United States, 255 F. 829, 835[6]; Troutman v. United States, 100 F.2d 628, 634[20]; Galatas v. United States, 80 F.2d 15, 23[11], certiorari denied, 297 U.S. 711, 56 S.Ct. 574, 80 L.Ed. 998; Pappas v. United States, 292 F. 982, 983[2]. The nonparticipating litigants are entitled to an instruction on the limited effect of their coparty's narrative. State v. Hill; Millspaugh v. Missouri Pac. Ry. Co.; Hays v. United States; Troutman v. United States; all supra. State v. Irvin, 324 Mo. 217, 222(II), 22 S.W. 2d 772, 774[3], observed: "However, we feel impelled to say that the evidence relating to the admissions of Clinton Irvin and W. O. Irvin should not have been considered as evidence against their codefendants and the trial court should have so instructed the jury; . . ." where five members of a family were tried for larceny.

The rule generally applicable to evidence of limited effect was quoted by Hyde, C., in Ferril v. Kansas City L. Ins. Co., 345 Mo. 777, 791, 137 S.W. 2d 577, 585[8]: "'The rule is recognized and established by many decisions of this court that where evidence is admissible for one purpose or one issue but would be improper for other purposes and upon other issues in the case, it should be received. The opponent then has a right to an instruction if he should request it limiting the extent to which and the purpose for which the jury may consider such evidence.'" Citing authority. Such is the effect of cases cited by plaintiff: City of St. Louis v. Worthington, 331 Mo. 182, 191[1-4], 52 S.W. 2d 1003, 1008[1-6]; Brule v. Mayflower Apts. Co. (Mo. App.), 113 S.W. 2d 1058, 1060[2]; Courter v. Chase & Son Merc. Co., 222 Mo.App. 43, 47, 299 S.W. 622, 624[4-7]; and Corbett v. Terminal Rd. Ass'n, 336 Mo. 972, 982, 85 S.W. 2d 97, 103[10] (with respect to a patient's narrative of his condition to his physician). We need not concern ourselves whether this rule with respect to the admissibility of evidence for a limited purpose is without exception in extreme instances. It involves risks in the administration of justice under our jury system. Its practically universal application finds justification in the assumption that juries of laymen follow the instructions of the court limiting the evidentiary value of such evidence and do not improperly extend its scope and consider it relevant in determining factual issues for which it is incompetent and its consideration prejudicial. The rule calls for both inclusion and exclusion; i.e., the purpose for which the evidence is competent and more important, the evidence being in, the purposes for which its consideration is incompetent and prejudicial. The prejudicial effect of evidence incompetent on a given issue intensifies with its apparent bearing on and the detrimental effect of the proof of said issue on the affected litigant. Such litigant's recourse is an instruction on the scope of the evidence and the jury comprehending the effect of and following the instruction in its deliberation.

The evidence within the instant instruction was offered by plaintiff in rebuttal for the sole purpose of impeaching the witness Chestnut. It was original and competent evidence on the fact that Chestnut made the assertions contained in the narrative but as to defendants was hearsay evidence. "But impeaching evidence is not evidence of the fact touching which the witness is sought to be impeached. It is only the admission of parties which is evidence of the facts admitted." Rombauer, J., in Short v. Bohle (1895), 64 Mo.App. 242, 247. It is not received and should not be considered "as evidence against the" other litigant. State v. Swain, 68 Mo. 605, 615(IV); Kennard v. McCrory, 234 Mo.App. 626, 632, 136 S.W. 2d 710, 714[2, 3] citing cases; Fesler v. Hunter (Mo. App.), 35 S.W. 2d 641, 643[7]. Where the impeaching testimony was the only evidence on which to sustain a verdict for plaintiff, the court, in ordering the discharge of an accused, said: ...