Harrell v. Quincy, O. & K. C. R. Co.

• Decision Date: 15 May 1916
• Docket Number: No. 17416.,17416.
• Citation: 186 S.W. 677
• Court: Missouri Supreme Court
• Parties: HARRELL et al. v. QUINCY, O. & K. C. R. CO.

186 S.W. 677

HARRELL et al. v. QUINCY, O. & K. C. R. CO.

No. 17416.

Supreme Court of Missouri. In Banc.

May 15, 1916.

Rehearing Denied June 2, 1916.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

Action by Opal Harrell and others, by Pearl Blankenship, as their next friend, against the Quincy, Omaha & Kansas City Railroad Company. Judgment for plaintiffs in the circuit court was affirmed on appeal to the Court of Appeals, and thence certified to the Supreme Court. Judgment of circuit court affirmed.

Dudley & Selby, of Gallatin, and J. G. Trimble and Willard P. Hall, both of Kansas City, for appellant. Alexander & Alexander, of Portland, Or., John C. Leopard, of Gallatin, Edwin R. Sheetz, of Trenton, and E. M. Harber, of Kansas City, for respondents.

BROWN, C.

This cause comes to us from the Kansas City Court of Appeals, Ellison, J., dissenting from the judgment of affirmance entered by that court on the ground that the trial court erred in permitting the deposition of F. A. Austin, taken by defendant, to be read by the plaintiffs on the trial; the witness not being or residing within the jurisdiction of the court. Judge Ellison was of the opinion that the decision of the court, founded upon the opinion of the majority was contrary to the decisions of this court in Borders v. Barber, 81 Mo. 636, 644, Leslie v. Rich Hill Coal Mining Company, 110 Mo. 31, 37, 19 S. W. 308, and Bank v. Thayer, 184 Mo. 61, 99, 82 S. W. 142, and at his instance the cause was certified to this court.

This is a suit brought by the children of Arthur Harrell, who sued by their mother, Pearl Blankenship, as their next friend, to recover the statutory penalty for the death of their father on December 6, 1906, from falling from a scaffold to the ground, a distance of about 19 feet. It was alleged that he was knocked off the scaffold by the negligence of defendant in improperly shoring a pile which was being put in its place in the reconstruction of a bridge in the line of the defendant's railroad without interfering with the traffic. Austin was the foreman, and the deceased was a member of the bridge gang engaged in this work. The pile had been driven to its place in the ground, and the top had been forced into place by a shore or prop, consisting of a piece of timber the foot of which had been placed against another pile, and a lifting jack, which had been placed between the upper end of the timber and the pile to be moved, by the operation of which the latter had been forced into its proper place. This shore, on account of its alleged negligent construction and use, "buckled" at the point of contact between the timber brace and the jack releasing the pile, which, as the evidence tends to show, flew back to and beyond its old position, striking the scaffold and throwing the deceased from it, as we have already stated. The details, as shown by the evidence, are fully and correctly set forth in the statement contained in the majority opinion of the Court of Appeals, to which we will refer if necessary.

Mrs. Harrell, now Mrs. Blankenship, the next friend by whom the plaintiffs, who are all minors, sue in this case, brought suit on her own account for the death of her husband August 2, 1907, about eight months after it occurred, and on the 20th of the same month the defendant, after notice to the plaintiff, who appeared by counsel and cross-examined, took this deposition and filed it in due time in the case. On December 5, 1907, these plaintiffs by their mother, as next friend, brought their suit in the same court for the same penalty, in which they suffered nonsuit in December, 1908, and brought this suit upon the same cause of action in the same court on March 11, 1909. They afterward, and without objection as to time, filed the deposition in this suit, and were permitted against the objections of defendant to read it upon the trial. These objections are as follows:

"First, the deposition was not taken in this case, nor in a case where the parties plaintiff and defendant were the same; second, the party called plaintiff in that so-called case is not the same as the party plaintiff or parties plaintiff in this case; third, there is no privity between the parties plaintiff in this case and the plaintiff in that case; fourth, that case had no legal existence; fifth, there is no showing made of why this deposition should be read."

The last of these is not now insisted upon, as the deposition shows upon its face that the witness resided in Nevada, Mo.

The question so raised is an important one, and, as did the Court of Appeals, we have given it careful consideration. In doing so we have been mindful that the opinions of courts, like deeds and wills and other writings, must be considered in their relation to the facts to which they pertain, and that failure to do so frequently leads to the absurd application of the most direct and simple expressions.

In Borders v. Barber referred to by the dissenting judge of the Court of Appeals, the defendant offered in evidence the deposition of Luke White, in a suit in which Joseph C. Neece was plaintiff and Borders and the St. Louis Life Insurance Company and others were defendants, theretofore pending in the same court. The matter in issue in that suit is not referred to in the opinion, but the court disposes of the question as follows:

"While it cannot be maintained, in admitting depositions taken to be used in another trial, that complete mutuality is required, as in the case of judgments, yet the general rule so far applies that the issues in both cases must be the same. I know of no authority entitled to recognition for the admission of a deposition taken in a suit between A. and B. against B. in a subsequent suit of B. against C., where B. is claiming no right or succession under the suit between him and A., and where C. is in no wise in privity with either party to the action of B. against A. Parsons v. Parsons, 45 Mo. 266; Adams v. Raigner, 69 Mo. 363; Weeks' Law Dep. § 471. It is true that the deposition of White bore upon a question at issue in this action, but the issues in the two suits were not by any means the same, and the parties are not the same. The deposition was properly excluded."

This careful statement of the law in that case gives us little or no light in this, except the statement of the general rule, to which we all adhere whenever it is applicable, that the issues in both cases must be the same. In Leslie v. Rich Hill Coal Mining Company, supra, it was held that a deposition taken in a suit by the same plaintiff against the mining company alone could not be read in a case in which the mining company and another were the defendants until the suit had been dismissed as to the new party, and that then the right to take advantage of a failure to give notice of its filing in the last case revived, although the irregularity would have been waived had the new party not been joined. This case fails to state how the issues were affected by the presence of the new party, and in other respects we fail to detect its similarity to this case. The decision was, however, evidently right, for the right to read a deposition taken in another case depends largely upon the opportunity of the party against whom it is used to examine the witness. In Bank v. Thayer the court disposes of the question there raised as follows:

"Nor was there error in excluding the deposition of P. C. Cowling, which was offered by defendant, and for several reasons. In the first place, the deposition was taken in another case where the parties were not the same as in this, nor were the issues the same. In the second place, the deposition was not filed in this case, and no notice ever given by the defendant that he desired or expected to read said deposition. Leslie v. Rich Hill Coal Mining Co., 110 Mo. 31, 19 S. W. 308; Borders v. Barber, 81 Mo. 636."

Neither of these cases seems to us to have any application to the one we are now...