Holloway v. Shepardson

• Decision Date: 08 June 1953
• Docket Number: No. 43391,No. 2,43391,2
• Citation: 364 Mo. 14,258 S.W.2d 656
• Parties: HOLLOWAY v. SHEPARDSON
• Court: Missouri Supreme Court

Page 656

258 S.W.2d 656

364 Mo. 14

HOLLOWAY v. SHEPARDSON.

No. 43391.

Supreme Court of Missouri, Division No. 2.

June 8, 1953.

Bogutski & Bamburg, Sedalia, for appellant.

C. J. Junge, Cole Camp, F. M. Brady and Edwin F. Brady, Warsaw, for respondent.

BOHLING, Commissioner.

Marie Holloway, by her next friend Fay Holloway, sued Walter K. Shepardson for $1,000 actual and $10,000 punitive damages arising out of an alleged indecent assault. The verdict and judgment were for the defendant. Plaintiff appealed and claims error in the admission of certain evidence and the giving of an instruction. Defendant contends error was not committed and that the plaintiff failed to make a submissible case.

Defendant bases his contention that plaintiff failed to make a submissible case upon plaintiff's failure to make outcry and failure to make complaint for three or four days. The issue calls for the evidence favorable to plaintiff.

Plaintiff married James Holloway January 1, 1951, and they lived at Warsaw, Missouri. She was reared at Avery, Missouri. She went to work for defendant, who practiced dentistry in Warsaw, as a receptionist and assistant on April 7, 1951. She was 17 years of age. Defendant and his family lived in an apartment above his office. He worked on some Thursdays but generally Thursday was his day off. On Wednesday, April 25th, defendant informed plaintiff they would work the following day. Defendant came in on Thursday about 9:00 a. m. and gave plaintiff some instructions. Defendant returned about 11:30 and soon thereafter while she was between two tables in the laboratory, in a corner as she expressed it, defendant approached her, put his left arm around her, held her tightly and indulged in improper familiarities with her person; that is, the unfastening and lowering of her clothing to her waist and kissing her breasts.

Plaintiff testified that when defendant started to unbutton her dress she told him 'No'; that she was 'scared', did not know where defendant's wife was, did not know what to do, kept telling defendant 'No'; that she tried to scream and he put his hand over her mouth, and when he took it away, she started crying. She was crying and defendant helped her with her clothing. She walked out of the office and home. She regained her composure by the time her husband came home. This was her first experience. She was afraid to tell her husband, but had to make some explanation to him to quit work. She returned to work on Friday and Saturday. When defendant paid her about 5:00 p. m. Saturday, he started to unbutton her dress again. She was 'scared,' started to cry, and managed to get away and go home.

Plaintiff and her husband drove to Kansas City Saturday night to visit plaintiff's parents and returned home Sunday evening. She did not mention the matter to her parents, stating she didn't know who to tell or what to do.

Plaintiff did not go to work Monday morning, stating she couldn't go to work. She was crying when Mrs. Fay Holloway, her mother-in-law, came in. She told her what had occurred, and, later that day, told her husband. Mrs. Holloway and plaintiff's husband corroborated plaintiff.

On Monday, May 7, plaintiff, her husband and mother-in-law, at the request of defendant and defendant's wife, were indefendant's office. While there plaintiff told defendant in the presence of his wife of the occurrences. Defendant's wife left. Then as plaintiff, her husband and mother-in-law were leaving, defendant, according to their testimony, stated 'he was sorry it all happened.' Plaintiff's husband replied: 'Well, you should have thought of that before you tried anything'; and defendant answered: 'Yes, I should have.'

The foregoing is a sufficient statement, although there are other facts of record favorable to plaintiff's case.

The defense was that defendant worked the whole of the Thursday in question on a home he had under construction for his family and was not at his office; and that he never committed any assault of any nature upon plaintiff at any time, including the Thursday and Saturday in question.

In Champagne v. Hamey, Div. II, 189 Mo. 709, 727, 728, 731, 88 S.W. 92, 97, 99, a suit for damages arising out of an alleged forcible rape (see section 559.260 RSMo 1949, V.A.M.S.) and stressed by defendant, plaintiff had failed to make any complaint of the occurrence for about a year and the court reversed the judgment, being unwilling to approve a plaintiff's verdict in the circumstances. The other opinion cited by defendant, State v. Hamey, Mo.Sup., Div. II, 1901, 65 S.W. 946, involving the same facts as Champagne v. Hamey, supra, never became the opinion of the court as, upon transfer to Court en Banc, the conviction of said defendant under a charge of carnal knowledge of an unmarried female of previous chaste character between the ages of fourteen and eighteen (see Sec. 559.300, Id.) was affirmed in State v. Hamey, 1902, 168 Mo. 167, 67 S.W. 620, 57 L.R.A. 846. The instant case is not a case involving a rape or an assault with intent to rape. Plaintiff made complaint on the fourth day after the first occurrence. In the circumstances of the instant case plaintiff's failure to make outcry and failure to sooner complain only went to the weight to be accorded plaintiff's testimony by the jury. State v. Bigley, Mo.Sup., 247 S.W. 169, 171[4, 5, 7]; Linville v. Green, 125 Mo.App. 289, 301, 102 S.W. 67, 70; State v. Cobb, 359 Mo. 373, 221 S.W.2d 745, 749; State v. Dilts, 191 Mo. 665 675(IV), 90 S.W. 782, 786; State v. Barnes, 325 Mo. 545, 29 S.W.2d 156, 158.

To establish that on Thursday, April 26th, he was working on his new home and was not at his office, defendant produced and offered in evidence over plaintiff's objections a statement covering materials he had purchased from a lumber company in the month of April, 1951, which statement had been mailed to him the first of the month following. From the fact the statement disclosed among the numerous entries thereon that several doors had been purchased on April 26th for his home, defendant was positive in his testimony that he had worked on his new home and was not at his office that day. Gene Bibb, the manager of the lumber company, and Robert Tucker, a carpenter working on the house, corroborated defendant on this fact issue, but neither had any independent recollection of the date the doors were purchased. Each relied on the exhibit to establish the date.

Mr. Bibb testified that the lumber company made out its charge sales tickets in triplicate. A yellow copy is given the customer at the time of purchase. A pink copy is kept as a permanent record. A white copy is used by the bookkeeper to post the journal. The ledger is posted from the journal and is used for making out the monthly statements forwarded to customers at the end of the month. When payment is made, the white copy is delivered to the customer. The exhibit was the monthly statement forwarded to defendant. It is in the handwriting of Mrs. Stull, the bookkeeper. She was not a witness and there is no showing she was unavailable.

The Uniform Business Records as Evidence Act broadens the common law on the admissibility in evidence of writings and records. Section 490.680 RSMo 1949, V.A.M.S., so far as material, provides: 'A record of an act, condition or event, shall, insofar, as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event * * *.'

Plaintiff states that the original credit sales tickets, the journal and the ledger, all of which were in existence, would have been admissible upon a proper foundation being laid. The credit sales tickets are the original record of the acts, and the journal and ledger entries are records made in the regular course of the business at or near the time of the act and kept by the company to permanently reflect its transactions. Their trustworthiness is derived from their source and original and permanency. The monthly statements of the accounts forwarded to the customers are copies of entries appearing in the ledger, in the nature of narratives of past events, and not the business records of the acts therein set forth. They constitute communications between the company and its customers, and were of transactions with which plaintiff had no connection or knowledge. The company's manager testified the sales tickets would have to establish the date. The exhibit was written hearsay. It should have been excluded. Further, there was no showing that it was a true copy. This conconclusion finds support in the following cases. Palmer v. Hoffman, 318 U.S. 109, 114, 63 S.Ct. 477, 87 L.Ed. 645, 144 A.L.R. 719; Masterson v. Pennsylvania R. Co., 3 Cir., 182 F.2d 793, 796[3, 4]; Amtorg Trading Corp. v. Higgins, 2 Cir., 150 F.2d 536, 539; John Irving Shoe Co. v. Dugan, 1 Cir., 93 F.2d 711, 712[3, 6]; In re Daniels' Estate, 185 Or. 642, 205 P.2d 167, 173; Kliethermes Motor Co. v. Cole Motor Service, Inc., Mo.App., 102 S.W.2d 819, 821[5, 6]; Jungkind Photo Supply Co. v. Yates, Mo.App., 257 S.W. 820, 821[2-4]; Miller v. Quincy, O. & K. C. R. Co., 205 Mo.App. 463, 473, 225 S.W. 116, 119.

Defendant's cases differ on the facts. The exhibits in Reinecke v. Mitchell, 54 N.M. 268, 221 P.2d 563, 21 A.L.R.2d 770, under Reinecke's evidence were carbon copies of the weight tickets delivered to defendant by plaintiff's truckers upon the delivery of loads of hay purchased by defendant from plaintiff, and after defendant, upon demand, failed to produce the originals. They were within 'The Uniform Business Records as Evidence Law.' The work sheets, showing the destination and starting point of certain trucks in Voyles v. Columbia Terminals Co., Mo.App., 239 S.W.2d 559, 562...