Hungate v. Hudson

• Decision Date: 05 February 1945
• Docket Number: 39092
• Parties: Earl Hungate, Appellant, v. Finis B. Hudson, Doing Business as F. B. Hudson Moving Company
• Court: Missouri Supreme Court

185 S.W.2d 646

353 Mo. 944

Earl Hungate, Appellant, v. Finis B. Hudson, Doing Business as F. B. Hudson Moving Company

No. 39092

Supreme Court of Missouri

February 5, 1945

Rehearing Denied March 5, 1945.

Appeal from Circuit Court of City of St. Louis; Hon. Joseph J Ward, Judge.

Reversed and remanded.

Everett Hullverson for appellant; Orville Richardson of counsel.

The court erred in permitting the defendant in cross-examination of the plaintiff to inquire if he knew a good many lawyers in Illinois, whether he had consulted them, if he could not have sued in Illinois, obtaining service under the Illinois Nonresident Motorists Act, and why he didn't sue in Illinois "where you live and where they know you." These questions coming at the first of the trial with the full approval of the court were coldly and deliberately designed to prejudice the jury against a nonresident and to imply that plaintiff was reluctant to sue where he was known. Being so designed by defendant and approved as material and proper by the court, these questions must be considered as having accomplished the result intended, prejudice to the plaintiff's case. 78 A.L.R. 1456, 1485, 1491, 1499; 65 C.J. 277; Fathman v. Tumilty, 34 Mo.App. 236; Busse v. Wentworth, 302 Mo. 672, 259 S.W. 458. In reply to respondent: Holden v. Berberich, 351 Mo 995, 174 S.W.2d 791; Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761; Dodd v. M.-K.-T. Ry. Co., 184 S.W.2d 454.

Wilbur C. Schwartz for respondent.

(1) It was not error for the trial court to permit defendant's counsel to interrogate plaintiff as to why he did not bring his suit in Illinois. It was proper cross-examination and had a bearing on plaintiff's credibility. (2) Before evidence can be excluded upon the ground that it is irrelevant, it is essential that it appear so beyond doubt. Luechtefeld v. Marglous, 151 S.W.2d 710; 20 Am. Jur., p. 244. (3) The appellate court should not reverse a judgment except for error affecting the result of the trial. (Secs. 973, 1228, R.S. 1939. (4) The admission in evidence of facts entirely immaterial to the issues and without probative force cannot constitute prejudicial or reversible error. Span v. Jackson-Walker Coal & Mining Co., 322 Mo. 158, 16 S.W.2d 190. (5) Where a party objects to the introduction of evidence merely on the ground that it is immaterial, he is limited to that ground on appeal. He cannot urge in the appellate court that it was inadmissible because it tended to inflame and poison the minds of the jury. Span v. Jackson-Walker Coal & Mining Co., 322 Mo. 158, 16 S.W.2d 190; Rockenstein v. Rogers, 326 Mo. 468, 31 S.W.2d 792; Luechtefeld v. Marglous, 151 S.W.2d 713.

Barrett, C. Westhues, C., concurs; Bohling, C., dubitante.

OPINION

BARRETT

In this personal injury action by Earl Hungate against Finis B. Hudson the jury returned a verdict for the defendant. The circumstances upon which the plaintiff relied as demonstrating liability were that he stopped his 1935 Chevrolet coupe upon the highway while a freight train passed over the intersecting crossing. His was the third car in a line of traffic, and the plaintiff and his witnesses claimed that while he was yet stopped upon the highway the defendant's truck, without warning and at a speed of about forty miles an hour, crashed into the rear of his coupe and knocked it sixty or seventy feet across the double tracks. According to the defendant the circumstances of the occurrence were that the truck driver saw the cars stopped at the crossing when the truck was a quarter of a mile away and began slackening the speed of the truck and came to a stop just behind the plaintiff's car. As the plaintiff moved forward and the defendant's truck was proceeding slowly behind him the plaintiff suddenly and without warning stopped his automobile in such close proximity to the truck that it was impossible to avoid a collision, which was of but slight impact and caused but little damage.

The plaintiff, Hungate, was sixty-five years old and had resided in Mt. Vernon, Illinois, for forty-five years. He was or had been a United States Deputy Marshal and for three years had been employed as a salesman by the L.B. Price Mercantile Company. He worked out of the Marion, Illinois, branch of the company and on the date of this occurrence, on U.S. Highway 50 near Shattuc, Illinois, was engaged in his employment. The defendant, Hudson, was engaged in the storage and moving business. His office was located in Overland, Missouri. He had twelve trucks and fifteen or twenty employees. The truck involved in this collision was driven by Ed Kreysar and was returning home after having delivered furniture in Indianapolis and Louisville. Hungate v. Hudson (Mo.), 169 S.W.2d 682.

It is urged, upon this appeal by the plaintiff, that the trial court permitted defendant's counsel to improperly cross-examine him and because of the prejudicial effect of the cross-examination he is entitled to a new trial. It is contended by the defendant that under the plaintiff's general objection of immateriality he is limited on this appeal solely to the ground stated and that the admission of wholly irrelevant or immaterial evidence cannot constitute reversible error. It is also contended that the cross-examination was proper and relevant because it bore upon the plaintiff's credibility.

The cross-examination complained of, particularly the underscored sentences, is the following:

"Q. You have had experience with a lot of lawyers, then, haven't you? A. I have been around a lot of lawyers, yes.

"Q. Been around the courts over there when cases were tried? A. Yes, I have been around some of them.

"Q. Your father, I believe, was connected with a very prominent lawyer over there, wasn't he? A. Yes, he was.

"Q. You know this law business fairly well, from a layman's standpoint? A. I never had any experience in the law business myself, but I have been around places --

"Q. Been around? A. Yes.

"Q. You could have brought this suit over in Illinois, couldn't you?

"By Mr. Hullverson: I object to that, if the Court please, there is no duty on him to bring a suit in Illinois.

"By Mr. Schwartz: That is not the question.

"By Mr. Hullverson: And it is absolutely immaterial.

"By the Court: It is cross-examination, he may answer.

"By Mr. Schwartz: Go ahead.

"By the Court: He can answer yes or no.

"To which ruling of the Court the plaintiff, by his counsel, then and there duly excepted and still continues to except.

"A. I guess I could.

"Q. They have got a statute over there that you send a petition or pleadings to the Secretary of State and he mails them over to Missouri, or wherever it might be.

"By Mr. Hullverson: I object to counsel testifying.

"By the Court: Objection sustained.

"By Mr. Hullverson: I move the jury be instructed to disregard it.

"By the Court: Gentlemen of the Jury, you are instructed to disregard that.

"By Mr. Schwartz: I know the Court takes judicial notice of the Illinois statutes. Do I have to produce the statutes?

"By Mr. Hullverson: I object to the whole things as immaterial.

"By the Court: Objection sustained as to what the statute is.

"Q. Since you could have brought the suit over there, why didn't you bring it over there among your friends, where you live, and where they know you?

"By Mr. Hullverson: I object to that as absolutely immaterial.

"By the Court: It is cross-examination. The witness may answer.

"To which ruling of the Court the plaintiff, by his counsel, then and there duly excepted and still continues to except.

"Q. Mr. Hungate, since you could have brought the suit over there, why didn't you bring it over in Carlyle or Mount Vernon, where you live?

"By Mr. Hullverson: I object to the question for the further reason there is no evidence he could have brought the suit over there.

"A. I was in the hospital. When I got out of the hospital I came over here.

"Q. You stayed over here after you got out of the hospital? A. After I got out of the hospital I was sent over here.

"Q. You were sent over here and stayed over here most of the time? A. Most of the time, yes.

"Q. Do you know a good many lawyers over there. Did you consult any lawyer in Illinois? A. No, sir.

"Q. Never talked to anyone there? A. No, sir.

"Q. You know a lot of them, don't you? A. I know quite a few lawyers over there, yes."

As the respondent contends, it is generally true that "the admission in evidence of facts entirely immaterial to the issues and without probative force cannot constitute prejudicial or reversible error," especially when the facts evidenced are of such character that they do not have a natural tendency to inflame or arouse hostile passions and their prejudicial effect is not otherwise made to appear. Span v. Jackson-Walker Coal & Mining Co., 322 Mo. 158, 16 S.W.2d 190. "Irrelevant" or "immaterial" evidence is excluded, not because it is unjustly inflammatory or prejudicial, but because its admission has a tendency to draw the jury's attention away from the issues it has been called to resolve. Luechtefeld v Marglous (Mo. App.), 151 S.W.2d 710. And, as a rule, the general objections of irrelevancy and immateriality call for no more action on the part of the court than the assigned objections imply, -- if more is expected or required of the court or there are other reasons the cross-examination is improper or the evidence is inadmissible specific objection must be made for those reasons. Smith v. Fine, 351 Mo. 1179, 1197, 175 S.W.2d 761, 768. But, even though one is bound by his mere general objection of "irrelevancy" or "immateriality" yet in connection with his assignment he may demonstrate the prejudicial effect of the evidence received when it is obviously prejudicial in character. ...