Janis v. Jenkins

• Decision Date: 03 March 1933
• Docket Number: No. 30820.,30820.
• Parties: JANIS v. JENKINS.
• Court: Missouri Supreme Court

58 S.W.2d 298

JANIS v. JENKINS.

No. 30820.

Supreme Court of Missouri, Division No. 2.

March 3, 1933.

Appeal from Circuit Court, St. Louis County; Arthur V. Lashly, Judge.

Action by Madeline Janis against Gordon Jenkins. From an adverse judgment, plaintiff appeals.

Reversed and remanded.

W. J. Blesse and William Kohn, both of St. Louis, for appellant.

COOLEY, Commissioner.

Plaintiff sued defendant for damages for personal injuries sustained by her in an automobile collision. Upon trial to a jury there was a verdict for the defendant, and after an unsuccessful motion for new trial plaintiff has appealed.

Plaintiff, a young woman about twenty-one years of age, was riding with defendant, a young man nineteen years old, in the latter's automobile at the time of the accident. Defendant was driving and was taking Miss Janis to Gingham Inn where she was to meet her fiancé, a Mr. Lee, who worked there. Lee and the defendant were friends. The accident occurred at night. Defendant was driving west on Manchester road in St. Louis county. The road was paved to a width of about eighteen feet. His automobile and one being driven eastward by Raymond Stevens collided "head on," resulting in serious injuries to the plaintiff.

One ground of negligence alleged by plaintiff, and which her evidence tended to prove, was that defendant, in attempting to pass a west-bound automobile which was in front of him, negligently turned to his left, bringing his car onto the south side of the pavement directly in the path of Stevens' car, which was on the south side, its right side, of the pavement, resulting in the collision. Defendant's evidence tended to show that he was not attempting to pass a car, that he was on the north side, his right side, of the pavement, and that the Stevens car turned to its left, that is, onto the north side of the pavement in front of defendant's car, and that the collision occurred on the north side of the pavement instead of, as plaintiff contended, on the south side. The question whether the collision occurred on the north side of the pavement in the line of west-bound traffic, where defendant belonged, or on the south side, in the line of east-bound traffic, was the most hotly contested issue at the trial. The evidence on that question was sharply conflicting and fairly evenly balanced; each party's contention being supported by substantial evidence in addition to the testimony of the respective parties. The only controversy on this appeal grows out of the admission of certain evidence offered by defendant. Respondent has filed no brief in this court.

Lee was called as a witness by plaintiff to prove that he made the arrangement with defendant that evening for plaintiff to ride with defendant from the Windsor Hotel, or apartments, where she was to wait for defendant, to the Gingham Inn; Lee being obliged to go earlier. He testified that he knew nothing about the accident, was not present when it occurred, and did not even hear of it until he returned to his hotel after his night's work at the inn. At that time, as the undisputed evidence shows, plaintiff had been taken to a hospital, and the damaged cars had been removed from the place of the collision. On his direct examination he was not asked and did not attempt to testify anything about the collision or how it had happened. He disclaimed any knowledge concerning it.

On cross-examination questions were propounded to and answered by Lee as follows:

"Q. Don't you remember telling his, Gordon's, brother over the phone that Madeline had told you that it was not Gordon's fault? A. No, I did not; I did not even call him.

"Q. Did you tell him that Gordon was on the right-hand side of the road at the time the accident happened? A. How did I know; how could I know? I wasn't there.

"Q. Did you tell him that at any time? A. No."

Defendant called as his witness his brother, Marshall Jenkins, who testified that a day or so after the accident Lee called by telephone asking for defendant, and he, Marshall, answered. Witness was then asked this question: "Just what was said about this accident?" In the colloquy between counsel for the parties and the court which followed, defendant's counsel stated that the purpose of the testimony sought to be elicited was to impeach Lee. Over plaintiff's timely and sufficient objection, the witness was permitted to answer as follows: "Mr. Lee called and asked to speak to Gordon, my brother, and if I recall correctly he was in bed sick at the time, or possibly had gone to the doctor's — at any rate he could not come to the phone, and he said he just called to tell he had been to the scene of the accident, and that his, Gordon's, car was on the correct side of the road, which was the right side, and that several other people had told him the same thing that were at the accident, rather were at the scene afterwards." (Italics ours.)

Plaintiff's motion to strike out the answer was overruled.

Raymond Stevens, a witness for plaintiff, testified that after the accident he was taken to St. Mary's hospital, and remembered seeing "this gentleman" there, evidently referring to Marshall Jenkins, who was in the courtroom. He further testified, as stated in narrative form in the abstract: "I had no conversation with him. He did not ask me how the accident happened. I did not tell him that there was a car parked on the south side of the road and I was making an effort to pass it."

Marshall Jenkins testified that he went to "the hospital," not stating which hospital, to get his brother, the defendant; that he could not testify that the man he talked with was Stevens, but the man had his leg bandaged. "The man who just testified looks like the man that I talked to but I would not go on record saying that it was he." He testified that he asked that man how the accident happened.

"Q. What did he say to you?"

Over plaintiff's objection the witness was permitted to answer: "He told me he was driving along on the road, and the first thing he noticed was a parked car without a light on it, which he stated was on the driveway, and therefore he swerved to the side to avoid hitting that car, and that is all he knew until the accident happened."

Plaintiff's motion to strike out the answer because no proper foundation for the impeaching testimony had been laid was overruled.

I. The testimony of Marshall Jenkins as to what Lee had told him was erroneously admitted. What Lee may have said, if anything, to Marshall Jenkins about the accident could only have been hearsay, since he had and claimed to have no personal knowledge on the subject, and therefore was incompetent unless for the purpose of impeaching Lee. It did not tend to contradict Lee's answer to the first above quoted question put to him, viz., whether he had told Marshall that Madeline had told him that "it was not Gordon's fault." Marshall did not testify that Lee purported to relate to him anything the plaintiff had said. Clearly, therefore, Lee's answer to that...