Johnson v. Minihan

• Decision Date: 10 March 1947
• Docket Number: 39809
• Parties: Carl E. Johnson, Appellant, v. C. M. Minihan and C. M. Johnson, Co-Partners doing business as Norwood Transfer and Storage Company
• Court: Missouri Supreme Court

200 S.W.2d 334

355 Mo. 1208

Carl E. Johnson, Appellant, v. C. M. Minihan and C. M. Johnson, Co-Partners doing business as Norwood Transfer and Storage Company

No. 39809

Supreme Court of Missouri

March 10, 1947

Appeal from Circuit Court of City of St. Louis; Hon. James F Nangle, Judge.

Reversed and remanded.

Jesse E. Bishop for appellant.

(1) A witness, on redirect examination, to rebut the discrediting effect of damaging statements or admissions elicited from him on cross-examination, may explain fully all of the circumstances in connection with such statement or admission. City of St. Louis v. Worthington, 331 Mo. 132, 52 S.W.2d 1003; Larkin v. Wells, 12 S.W.2d 511; Pfiffner v. Kroger Grocery Co., 140 S.W.2d 79; Wiener v. Mutual Life Ins. Co., 352 Mo. 673, 179 S.W.2d 39; Couch v. St. Louis Pub. Serv. Co., 173 S.W.2d 617; Brendel v. Union Electric, 252 S.W. 635. (2) Evidence admissible for one purpose cannot be excluded as inadmissible for another purpose. City of St. Louis v Worthington, 331 Mo. 132, 52 S.W.2d 1003; Ferril v Kansas City Life Ins. Co., 345 Mo. 777, 137 S.W.2d 577; State ex rel. Public Serv. Co. v. Shain, 345 Mo. 543, 134 S.W.2d 58; Thompson v. City of Lamar, 322 Mo. 514, 17 S.W.2d 960. (3) The exclusion of proper evidence is presumed to be prejudicial, unless the contrary be shown. Reed v. Reed, 101 Mo.App. 176, 70 S.W. 505.

Moser, Marsalek, Dearing & Carpenter, Will B. Dearing and Lee M. Carter for respondents.

(1) The trial court cannot be convicted of error in refusing to permit plaintiff to develop by the witness Smith that defendants had effected a settlement with this witness, because: The disclosure of settlement to the jury would not have explained the discrepancy between the witness' testimony and the contents of the statement which he signed, for the reason that the witness denied having made the disputed declarations. (2) The object and purpose of attempting to develop the settlement was to establish an admission of liability by the defendants. (3) The ruling on the admission of such testimony was within the sound discretion of the trial court. Daudt v. Steibert, 205 S.W. 222; Hungate v. Hudson, 185 S.W.2d 646, 353 Mo. 944; Stillwell v. Patton, 108 Mo. 352; State ex rel. State Highway Comm. v. Bengal, 124 S.W.2d 687; 3 Jones on Evidence (4 Ed.), pp. 1618, 1619; Wider v. People, 278 P. 594, 65 A.L.R. 1261.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action for $ 25,000 for personal injuries sustained in a motor vehicle collision alleged to have been caused by defendants' negligence. Verdict and judgment were for defendants and plaintiff has appealed.

Error is assigned on the trial court's refusal to permit plaintiff's witness, Herman Smith, to explain on re-direct examination the circumstances under which defendants had obtained his signature to an exhibit which they used in cross-examination to impeach and discredit the testimony he had given on direct examination.

The collision occurred on the night of July 22, 1940, near Thurman's place on U.S. Highway 66, one-half mile east of St. Clair, Missouri. Smith was the owner of a 1929 Nash automobile and he was operating it when it collided, head on, with a 1936 Ford tractor and cattle trailer operated on behalf of defendants. Plaintiff, a guest in the rear seat of the Nash automobile, received severe and permanent injuries.

On direct examination, Smith testified that he resided with his wife and daughter in St. Clair. He was employed at Union (nine miles away) and had worked the day the collision occurred. He returned to his home about 6:30 p.m. and, after supper, his brother-in-law, Louis Ziegler, came to the house. They had two bottles of beer each about 8 p.m. Ziegler asked to be taken to Richwoods (eighteen miles away) to see a young lady and Smith took him out there, but the girl was not at home. Smith and Ziegler each had a bottle of beer at a tavern near Richwoods, then they returned to St. Clair, and later, went to Thurman's place for a sandwich and soda. About 10:30 p.m. they went to a filling station in St. Clair where plaintiff was employed. Later, plaintiff suggested he was hungry and asked Smith to drive him out to Thurman's place and Smith did so. When they arrived, Thurman's place was closed. Smith drove in at the west end of a half circle driveway on the south side of the highway, crossed to the far (east) end of the drive, stopped about 3 feet back from the slab, looked both ways, saw nothing, went to low gear, then to second and to high, came out on the pavement, crossed to the far (north) side of the highway and headed back to St. Clair on the (north) right hand side of the highway, and within 30 yards the collision occurred. Smith did not see the approaching truck until it was very close to him, about 40 feet away. It was partly over the black line traveling pretty fast, something like 25 miles per hour, and it hit the automobile head on.

On cross-examination, a two page exhibit was presented to the witness. He identified his signature at the bottom of each page and admitted that he had signed the exhibit on the day after the collision. He admitted having made some of the statements contained therein, but denied having made others. He said that the document was not in his handwriting; that it was written by a person representing the truck company; that only part of the statement was read to him before he signed it; and that a part of it was not read to him. He denied having made the following statements, appearing over his signature in the exhibit, and said they were not read to him. "On Monday night between one and two o'clock (Tuesday morning) I was driving my 1930 Nash and was involved in an accident. I was not intoxicated but I had been hauling Louis Ziegler around with me and we had had a few drinks at various places. . . . We picked up 'Pig' Johnson (plaintiff) who was pretty drunk. . . We had two beers at the saloon on Main Street in St. Clair before we picked up Johnson. . . when we got there (Thurman's) it was closed. . . And when I pulled out of the drive of the tavern about 1 1/2 east of St. Clair I was struck by a Norwood truck that went into the ditch on the north or its left side of the road and burned up. . . I do not think the driver of the truck could see me as my headlights were dim and the front of my car was facing the north side of the slab assuming the road runs east and west. Altho I had consumed a number of drinks during the evening I could still see pretty good. . . Ziegler and Johnson had passed out as a result of drinking. . . There were no independent eye witnesses since there was no other traffic on the road at the time of the accident which was the reason I didn't stop before coming back on the slab."

On re-direct examination, when plaintiff's counsel advised the court that he was going to ask the witness what else he signed at the time and what the circumstances were under which he signed this document without reading it, defendant's counsel objected. Out of the presence and hearing of the jury, the witness said that, on the day after the collision, an attorney for the trucking company, with two other men, came to his house and took him out to the scene of the collision. In explaining how he happened to sign the document, the witness testified that the attorney said "he wanted to make a settlement with me . . . and he had to have a paper to show that he had made a settlement, and he wrote it down and read it to me and I signed it and he gave me a check for the damage to the automobile. . . He told me I had to sign that before he give me my check for settlement. . . He said I had to sign that so that he had a receipt to show he made settlement with me, to take back with him." The witness did not receive a copy of the statement. On inquiry by the court, the witness said he was paid $ 150 for the settlement, not for making the statement. The evidence heard was objected to on the ground that it threw "no light upon this statement," "did not explain the statements which witness said he never made" and the offering was an attempt to show "liability or a confession of liability by settling." The objection was sustained and the further re-direct examination of the witness limited to stating that he quit school at the fifth grade; that he didn't write the statement; that he didn't read it; that only a part of it was read to him; that he told the attorney about the collision and how it happened; and that he was asked to sign the statement and did sign it. His reasons for signing the document and the other circumstances attending the signing of it, as above stated, were excluded.

In view of the issue presented, it will be necessary to state only a few additional facts. Plaintiff and Ziegler corroborated Smith's testimony and said the automobile was going west on the north side of the highway and the truck was traveling on the "wrong side of the road." Defendants' truck driver said he was traveling down hill on his side of the road at about 30 miles per hour; that the automobile was slowly entering the highway from the south about 100 feet in front of the truck; and that the automobile got only half way across the south half of the slab. The truck driver turned to the left to avoid a collision, but the automobile hit the right fender of the truck and put it in the ditch on the north (left) side of the road. Plaintiff submitted the cause on defendant's negligence in failing to turn the motor truck to the right of the center of the highway so that the automobile could pass without interference and defendants submitted the issue on Smith's negligence, as the sole cause, in driving upon the highway in such close proximity to the approaching truck that the driver could not avoid...