Kersten v. Hines

• Decision Date: 12 July 1920
• Citation: 223 S.W. 586,283 Mo. 623
• Parties: STEPHEN KERSTEN, by JACOB KERSTEN, His Next Friend, Appellant, v. WALKER D. HINES, Director General of Railroads Under United States Railroad Administration
• Court: Missouri Supreme Court

223 S.W. 586

283 Mo. 623

STEPHEN KERSTEN, by JACOB KERSTEN, His Next Friend, Appellant, v. WALKER D. HINES, Director General of Railroads Under United States Railroad Administration

Supreme Court of Missouri

July 12, 1920

Appeal from St. Louis City Circuit Court. -- Hon. J. Hugo Grimm Judge.

Reversed and remanded (with directions).

Sidney T. Able and Charles P. Noell for appellant.

(1) The trial court erred in setting aside the verdict of the jury and granting the respondent a new trial herein. A party offering in evidence what it claims is a memorandum in the handwriting of a witness without first having given the witness an opportunity to explain the memorandum or to testify as to its genuineness is not entitled to have such claimed memorandum go before the jury. Such party cannot complain if the opposing party offers to withdraw his objections to such evidence if such party fulfills some condition required by the opposing party (in this case the submission of the paper to some handwriting expert), and where the opposing party finally withdraws objection to the paper and permits it to go in evidence, such party cannot close the mouth of the opposing party and thereby require him to admit the genuineness of a written memorandum when such opposing party has access to other evidence in the case which contains the handwriting of the same witness (in this case the signature of Officer Coyle appears on the deposition in file in the case). Such opposing party would undoubtedly have the right to have compared such writings, that is, the claimed handwriting of Coyle on the memorandum claimed to have been made by him with his known genuine signature which appeared on the deposition. Harrison v. Lakeman, 189 Mo. 581, 607. (2) After making a formal stipulation in open court the respondent cannot on appeal complain of the action of the trial court for thereafter during such trial ruling in accordance with this stipulation. State v. Keithley, 204 S.W. 24; Pratt v. Conway, 148 Mo. 291; Moling v. Barnard, 65 Mo.App. 600; Mitchell v Brown, 190 S.W. 354. (3) Respondent cannot preserve for review abandoned pleadings. (4) Respondent cannot be heard to say that he is not in court, or that the court erred in ruling in such a way as to allow any judgment rendered for plaintiff to go against him, after coming into court at his own instance after filing an answer to the merits and after having stipulated that the judgment, if any, for plaintiff should be against him. Kepley v. Railroad, 200 S.W 756; Newcomb v. Railroad, 182 Mo. 707; Thomasson v. Ins. Co., 217 Mo. 485.

James F. Green and H. H. Larimore for respondent.

(1) The trial court was in error in permitting the plaintiff, after he had alleged in his petition that the cause of action accrued by reason of the operation of the Missouri Pacific Railroad by Walker D. Hines, Director General, had introduced testimony in support of such allegation and closed his case upon that theory, to amend his petition by striking out all reference to the Missouri Pacific Railroad or any other railroad, and go to the jury upon the bare allegation that the train in question was being operated by the Director General. Sec. 10, Act of Congress of March 21, 1918; Rutherford v. Railroad, 254 F. 880; Dodson v. Scroggs, 47 Mo. 285; Headlee v. Cloud, 51 Mo. 301; Winslow v. O'Pry, 56 Ga. 138; Watson v. Collins, 37 Ala. 587; Daniel v. Hollingshead, 16 Ga. 190; Hamilton v. Ewing, 6 Blackf. 88; 39 Cyc. 653. (2) Also the action of the court in permitting the plaintiff after his case was closed, to make the amendment above referred to resulted in a situation where the plaintiff sued upon one alleged cause of action, introduced testimony in support thereof and then went to the jury upon another and entirely different cause of action; because of this the motion for new trial should have been sustained. Peters v. Carroll, 153 Mo.App. 375; Waldhier v. Railroad, 71 Mo. 514; Henry County v. Citizens' Bank, 208 Mo. 209; Chitty v. Ry., 148 Mo. 64; Jordan v. Railroad, 105 Mo.App. 446. (3) The conduct of counsel for plaintiff, both at the time the statement of Coyle was introduced in evidence with the consent of such counsel and in his closing argument wherein he continuously misstated the law and the facts with reference to such statement, was such as to justify, and in fact compel the court in the interest of justice, to grant to defendant a new trial. Third Ave. Ry. Co. v. Mills, 249 F. 661; Jackman v. Ry. Co., 206 S.W. 244. (4) Motion for new trial because of misconduct of counsel in the presence of the jury is addressed largely to the judicial discretion of the court. State ex rel. v. Ellison, 256 Mo. 662; Stetzler v. Met. St. Ry. Co., 210 Mo. 704; Warnke v. Rope Co., 178 S.W. 76.

BLAIR, J. Woodson, J., absent.

OPINION

In Banc

BLAIR J. --

This is an appeal from an order granting a new trial in an action for injuries to Stephen Kersten, a minor. The injury occurred February 1, 1918, and the action was begun May 17, 1918. The trial occurred in 1919. The boy lost both legs and was otherwise injured. The motion for new trial was sustained on the ground that certain remarks of counsel during the trial constituted error. The facts in connection with the several questions discussed are subsequently stated.

I. The motion for new trial was sustained "because of the action of counsel for plaintiff in making statements on the trial in the presence and hearing of the jury intimating emphatically that the report made by Officer Coyle, introduced in evidence, and the signature thereof were not genuine."

In order that this ruling may be understood it is necessary to set out the facts which gave rise to it. Coyle's deposition had been taken by respondent on August 10, 1918, at the Marine Barracks, near Paoli, Pennsylvania. In that deposition Coyle testified that on February 1, 1918, the date appellant was injured, he was a member of the St. Louis Police Force, assigned to the Fifth District; that about 4:30 p. m. on February 1, 1918, he arrived with the ambulance at the watchman's shanty at the corner of Main and Brooklyn streets in St. Louis and there saw appellant for the first time; that he placed appellant in the ambulance and conveyed him to the city hospital. "Q. Did he make any statement while in the ambulance or at the hospital? A. He did not, for his head had been crushed, his ankle was crushed also and he was suffering from numerous bruises and abrasions of the head and body. Q. What was his condition with respect to consciousness? A. Unconscious." Coyle testified his duty was to secure all the witnesses possible; that he attempted to do so, but was unable to find anyone who had seen the accident; that he had no personal knowledge; was at the police station when the accident occurred. "Q. Did the boy at any time make any statement? A. No, he made no statement whatever. Q. Mr. Coyle, you made a complete report to your captain? A. I did; which was copied by the clerk at the Fifth District Police Station, which is on record at that station. This report consists of a statement of facts in a general way. Q. This report is on file at Fifth District, is it? A. It should be on file. Q. Does this report set out correctly what you know about the case? (Objected to by appellant's counsel.) A. To the best of my knowledge and belief it does."

On cross-examination Mr. Coyle said the report was made out by the police clerk at the station from notes made by him -- Coyle. On the trial this deposition was offered and read in evidence by appellant's counsel.

Respondent's counsel called a police officer to prove the signature of Coyle to a written statement respondent desired to put in evidence. The following then occurred:

"Q. I will ask you to look at that paper that I hand you and examine it and let me know in whose handwriting it is and whose signature it is on there. (Handing paper to witness.)

"Mr. Able: I wish to object to that, as I don't see how it is relevant in this case in any way, as to whether that is Mr. Coyle's signature on there. An affidavit has been filed as to what Mr. Coyle would say if he were here, which the defendants no doubt will read, and this deposition has been taken. He is not here to say whether that is his handwriting or not, and we do not know whether it is his handwriting or not, and I can't see how that could be material in this case.

"Mr. Hezel: They read the deposition this morning of officer Coyle, in which he said this boy hadn't said anything, and we have a right to impeach that testimony in any proper manner, irrespective of the affidavit, I mean, and the statement that it was conceded yesterday he would make if he was here.

"The Court: You read it.

Mr. Able: I did, but Mr. Coyle should be faced with that very report and asked. That deposition was taken by these defendants. If they wanted to question him about it, why come up here when he has no chance and we haven't any chance to question Mr. Coyle about a paper we don't know anything about, and offer it in evidence in this way?

"Mr Hezel: The statement says he made a report; his deposition shows it.

"The Court: The officer may testify to the signature and I will pass on the competency when it is offered.

"To which action and ruling of the court plaintiff by his counsel then and there duly excepted and still excepts.

"A. This is officer John Francis Coyle's signature.

"Mr. Hezel: Q. All in his handwriting? A. Yes, sir. I assigned him to this case myself.

"Q. Where has this paper been since? A. Filed in our record room.

"Q. In your record room at the Fifth District? A. Yes, sir.

"Q. And did you get it from there? A. Yes, sir.

"Mr Hezel: Please mark that Defendant's Exhibit F. (Said paper was marked for...