King v. Furry, 29979

• Court: Missouri Court of Appeals
• Writing for the Court: JOHN K. REGAN; RUDDY, P. J., and ANDERSON
• Citation: King v. Furry, 317 S.W.2d 690 (Mo. App. 1958)
• Decision Date: 05 November 1958
• Docket Number: No. 29979,29979
• Parties: Allen R. KING (Plaintiff), Respondent, v. Calvin FURRY, A. J. Babcock and E. E. Williams, doing business as Farmington Auction Company (Defendants), Appellants.

Page 690

317 S.W.2d 690

Allen R. KING (Plaintiff), Respondent, v. Calvin FURRY, A. J. Babcock and E. E. Williams, doing business as Farmington Auction Company (Defendants), Appellants.

No. 29979.

St. Louis Court of Appeals, Missouri.

Nov. 5, 1958.

Motion for Rehearing or to Transfer to Supreme Court Denied

Dec. 8, 1958.

J. O. Swink, Farmington, for appellants.

Roberts & Roberts, J. Richard Roberts, Farmington, for respondent.

JOHN K. REGAN, Special Judge.

This is an action for property damage caused by a collision between respondent's (plaintiff's) Pontiac automobile, driven by him, and two cattle, owned by one of the appellants (defendants), which had strayed onto the public highway from an enclosure owned by the appellants, and involves the 'Stock Law' of Missouri, relative to restraining domestic animals from running at large. The verdict of the jury was in favor of respondent in the sum of $521.70. For convenience, the parties hereafter will be referred to in the capacities in which they appeared in the trial court.

Plaintiff's petition was in two counts, the first count alleging violation of the 'Stock Law', section 270.010 RSMo 1949, V.A.M.S.; the second count being based on common-law negligence. The latter count was abandoned by plaintiff at the trial, since the cause was submitted to the jury only on violation of the 'Stock Law.' The answer was a general denial and a plea of contributory negligence.

The evidence revealed that on August 16, 1956, about midnight, plaintiff was driving his 1954 Pontiac coupe south on Highway No. 67 at a speed of around 50 to 60 miles per hour. As plaintiff topped a hill there were two cattle standing in the road and his car collided with the cattle, damaging the entire front end of his automobile. The automobile was not in condition to be driven after the collision. The car was towed to the Swisher Chevrolet Company in Fredricktown, Missouri, where it was repaired at a cost of $491.70, plus a $30 towing charge.

Plaintiff testified that he first saw the cattle when he was about 20 yards from them; them he applied his brakes but was not able to stop before hitting the cattle; that one of the cattle was in the southbound lane of the highway and the other about 2 or 3 feet in the northbound lane; that he was unable to avoid hitting the cattle by going onto the shoulder because of a light pole in the vicinity. Plaintiff stated he swerved slightly to the left in an attempt to avoid one cow, and thereby struck both--there not being sufficient space between the cattle to permit the passage of an automobile. The cattle were headed west across the highway and turned their heads toward plaintiff's car. The head of each cow was struck by a headlight of the car.

Plaintiff's pleadings alleged that at all times pertinent to the issues the defendants owned and operated a sales barn and stock pens located on Highway No. 67 north of Farmington, Missouri. Further, plaintiff alleged that cattle belonging to the defendants and others were kept by defendants in said barn and pens. In their answer, the defendants admit both of these allegations.

The evidence adduced by the defendants demonstrated that a load of cattle had been delivered to the barn about 7:00 P.M. on August 16, 1956, and that these cattle were run through the barn and into the south stock pen. Defendant E. E. Williams testified that the cattle belonged to him, and not to the other defendants. He further testified that the other defendants were his partners in the operation of the Auction Barn. By Williams' testimony the defense showed that after the cattle were in the south stock pen Williams had examined the only two gates to the pen and they were secure. After counting the cattle Williams went to his home where he received a telephone call about 12:30 a. m. informing him that his cattle were loose on the highway.

When defendant Williams arrived at the barn after the accident he found the east gate of the south stock pen open, this being one of the gates previously checked by him. Williams testified that there were 40 or 45 head of cattle in the lot, all of which apparently strayed onto the highway, but only the two struck by plaintiff were involved in any collision with autos on the highway. Williams further testified that the first and only notice he had of the cattle being on the highway was after the collision occurred. There was other testimony that there had been no previous complaints of defendants' cattle being at large on the highway.

The defendants contend that the trial court erred in admitting into evidence plaintiff's exhibit No. 1, which is the repair bill from Swisher Chevrolet Company, citing section 490.680 RSMo 1949, V.A.M.S., and Ensminger v. Stout, Mo.App., 287 S.W.2d 400.

The record reveals that plaintiff's exhibit No. 1 was admitted over the objection of the defendants. The defendants objected to the admission of the exhibit on the grounds that it was self-serving, a conclusion, a memorandum which witness Smith had used to refresh his memory, and that it contained facts and figures which the witness had not identified. The court overruled the objection and permitted plaintiff's counsel to show the exhibit to the jury. Defendants' counsel objected to the action of the court in permitting plaintiff's counsel to pass the exhibit to the jury for all the reasons previously set forth, and for the further reason that it had not been shown that the witness Smith had prepared the exhibit or had any knowledge of it whatsoever. This objection was likewise overruled.

An examination of the record shows that exhibit No. 1 was marked for identification immediately after John Joseph Smith, the service manager of the Swisher Chevrolet Company, had testified about the damage to plaintiff's Pontiac car and the work and parts necessary to repair it. This witness further testified that he examined the Pontiac before the work of repair was started, at which time he determined what parts were necessary for the repair job as well as all of the work which had to be done in order to complete the job. Smith also said he supervised the work on the car, and assembled the necessary parts which were used in repairing the Pontiac. He held the repair bill in his hand and testified from it in relation to the date the repairs were made. Smith then testified, without objection, that the whole bill for material and labor was $491.70; and that this was a reasonable price for both labor and material.

On cross-examination defendants' counsel asked Mr. Smith if he hadn't loaded the bill a little, and Smith replied negatively. Smith was also asked about the Prestone that was placed in plaintiff's car, which fact had not been adduced on direct examination. The only other work which had been noted on exhibit No. 1, which had not been referred to in the testimony, was repainting the left side of the car, which was also brought out on cross-examination.

The evidence clearly showed that witness Smith was thoroughly familiar with the damage to plaintiff's car, having examined it in its damaged condition. Further, all parts needed for the repair of the car were assembled by Smith and installed under his supervision, so he was particularly qualified to testify as to the nature and extent of the damage as well as the reasonableness of the charge. However, exhibit No. 1 was not identified while Smith was on the stand other than by his comment that he had the repair bill and, testifying from the bill, the date the repairs were started. Nevertheless, as soon as Smith was excused from the witness stand plaintiff sought to introduce the repair bill over defendants' strenuous objection. An examination of exhibit No. 1 reveals that it contains a list of parts exactly as testified to by Smith, as well as painting done and Prestone replaced, as developed by defendants' cross-examination.

It is the Court's opinion that no error was committed in the admission of plaintiff's exhibit No. 1, which was a memorandum of which the witness had complete personal knowledge. See Smith v. Ray M. Dilschneider, Inc., Mo.Sup., 283 S.W.2d 631; and Mann v. Stewart Sand Co., 211 Mo.App. 256, 243 S.W. 406, loc. cit. 408; also 25 C.J.S. Damages Sec. 157, page 808.

The next assignment of error made by defendants is the court's action in permitting plaintiff to read the Missouri Stock Law to the jury. As authority for their position, defendants cite section 510.300 RSMo 1949, V.A.M.S.; McPeak v. Missouri Pacific R. Co., 128 Mo. 617, loc. cit. 644, 30 S.W. 170; State ex rel. Witte Hardware Co. v. McElhinney, 231 Mo.App. 860, 100 S.W.2d 36.

At the trial and in his brief counsel for defendants raised the point that it was the court's function to declare the law to the jury in written instructions at the close of the case. However, after the jury was sworn, plaintiff's counsel elicited an admission from defense counsel that the Stock Law was in full force and effect in St. Francois County, including the area in which the Farmington Auction Barn was located. The announced purpose of obtaining that admission at that time was for use in the opening statement. Although the opening statement has not been made part of the record, we can assume that the Stock Law was alluded to at that time by plaintiff without objection.

In Instruction No. 1 given by the court the Missouri Stock Law was fully covered, so that the only complaint that defendants have is the evidentiary advantage, if any, plaintiff obtained by reading the statute to the jury.

The Supreme Court of Missouri, in the case of Merrick v. Bridgeways, Inc., 362 Mo. 476, 241 S.W.2d 1015, 1019, said: 'The practice of reading statutes to the jury is not to be commended, Hollenbeck v. Missouri Pac. R. Co., [141 Mo. 97, 38 S.W. 723, 41 S.W. 887]; Lewis v. Barnes [Mo.Sup., 220 S.W. 487]; nevertheless, in the absence of a plain demonstration of abuse of discretion and prejudicial effect, it has not been held to be...