Kirkpatrick v. Wells

• Decision Date: 11 April 1928
• Docket Number: No. 26715.,26715.
• Citation: 6 S.W.2d 591
• Parties: MELBA KIRKPATRICK and GEORGE L. KIRKPATRICK, Infants, By ELLA H. KIRKPATRICK, Their Next Friend, Appellants, v. ROLLA WELLS, Receiver of United Railways Company of St. Louis.
• Court: Missouri Supreme Court

6 S.W.2d 591

MELBA KIRKPATRICK and GEORGE L. KIRKPATRICK, Infants, By ELLA H. KIRKPATRICK, Their Next Friend, Appellants, v. ROLLA WELLS, Receiver of United Railways Company of St. Louis.

No. 26715.

Supreme Court of Missouri, Division One.

April 11, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. George E. Mix, Judge.

REVERSED AND REMANDED.

Geers & Geers and Earl M. Pirkey for appellants.

(1) An arrest or an indictment cannot be shown for the purpose of effecting the credibility of a witness and it is reversible error to drag either into the case. Kribs v. United Order of Foresters, 191 Mo. App. 524; State v. Wigger, 196 Mo. 90. Therefore the court erred in permitting defendant's counsel to drag into the case that plaintiffs' witness Dickerhoff had been arrested and in referring to this in argument. (2) It is reversible error for counsel to state in argument something which is not supported by the evidence. Williams v. Columbia Taxicab Co., 241 S.W. 970; Jackman v. Ry. Co., 206 S.W. 244. Therefore the court erred in permitting defendants' counsel to say in argument that plaintiffs' witness, Dickerhoff, had an enmity towards the Police Department and that there was a reason for it. (3) Policeman Dreyer was asked by plaintiffs' counsel if he thought it was proper, when he found a man so sick he could not talk, to go and lay him on the sidewalk on a December night and let him wait there. The court sustained the objection to this question. This was improper for the reason that a wide latitude must be permitted in cross-examination. Edison v. Met. St. Ry. Co., 209 S.W. 577; State v. Decker, 161 Mo. App. 398; Koenig v. Union Depot Railroad Co., 173 Mo. 737; Huss v. Heydt Bakery Co., 210 Mo. 57; Kleckamp v. Lautenschlaeger, 266 S.W. 473; Hendrix v. Corning, 214 S.W. 253; State v. Murray, 292 S.W. 434. (4) The receiver has attempted to confuse this court by saying that the Court of Appeals, in the case of Galli v. Wells, 209 Mo. App. 460, held that this hospital record was admissible. It does nothing of the kind. It held that a city hospital record which was required by law to be kept was admissible as to the things therein required by law to be kept. But in all of the cases cited by the receiver, not in a single one, is there any case which holds that the private record of a private hospital is admissible in evidence. Section 5812 is a section from Article 2 of Chapter 41. That article is on the registration of births and deaths; it prescribes what the certificates of death shall contain and what the certificates of birth shall contain. Section 5812 requires hospitals to keep sufficient data to fill out these two certificates; that is all that is required and the hospital record introduced in evidence over the objection of plaintiffs did not have the data required by law, but it purported to be the personal history of Thomas Kirkpatrick. There was no showing who kept the record, where the information was obtained, or any other fact guaranteeing its accurateness; it was hearsay from start to finish. Moss v. Wells, 249 S.W. 414. There was no showing as to how the entries were made or where the information came from and whether correct or not. Ridenour v. Mines Co., 164 Mo. App. 598.

T.E. Francis and W.H. Woodward for respondent.

(1) The witness Roy Dickerhoff admitted a conviction for wife abandonment and child abandonment, and it can scarcely be claimed that plaintiff was in any manner injured by asking the same witness if he had ever been arrested, as the conviction would of necessity presuppose an arrest. Secs. 3271, 3274, 5439, R.S. 1919; State v. Boyd, 178 Mo. 2. (2) While it is not proper in the ordinary case to attempt to impeach a witness by showing an arrest, nevertheless, bias on the part of a witness can always be shown, and where the witness is telling a story that amounts to a virtual charge of manslaughter against a police officer, it is proper, as was done here, to ask him if he was not prejudiced against police officers by reason of an arrest, without attempting to go into any charge under which he might have been arrested or any other collateral matter. Magill v. Boatmen's Bank, 250 S.W. 43. (3) The elements of cross-examination for the purpose of showing bias rest in the sound discretion of the trial court, who may take into consideration the attitude of the witness, his manner and apparent feeling, and his ruling will not be disturbed except for a judicial abuse of that discretion. Jones v. Ry. Co., 253 S.W. 737; Kleckamp v. Lautenschlaeger, 266 S.W. 470. (4) The hospital record required to be kept by law and shown to come from the proper custodian was admissible. Sec. 5812, R.S. 1919; Galli v. Wells, 209 Mo. App. 460; Simpson v. Wells, 292 Mo. 301; Leonard v. Boston Ry. Co., 234 Mass. 480; Riebas v. Revere Rubber Co., 37 R.I. 189; Priddy v. Boice, 201 Mo. 336; St. Louis Gas Light Co. v. City, 86 Mo. 495; Greenleaf on Evidence (16 Ed.) sec. 483.

GANTT, J.

Action by plaintiffs, through their next friend, for the death of their father, which occurred December 20, 1922. On the day in question he boarded a street car and sat in the circular seat on the platform. After riding some distance, apparently asleep, the conductor and motorman attempted to arouse him, and, being unable to do so, called a police officer.

The evidence for plaintiffs tend to show the conductor, motorman and police officer dragged the deceased from the car to the sidewalk, where he remained until the arrival of a patrol wagon to take him to a hospital. Before the wagon arrived he died.

The evidence for defendant tends to show that he was not dragged, but was carried from the car to the sidewalk, and such care taken of him as was possible.

It is the contention of plaintiffs that deceased died as a result of injuries received at the hands of the employees of defendant, and it is the contention of defendant that he died from natural causes.

The charge of negligence is as follows:

"That on December 20, 1922, said Thomas K. Kirkpatrick took passage as a passenger on defendant's Cass Street car and thereafter on said day while he was still on said car and was a passenger thereon and while said car was on St. Louis Avenue at or near Marcus Avenue, all in the city of St. Louis, Missouri, defendant's conductor and motorman in charge of said car did negligently shake, jerk, shove and move said Thomas P. Kirkpatrick in said car and out of said car and against said car and parts thereof and affixed thereto and the street and sidewalk including the curb thereof whereby he received injuries from which he died on December 20, 1922, in the city of St. Louis, Missouri."

The answer admitted the appointment of defendant as receiver of the United Railways Company, and denied generally the allegations of the petition. Judgment was for defendant, and plaintiffs appealed.

I. Plaintiffs complain of defendant's instruction numbered 2, which is as follows:

"If you find and believe from the evidence that the death of Thomas Kirkpatrick was solely caused by disease, regardless of what disease it may have been, and that it was in no way connected with or produced by any act of the Death Caused motorman or conductor of the street car, then you Solely by are instructed that your verdict must be for Disease. defendant." Plaintiffs argue that conceding deceased was afflicted with nephritis, the injury may have caused an acute attack thereof which directly caused his death. It is insisted that under the instruction if he died of nephritis the plaintiffs could not recover.

The instruction is not subject to the criticism, for the reason it required the jury to find death was caused solely by disease and was not the result of any act of defendant. The contention is overruled.

II. Plaintiffs complain of instruction numbered 3, which is as follows:

"You are instructed that the defendant was not responsible for any act of the police officer, which you may find and Police believe from the evidence was done wholly in his Officer. capacity as a police officer of the city of St. Louis, and not at the direction of the defendant."

The charge of negligence is as follows:

"Defendant's conductor and motorman in charge of said car did negligently shake, jerk, shove and move said Thomas P. Kirkpatrick in said car and out of said car and against said car and parts thereof and affixed thereto and the street and sidewalk, including the curb thereof."

Under the issues the instruction was proper, and the contention is overruled.

III. Plaintiff contends the court was in error in sustaining an objection to the following question, asked by Opinion of plaintiffs' counsel on cross-examination of Policeman. defendant's witness, Policeman Dreyer:

"So you thought it was proper when you find a man so sick he could not talk to go and lay him over on the sidewalk, on a December night?"

The action is for negligence of the motorman and conductor. The thoughts of the policeman were immaterial to any issue in the case. The contention is overruled.

IV. Plaintiffs contend the court should not have admitted in evidence the record of St. John's Hospital purporting to show the disease with which Kirkpatrick was afflicted when confined therein, for the reason that said hospital is not a Hospital public institution, there is no rule of law...