Lampe v. United Railways Company of St. Louis

• Decision Date: 04 November 1913
• Citation: 160 S.W. 899,177 Mo.App. 652
• Parties: GEORGE LAMPE, By Next Friend, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Respondent
• Court: Missouri Court of Appeals

160 S.W. 899

177 Mo.App. 652

GEORGE LAMPE, By Next Friend, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Respondent

Court of Appeals of Missouri, St. Louis

November 4, 1913

Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.

REVERSED AND REMANDED.

Earl M Pirkey for appellant.

It is reversible error for the trial judge to refuse the attorney of a litigant permission to see instructions before they have been given. Harding v. Railroad, 232 Mo. 444.

Boyle & Priest, T. E. Francis and Elmer C. Adkins for respondent

A general exception to the instructions of the adverse party is all that is necessary to permit of their review by the appellate court. Harding v. Railroad, 232 Mo. 457.

NORTONI J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

This is a suit for damages accrued to plaintiff through an alleged unlawful assault upon him by defendant's conductor. The finding and judgment were for defendant and plaintiff prosecutes the appeal.

Plaintiff is a minor, aged about seventeen years, and prosecutes the suit by his next friend duly appointed. Defendant is a common carrier of passengers in the city of St. Louis, and as such operates a line of street cars on Broadway. The evidence for plaintiff tends to prove that he boarded one of defendant's cars on Broadway, about seven o'clock in the evening, with the intention to become a passenger thereon. The car was crowded, so that it was impossible for him to enter either within the car or upon the platform. Because of this fact, it is said, he rode with one foot on the step of the rear platform of the car and the other on an iron bar attached thereto, but with his body leaning over the street. Having thus taken his place, the car started forward and ran several blocks before the conductor appeared collecting fares. Plaintiff said he intended to pay his fare to the conductor and had the money to do so, but, upon working his way through the crowd, the conductor immediately assaulted him. According to plaintiff's version and that of several witnesses for him, the conductor struck at plaintiff's head with an iron or steel punch. In endeavoring to avoid the force of the impending blow plaintiff lost his balance and fell from the car, to his injury, which resulted, among other things, in a broken arm. Contra to this, the evidence for defendant tends to prove that plaintiff was not a passenger upon the car at all and was not assaulted by the conductor in any wise. It suggests with considerable force that he was but a trespasser stealing a ride and fell off from his place at the rear of the car without interference or assault from anyone.

There are several arguments advanced for a reversal of the judgment, but we will notice one of them only, for it pertains to such an obvious error in the conduct of the trial that it should not be subordinated to, or confused by the discussion of, others. After the evidence was in, it appears the counsel on either side submitted their instructions in writing in due course, under our statute, to the court, together with the usual request involved therein that they should be given; whereupon plaintiff's counsel requested of the court permission to examine the instructions requested by defendant's counsel before it passed upon the same and had them read to the jury, which request the court denied. Having thus denied the right of plaintiff's counsel to see or inspect the instructions requested on behalf of defendant, the court proceeded to modify plaintiff's instruction No. 1 and gave it as modified, gave others on its own motion, and others requested by defendant, all of which were read to the jury. Plaintiff objected and excepted to this course at the time, and insisted upon his right to see and read defendant's instructions before they were finally passed upon by being marked given or refused by the court, and excepted again to the giving of each and all of the instructions on the part of defendant as well as to those given by the court on its own motion.

Touching this matter the bill of exceptions recites: "When defendant requested the court to give said instructions, plaintiff's attorney, Earl M. Pirkey, asked the court to permit him to see the instructions so requested by defendant before they were acted on by the court, but the court refused said request and would not permit plaintiff's said attorney to see any of said instructions before they were acted on by said court, but said court attached said instructions to the two instructions given at the instance of plaintiff, as above mentioned, and to the modified instruction, being instruction 1, and to the three other instructions given by the court of its own motion, and had them read to the jury, and plaintiff's said attorney had no opportunity to see any of said instructions so requested by defendant and given until after they had been read to the jury."

"To the said action of the court in refusing the said request of plaintiff's counsel to see said instructions numbered 4, 5, 6, 7, 8, 9 and 10, before they were acted on by the court, plaintiff duly objected and excepted at the time."

"To the said action of the court in not permitting plaintiff's said counsel to see said instructions numbered 4, 5, 6, 7, 8, 9 and 10, until after they had been read to the jury, plaintiff duly objected and excepted at the time."

"To the action of the court in giving said instructions 4, 5, 6, 7, 8, 9 and 10, and each of them, plaintiff duly objected and excepted at the time."

The theory on which the court denied this reasonable request of plaintiff's counsel does not appear, and, indeed, no valid one can be formulated. Obviously it was but the arbitrary exercise of a power which may not be justified or condoned in a court, erected for the purpose of trying causes between litigants, which is declared by our Constitution to be open to every person for the purpose of administering right and justice without denial. [Sec. 10, Bill of Rights, Constitution of Missouri.] It is the usual course to permit counsel on opposing sides to inspect instructions requested by their adversary, to the end that a more intelligent presentment of the issue may be given to the jury in the instructions when finally passed upon and given by the court. We have been unable to discover any authoritative decision in this State on the precise question here involved, for the reason, no doubt, that such requests to inspect instructions have not been denied. However, the dissenting opinion of Judge Woodson in the case of Harding v. Mo. P. R. Co., 232 Mo. 444, 452-456, 467, 134 S.W. 641 reveals the views of that jurist on the question, and it seems that none of his brethren of the Supreme Court intimated a contrary opinion on the proposition asserted by him. Touching it, Judge Lamm remarked: "When a court refuses to counsel the right to examine instructions and exception is taken to that course, we can deal with that case when here." The majority opinion in that cause is silent on the question because it was not made there, and it seems Judge Lamm merely referred to it because it was raised by way of argument in Judge Woodson's dissent. Touching this matter Judge Woodson said:

"Has it come to pass, where counsel, sworn officers of the court and the representatives of litigants therein, where their lives, liberty and property are involved, dare not ask the trial court the privilege of seeing and reading the instructions before they are given? I think not. I know of no such judge; . . . Nor have I ever heard of a court refusing counsel the privilege of seeing the instructions asked by the counsel for the opposite party prior to the court's ruling thereon; but upon the other hand, my experience and observation has been that courts invariably request counsel for the respective parties to exchange instructions prepared by them in order that they may assist the court in arriving correctly at the law of the case by pointing out any error they may contain, and thereby enabling the court to avoid error in declaring the law. It is here where counsel can best serve their clients' interests, and better aid the court in the proper administration of the law than anywhere else . . Every litigant of this State has a constitutional right to be heard either in person or by counsel, upon both the law and facts of his case, and that means a real hearing, not merely a hearing in name. . . . Instead of encouraging such practice and usurpation of power, if it exists, this court should, in unmistakable terms, place its seal of condemnation thereon, and require the trial courts to give counsel a respectful hearing upon the law of the case, and furnish them reasonable opportunities to see and read the instructions before they are given, in order that they may point out any error they may contain and make intelligent objections thereto, just as is done in passing upon the evidence of the...