Lavignon v. Dietzel
| Decision Date | 05 January 1931 |
| Docket Number | 29254,29255 |
| Citation | 34 S.W.2d 92 |
| Parties | LAVIGNON v. DIETZEL et al. (two cases) |
| Court | Missouri Supreme Court |
Charles E. Morrow and Wilbur C. Schwartz, both of St. Louis for appellants.
Woodward & Evans, of St. Louis, for respondent Dietzel.
John F Claney, Mark D. Eagleton, and James A. Waechter, all of St Louis, for respondent Lavignon.
This action was brought by plaintiff against Irwin Dietzel, Albert M. Koch, Marie Koch, and Florence Pollihan, as defendants, to recover the sum of $ 25,000 as damages for personal injuries alleged to have been sustained by him through their negligence in operating two automobiles on the streets of the city of St. Louis. On the trial of the issues, the jury found in favor of plaintiff as against the defendants Albert M. Koch and Florence Pollihan and assessed his damages at the sum of $ 4,000, but as to the defendant Dietzel their verdict was adverse to plaintiff. From the judgment, which conformed to the verdict, the plaintiff appealed, as did also the defendants Albert M. Koch and Florence Pollihan. As the appeals, though technically not cross-appeals, were from the same judgment, they were consolidated here and have been treated as one cause. Pending the appeal, appellant Albert M. Koch died, and the cause was revived in the name of his executrix, Marie T. H. Koch.
No elaborate statement of the facts is necessary for an understanding and disposition of the questions raised on the two appeals. Benton street is an east and west street and Elliott avenue a north and south street, in the city of St. Louis. Defendant Dietzel was driving an automobile owned by him westwardly on Benton street; defendant Pollihan, as agent of Albert M. Koch, was driving an automobile owned by the latter northwardly on Elliott avenue; the two automobiles collided at the intersection of the two streets. As a result of the collision, Koch's car was caused to leave the part of the street used for vehicular traffic and run up on the sidewalk and strike plaintiff, who was standing or walking thereon. There was evidence tending to show that the drivers of both automobiles were negligent in the respects charged in the petition, and that such negligence caused the collision and plaintiff's resulting injuries.
The evidence showed that, while defendant Albert M. Koch owned the car driven by Pollihan, he had caused it to be registered in the name of his daughter, Marie Koch; but the latter was not in the car, nor was she in any way concerned in the mission upon which her father and Pollihan were bound at the time of the collision. Upon this showing the trial court, at the conclusion of plaintiff's case in chief, sustained defendant Marie Koch's demurrer to the evidence. The jury, however, made no finding of the issues as to her, and her name was not mentioned in the judgment.
I. Plaintiff-appellant bases his appeal upon a single assignment of error, the giving of the following instruction asked by the defendant Dietzel:
'Gentlemen of the jury you are instructed that when the Court permitted witnesses to relate conversations with Doctor Koch and when the Court permitted counsel for plaintiff to introduce in evidence portions of the deposition of Doctor Koch, the Court did so only by reason of a rule of law which permits such statements or depositions to be considered by you in relation to the defendant Doctor Koch, and they are not to be considered by you as any evidence, or in any manner affecting the case against the defendant Irwin Dietzel, as he is not in any manner bound by the statements or the deposition of the defendant Doctor Koch.
'Therefore, in considering the evidence as it affects the defendant Irwin Dietzel, it is your duty to disregard any evidence, if any, as to such statements or deposition so admitted in evidence and concerning which the Court cautioned you at the time.'
On the trial, plaintiff offered evidence of statements made by defendant Albert M. Koch immediately following the accident, and also read in evidence his deposition taken some time later, as admissions or declarations against interest. At the time such evidence was received, the trial court, on the suggestion of Dietzel's counsel, admonished the jury that the testimony was 'to be taken as against Dr. Koch and not as against the other defendant, Dietzel.' It is claimed that the instruction just set out was erroneous (a) because the court had properly limited the evidence therein referred to at the time of its introduction; and (b) because the instruction was 'unduly argumentative, confusing and misleading.'
(a) The fact that the court had limited the...
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