Leavea v. Southern Ry. Co.

• Decision Date: 02 December 1915
• Docket Number: No. 17592.,17592.
• Citation: 181 S.W. 7
• Parties: LEAVEA v. SOUTHERN RY. CO.
• Court: Missouri Supreme Court

181 S.W. 7

LEAVEA v. SOUTHERN RY. CO.

No. 17592.

Supreme Court of Missouri, Division No. 1.

December 2, 1915.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by William Leavea against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions. Judgment (171 Mo. App. 24, 153 S. W. 500) affirmed.

Samuel B. McPheeters, of St. Louis, for appellant. Frank A. Thompson, of St. Louis (Guy A. Thompson, of St. Louis, of counsel), for respondent.

RAILEY, C.

Plaintiff brought suit in the circuit court of the city of St. Louis, Mo., to recover damages on account of injuries claimed to have been inflicted upon him, in the form of an assault, by an alleged agent of defendant, while acting within the scope of his employment. Since said assault, and before the trial in the circuit court, the alleged agent, Teague, departed this life. Notwithstanding the prior death of Teague, who is charged with having made the assault, and thus created the cause of action, plaintiff was permitted, over the objection and exception of defendant, to detail in evidence at the trial his version of the controversy and the assault made upon him. To the offer of this evidence concerning all that was said and done by Teague, defendant's alleged agent and watchman at the time, an objection and exception was interposed, on the ground that Teague, the other party to the transaction in issue and on trial, was dead. The trial court overruled said objection, and permitted plaintiff to testify as to what was said and done between himself and Teague.

Upon the trial in the circuit court, the jury returned a verdict in favor of plaintiff for $999 as compensatory damages, and $1,000 as exemplary damages, and judgment was entered accordingly. Defendant filed a motion for new trial and in arrest of judgment in due time. The trial court ordered a remittitur so as to reduce the compensatory damages to $500 and the exemplary damages to same amount. Thereupon the court, after a remittitur was entered, rendered judgment for $1,000, and overruled defendant's motion for a new trial and in arrest of judgment. The case was duly appealed to the St. Louis Court of Appeals, and the latter reversed and remanded the cause, on the ground that the trial court erred in permitting plaintiff to testify over defendant's objection, to the transactions and conversations which occurred between himself and Teague after the latter had died.

The opinion of the Court of Appeals was written by Judge Nortoni, and concurred in by each of the other judges of said court. The latter, deeming the conclusion reached to be in conflict with the opinion of Judge Broaddus in Drew v. Wabash R. Co., 129 Mo. App. 459, 107 S. W. 478, on identically the same question, certified the case to this court, as provided by law under such circumstances. Counsel for appellant, at the oral argument of said cause here, announced with commendable fairness that the only question before us was whether the testimony of plaintiff in regard to the transactions and conversations between himself and Teague was competent under our statute.

The controversy is thus narrowed down to a construction of section 6354, R. S. 1909, which reads as follows:

"No person shall be disqualified as a witness in any civil suit: * * * Provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown...