Levels v. St. Louis & H. Ry. Co.

• Decision Date: 30 May 1906
• Citation: 196 Mo. 606,94 S.W. 275
• Court: Missouri Supreme Court
• Parties: LEVELS et al. v. ST. LOUIS & H. RY. CO.

94 S.W. 275

196 Mo. 606

LEVELS et al. v. ST. LOUIS & H. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 30, 1906.

1. PLEADING—AMENDMENT OF ANSWER.

In an action for the death of an infant daughter of plaintiffs, where the petition states that the father of the decedent has been adjudged insane and that the public administrator has taken charge of his estate and represents him in the suit, leave to file an amendment to the answer offered after the plaintiffs had introduced most of their evidence, denying these allegations, was properly refused.

2. APPEAL—REVIEW—VERDICT.

Where a verdict is supported by substantial evidence, it will not be reviewed on appeal.

3. EVIDENCE—RELEVANCY.

Where witnesses testified that the date of birth of a person which was in issue was contemporaneous with the execution of a certain person for murder, depositions of a clerk of court and an editor as to the date of the trial and the execution for the murder were not objectionable as foreign to the issue.

4. WITNESSES—REDIRECT EXAMINATION.

Where, in answer to a question on cross-examination whether a decedent was intelligent enough not to give her age falsely or erroneously, the witness stated that she thought decedent had a purpose in telling an untruth about it, it was improper, on redirect examination, to permit the witness to state what the purpose was.

5. TRIAL—REMARK BY COURT.

Where, in answer to a question on cross-examination whether a decedent was intelligent enough not to give in her age falsely, the witness answered that she thought decedent had a purpose in telling an untruth about it, the remark of the court, in overruling an objection to a question on redirect examination, that it was a very ugly insinuation against the party who had testified unless it was explained, was improper.

6. TRIAL — RECEPTION OF EVIDENCE — DOCUMENTS—ADMISSIBILITY.

On an issue as to the age of a person, where several school enumeration lists were offered in evidence and some were admitted, there was no error in excluding others which had not been made in conformity with the statute.

7. EVIDENCE — DOCUMENTS — SCHOOL TEACHER'S REGISTER.

Under Rev. St. 1899, § 9800, requiring every teacher in the public schools to keep a daily register in which the names and ages of pupils shall be entered, on an issue as to the age of a person, a teacher's register should have been admitted in evidence.

8. TRIAL—REMARKS OF COUNSEL.

Where the age of a person was in issue, and plaintiffs introduced evidence that the age was shown in a family Bible, but did not introduce it in evidence, and defendant's counsel in his argument to the jury referred to the omission, it was improper for plaintiffs' counsel then to produce the book and state that it could then be introduced to the jury.

Appeal from Circuit Court, Audrain County; H. W. Johnson, Judge.

Action by Mary E. Levels and another against the St. Louis & Hannibal Railway Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed and remanded.

George A. Maham, P. H. Cullen, and J. D. Hostetter, for appellant. Geo. W. Emerson and W. O. Gray, for respondents.

VALLIANT, J.

Plaintiffs sue under section 2864, Rev. St. 1899, to recover damages for the death of their daughter, Hattie Levels, who they say was a minor at the time of her death, and lost her life while a passenger in defendant's car through negligent defect in the equipment. The petition states that the plaintiff Powhatan Levels, the father of the deceased Hattie, has been adjudged insane by the probate court, and that the public administrator has taken charge of his estate and represents him in this suit. The answer was a general denial and a plea of contributory negligence. During the trial, after the plaintiffs had introduced the most of their evidence, the defendant asked leave to file an amendment to its answer denying that Powhatan was insane, or that he had been adjudged insane, or that the public administrator had been lawfully authorized to take charge of his estate. On objection of the plaintiffs, the court refused to allow the amendment, for the reason, as stated by the court, that it would not be in furtherance of justice. That ruling is assigned as error.

1. The ruling of the court in that respect was right. If the defendant intended to deny the capacity in which the plaintiff sued it should have made a specific denial of the allegations of the petition in that respect in the nature of a plea in abatement. The general denial is addressed to the merits of the case, and does not put in issue those facts which are raised only by a plea in abatement. Plaintiffs were not put to the proof of those facts to maintain their case as the pleadings stood when the trial began, and the trial court wisely ruled that it would not further the ends of justice under the circumstances of the case to allow the issue to be raised after the trial had progressed.

2. The main pivot on which the case turned was the age of plaintiffs' deceased daughter. If she were a minor, the plaintiffs were entitled to recover; if she was 18 years of age, the plaintiffs could not recover. The plaintiffs' testimony tended to prove that her age was 17 years and 10 days; defendant's, that it was 19 years and 10 days. The jury found for the plaintiffs, and a judgment for $5,000 in their favor was rendered, from which defendant appealed.

Appellant in its brief concedes that the deceased was a passenger and lost her life through the negligence of the carrier, and that defendant is liable if in a fair trial it is found that the deceased was under 18 years of age at the time of her death. The general character of the plaintiffs' testimony was that of witnesses who remembered the occasion of the birth of Hattie and undertook to fix the date in reference to some collateral event that was of sufficient importance to fix it on the mind of the witness. For instance, one witness who was present at the birth remembered that it was about one month after the birth of her own child, whose age was recorded and well remembered; another remembered that she stopped at the plaintiffs' home on that occasion when she was on her way to see her grandmother, who was ill, and who died shortly afterwards, and the date of whose death was proven; other witnesses remembered the occasion in connection with the time a man was hanged for murder, the date of the execution being shown by the court records. The plaintiffs' evidence also tended to show that the Levels kept a family Bible in which the ages of their children were recorded, and that Hattie's age was there recorded. This Bible was shown to be in the custody of the plaintiffs, but was not introduced in evidence. One of the plaintiffs, the mother of Hattie, testified that she and her husband were married in September, 1882; that they had three children—Hattie, the eldest, born in July, 1885; Blanche, the second, born June, 1887, and William, in 1889. The testimony on the part of the defendant was derived chiefly from the records of the school enumerations, the United States census enumeration, and Hattie's school record. These enumerations showed that Hattie was born in July, 1883, Blanche in June, 1885, and William in 1887. Defendant also introduced testimony of the same character as that of plaintiffs; for example, one witness for defendant testified that in the summer of 1884 she called at the house of plaintiff on a matter of business early in the morning, and found the family seated at the breakfast table, their child sitting in a baby's high chair at the table, some conversation ensued between the mother and the visitor about the child, and in the same conversation mention was made of the death of the witness' mother, which had recently occurred, the date of which was August 29, 1884. The defendant's testimony tended to show that Hattie was a teacher in the public schools. She received her first certificate as a school teacher in August, 1900, just two years before her death. If she was born in August, 1885, as the plaintiffs claim, she was only 15 years old when she became a teacher in the public school. The school commissioner who issued the certificate testified that he knew nothing of her age when he issued it, except as he judged by her appearance, and, so judging it, he would say she was at that date August, 1900, 18 years old. In November, 1901, she applied for an advanced certificate, and was again examined by the then school commissioner, who testified that she then told him that she was 19 years old, and he made a memorandum of the fact at the time, which memorandum was on the stub in the book from which the certificate was taken. There was also in evidence an application for a life insurance policy, signed by Hattie, for insurance on her own life in favor of her mother, dated July 3, 1899, in which she stated that she was born July 24, 1883; and there was proof of her death made to collect the insurance, which was signed by the plaintiff, Hattie's mother, in which she stated that Hattie's birth was July 24, 1883. The insurance agent who took that proof testified that he wrote the date of the birth at the dictation of Mrs. Levels, who, before answering his questions as to the date, examined some book which to the witness looked like a Testament, and then gave the date, and he wrote it as she gave it, and she collected the money; that proof of death was dated August 6, 1902, three days after the death. This suit was filed January 24, 1903.

Our purpose in thus stating the general character of this evidence is not to weigh it, to see if the jury's estimate of it was correct, because an appellate court has no right to do that. The same authority that gives the court the right to say what the law is gives the jury the right to say what the facts are, and the court has no more right to set at naught the jury's finding of the facts than the jury has to disregard the court's declaration of the law. To...