Myles v. St. Louis Public Service Co.

• Decision Date: 14 June 1932
• Docket Number: No. 21994.,21994.
• Citation: 52 S.W.2d 595
• Court: Missouri Court of Appeals
• Parties: MYLES v. ST. LOUIS PUBLIC SERVICE CO.

52 S.W.2d 595

MYLES v. ST. LOUIS PUBLIC SERVICE CO.

No. 21994.

St. Louis Court of Appeals. Missouri.

June 14, 1932.

Rehearing Denied September 23, 1932.

Appeal from St. Louis Circuit Court; Arthur H. Bader, Judge.

"Not to be officially published."

Action by Hazel Myles against the St. Louis Public Service Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

T. E. Francis and B. G. Carpenter, both of St. Louis, for appellant.

Hal R. Coleman and Burt A. Kaemmerer, both of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff, Hazel Myles, on March 24, 1928, when she was thrown from a street car owned and operated by defendant, St. Louis Public Service Company. Her theory of the accident, as shown by her pleading and proof, was that while she was in the act of alighting from the car, and before she had been given the time or opportunity to step down safely to the street, the car was suddenly caused to start and move forward, throwing her down upon the street with great force and violence, and causing her to sustain the injuries for which she has sued.

In view of the turn taken by the case in this court, no further statement in regard to either the facts or the pleadings is necessary. No question is raised concerning the sufficiency of the evidence to have made a case for the jury; and it is enough merely to observe that from the standpoint of the defendant, the credibility of the plaintiff was the major issue in the case.

Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $750; and from the judgment rendered, defendant has duly appealed the case to this court.

The sole controversy on this appeal revolves around the right of defendant to have had the jury consider the transcript of certain proceedings in the St. Louis court of criminal correction, which it claims was the record of the trial and conviction of plaintiff in that court of the crime of petit larceny.

Near the close of the cross-examination of plaintiff, the following occurred:

"Judge Green: Now, then, on the 10th day of January, 1929, that is in the year following the accident, weren't you convicted and pled guilty to a charge of larceny, and sentenced to thirty days in the workhouse? A. Yes, I was sentenced to thirty days.

"Mr. Coleman: I object to that unless he has the record here.

"The Court: Well, she admits it herself.

"Mr. Coleman: Well, as Your Honor knows from your own experience on the criminal bench that they don't always know what they are convicted for.

"Judge Green: That was in the January following the accident, is that right? A. Following the accident?

"Q. The accident occurred in January, 1928. Now, when you got the thirty days' sentence, was in the next January after the accident. A. I don't know exactly, but I know I got thirty days, and that is all I know. * * *

"Redirect Examination:

"Q. Do you know what larceny is? A. Larceny?

"Q. Yes, do you know that? A. When you steal something. * * *

"Mr. Coleman: Were you ever convicted for stealing anything? A. No, sir.

"Q. What were you convicted for? A. For fighting.

"Q. Did you have a lawyer up there? A. No, sir. I just went and put up my time.

"Q. You never were convicted for larceny then? A. No, sir.

"Q. Or convicted of stealing anything? A. No, sir.

"Q. You don't know when this was when you were sent down to the workhouse? A. No, sir, I don't.

"Q. And do you know — you say you didn't have a lawyer? A. No, sir.

"Q. And nobody to tell you about what charge was put against you except what was read from the bench? A. No, sir.

"Q. Did you know what that was when they were reading the charge? A. No, sir, I don't know nothing about court.

"Q. And you deny that you were ever convicted of stealing anything? A. No, sir, never have stole anything.

"Q. Did you understand awhile ago when Mr. Green asked you if you were convicted of stealing? A. No, sir.

"Q. Then, you weren't convicted of larceny? A. No, sir. * * *

"Recross Examination:

"Q. But you got thirty days? A. Yes, sir.

"Q. But you didn't know the charge was larceny? A. No, sir, they never had me for larceny.

"Q. What did they do with you over there? A. They just asked me if I was guilty and I said yes.

"Q. What did you think you were pleading guilty to? A. I don't know."

The record shows that suit was brought by plaintiff as Hazel Myles, and throughout the bill of exceptions the spelling appears the same in every instance where she was asked to state her name. How conclusive the record is in this respect we cannot say, for plaintiff was never asked about the spelling; and it may be, as defendant's counsel insist, that the court reporter in transcribing his notes simply copied the name as it appeared in the caption of the petition. However, when plaintiff's husband was later put upon the stand in her behalf, he was pointedly asked on cross-examination how he spelled his name, and he gave the spelling as Miles.

At the beginning of defendant's case its counsel sought to introduce in evidence a certified copy of the record of the St. Louis court of criminal correction heretofore referred to, disclosing that Hazel Miles had been charged by information in that court with the crime of petit larceny, alleged to have been committed on January 9, 1929; and that on January 22, 1929, upon her plea of not guilty, she was tried by the court, found guilty as charged, and given thirty days in the workhouse.

Such record was allowed to be read to the jury over the objection of plaintiff's counsel that there had been no showing that plaintiff was the Hazel Miles mentioned therein.

Following the introduction of the record in question, defendant put two witnesses on the stand, neither of whom was asked or purported to identify plaintiff as the accused named in the criminal proceeding. Thereupon, at the instance of plaintiff's counsel, the following occurred:

"Mr. Coleman: I will ask the Court to instruct the jury to disregard any reference to Defendant's Exhibit 1, relating to the conviction of Hazel Myles, on the ground that it hasn't been connected with the plaintiff in this case. Here is a city of a million people, and it is easy enough to hang something like that on a person like this. I object to any consideration of the testimony, as well as the exhibit, or, rather, I object to any consideration of the exhibit marked Defendant's Exhibit 1, or any testimony relating thereto, at this time. I ask the Court to instruct the jury to disregard it.

"The Court: I will sustain the objection on the ground that the information on file in court shows the spelling of the name H-a-z-e-l M-i-l-e-s, and the petition in the law suit is styled H-a-z-e-l M-y-l-e-s, and that the charge in the information is petit larceny, which the plaintiff did not admit on the stand as being charged with, the charge she admitted to being guilty of was one of pleading guilty to disturbance of the peace and taking thirty days' sentence on the plea, and where the record in the information shows a trial and a conviction. For those grounds, I am sustaining plaintiff's objection to the introduction of the information, and instruct the jury to disregard the same. Also, on the ground that it is not shown that this is the same party as named in the information.

"Judge Green: We except to the ruling of the Court on the ground that her husband testified that the correct spelling of her name was M-i-l-e-s.

"The Court: Gentlemen of the jury, you are instructed that you are to disregard any reference to the paper which Mr. Green read to you, and which was marked as Defendant's Exhibit 1, and you are not to consider that in arriving at your verdict."

It is the above action of the court in charging the jury to give no consideration to the record in question that defendant assigns as error on this appeal; its argument being that it was entitled to have the jury consider such record of conviction for the purpose of impeaching the plaintiff and attacking her credibility, and that by directing the jury to disregard such record completely, the court deprived it of its right to impeach the plaintiff by showing that she had falsified with respect to a material issue in the case.

By section 1752, R. S. 1929 (6 Mo. St. Ann. § 1752), it is provided as follows: "Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he...