Nielsen v. Dierking

• Decision Date: 11 September 1967
• Docket Number: No. 52256,No. 2,52256,2
• Citation: 418 S.W.2d 146
• Parties: Thomas Scott NIELSEN, a minor, by his father and next friend, Ralph A. Nielsen, Plaintiff-Respondent, v. Martha DIERKING, Administratrix of the Estate of George S. Dierking, Deceased, Defendant-Appellant
• Court: Missouri Supreme Court

Page 146

418 S.W.2d 146

Thomas Scott NIELSEN, a minor, by his father and next friend, Ralph A. Nielsen, Plaintiff-Respondent, v. Martha DIERKING, Administratrix of the Estate of George S Dierking, Deceased, Defendant-Appellant.

No. 52256.

Supreme Court of Missouri, Division No. 2.

Sept. 11, 1967.

John R. Gibson, Byron J. Beck, Morrison, Hecker, Cozad & Morrison, Kansas City, for plaintiff-respondent.

Thomas E. Deacy, Jr., Joseph A. Sherman, Joseph W. Amick, Deacy & Deacy, Kansas City, for defendant-appellant.

FINCH, Presiding Justice.

The jury returned a verdict for defendant in a suit wherein plaintiff sought $350,000 for personal injuries received when he was run over by a school bus operated by defendant's decedent. The trial court sustained plaintiff's motion for a new trial and defendant appeals.

The trial court assigned two grounds for sustaining plaintiff's motion for a new trial. Both concerned the admission of certain evidence by the trial court and involve the doctrine which permits the admission into evidence of prior consistent statements for the purpose of rehabilitation of the witness when that witness has been impeached by proof of statements inconsistent with his trial testimony. Plaintiff does not seek to sustain the action of the trial court on any other basis. The limited issues involved necessitate a resume of only a portion of the evidence.

The occurrence in controversy took place on December 11, 1962, a short distance east of the intersection of Oak Street and 108th Terrace in Kansas City. Plaintiff, then seven and one-half years old, was a student at Red Bridge Elementary School located one block north of the intersection in question. A school bus belonging to and operated on behalf of defendant's decedent turned left from Oak Street onto 108th Terrace, and just east of the intersection its wheel or wheels ran over plaintiff, resulting in very serious injuries, including complete paralysis of the body below a point just above the waist.

Plaintiff testified that when he ran across 108th Terrace he had not seen the school bus When he got to the middle of the street, he stopped and somehow fell down. He then saw the bus coming around the corner from Oak Street and it ran over him.

Defendant pleaded contributory negligence and sought to show that the plaintiff ran into the side of the bus and slipped or fell under the left rear wheel. One witness for defendant was Mrs. Ilean Withrow. She testified that after stopping at the school to pick up children, she drove south on Oak Street and was the second or third car behind the school bus. The bus made a complete stop at the corner and then swung very wide to make the turn onto 108th Terrace. At the time, Mrs. Withrow saw children on the northeast corner of the intersection with a safety patrol boy in front of them holding his arm out. When the bus made its turn onto 108th Terrace, there was nothing in the street in front of the bus. Mrs. Withrow continued straight ahead on Oak Street. She observed that the bus stopped and as she crossed the intersection she saw children in the middle of the street on 108th Terrace. She then stopped her car and went back to see what was wrong. Plaintiff was lying in the middle of the street. A man pickup him up and carried him into a house where he was placed on a couch. Mrs. Withrow followed into the house. The boy was trying to talk but was told to lie still and say nothing. Mrs. Withrow stated that the boy still talked and said, 'I slipped and fell under the bus.' She further testified that she saw a Mrs. Leighton in the house, to whom she remarked, 'Do you suppose the bus ran over the boy?' and Mrs. Leighton replied, 'Yes, I seen him slip and fall under the left rear wheel.'

On cross-examination, Mrs. Withrow admitted that a Mr. North, an attorney for plaintiff, and a woman reporter with a stenotype machine came out to question her on January 7, 1963. A transcript of the stenographic notes was identified as plaintiff's Exhibit 11, and Mrs. Withrow was asked about a number of questions and answers appearing in that stenographic report. She indicated that she did not believe that certain answers therein were given by her, and said something about her answers having been rearranged but she declined to say that the stenographer had rearranged her answers, and when shown specific questions and answers on the stenographic report conceded that such questions were asked and the answers given. Certain answers contradicted testimony given by Mrs. Withrow on direct examination. For example, she had stated to Mr. North that she did not see the bus make the turn and she assumed it turned left from Oak Street onto 108th Terrace because it had to. The transcript indicated that she stated to Mr. North that when she saw the bus it was parked. She further stated that when plaintiff was lying on the couch in the house, he did not say how the accident happened. There were certain other variances from her testimony at the trial, but we need not detail them herein. Plaintiff's Exhibit 11, which was the stenographic report, was offered and received in evidence.

On direct examination the defendant established by Mrs. Withrow that a Mr. Sherman, one of the attorneys for defendant, had taken a longhand statement which she verified and signed. It bore the date of July 2, 1963, and was identified as defendant's Exhibit 12. Over objection that this exhibit was not admissible as a prior consistent statement since it had been given after the impeaching statement given in January of 1963, the defendant's Exhibit 12 was received in evidence by the court as a prior consistent statement.

Another witness called by defendant was Marilyn K. Meyer, a sixth-grade student at Red Bridge School at the time of the accident. Marilyn testified that on the afternoon in question she was a passenger on the school bus and was seated next to the window on the driver's side about three seats from the rear. The bus went south on Oak Street. It stopped on 108th Terrace and then turned east onto 108th Terrace. Marilyn saw plaintiff standing on the sidewalk at the corner at a time when the school bus was about halfway through its turn. The front of the bus had gone beyond the cross-walk at the time when she saw Tommy step off the sidewalk but she saw nothing after that.

On cross-examination, Marilyn was asked if a Mr. Beck came to see her in February 1963 to talk about the accident She stated that he had no been to her she and she had talked only to Mr. Sherman. Plaintiff had a statement, marked as his Exhibit 12, at the bottom of which Marilyn identified her signature and the signature of her mother, which read, 'The above statement was made in my presence. Mrs. W. W. Meyer.' She insisted, however, that Mr. Beck had never talked to her and she did not recall the statement at all. She did not recall saying, 'I did not see Tommie Nielsen before the accident, and don't know what part of the bus hit Tommie,' which appeared in the statement. Said plaintiff's Exhibit 12 was offered in evidence by plaintiff.

On redirect examination, Mr. Sherman, for the defendant, developed by Marilyn that he had talked to her in June of 1963 and she gave him a written statement dated June 14, 1963. It was marked as defendant's Exhibit 15. Mr. Sherman then proceeded to read from the statement to the witness and asked her if the statements were right. Plaintiff objected on the basis that this was an attempt to rehabilitate the witness with a statement given later than the impeaching statement received in evidence, but the objection was overruled and the answer received. In this manner, the exhibit was read to the jury but it was not formally introduced as an exhibit.

Missouri cases have established the rule '* * * that when a witness has been impeached by proof of his statements inconsistent with his trial testimony, prior consistent statements are admissible into evidence for the purpose of rehabilitation.' Stafford v. Lyon, Mo., 413 S.W.2d 495, 498. See also Piehler v. Kansas City Public Service Co., 360 Mo. 12, 226 S.W.2d 681. However, for the statement to be admissible in evidence as a prior consistent rehabilitating statement, it must have been made prior to the impeaching statement. The rule was stated by Judge Tipton in State ex rel. Berberich v. Haid et al., 333 Mo. 1224, 64 S.W.2d 667, 669, as follows: 'We have uniformly ruled that, where the rehabilitating statement was made prior to the impeaching statement, such a statement may be properly admitted for the purpose of rehabilitating the witness, and that, where the rehabilitation is subsequent to the impeaching statement, it is not admissible and it is reversible error to admit it in evidence.' Subsequent cases reaffirming this rule are Ayres v. Keith, Mo., 355 S.W.2d 914, 921--922 and Quinn v. Berberich, Mo.App., 68 S.W.2d 925, 926. See also the earlier case of State v. Creed, 299 Mo. 307, 252 S.W. 678, 681(2), for a discussion of the rule.

Under the cases above cited, if Mrs. Withrow's statement to Mr. Sherman (defendant's Exhibit 12) was given after the interview with Mr. North (plaintiff's Exhibit 11), which was the impeaching statement, it was inadmissible as a matter of law.

The evidence with reference to the time when the statements were given were as follows: Each of the written documents bore a date. Plaintiff's Exhibit 11 was dated January 7, 1963, and defendant's Exhibit 12 was dated July 2, 1963. Mrs ...