Quinn v. Berberich

• Decision Date: 06 March 1934
• Docket Number: No. 21996.,21996.
• Parties: QUINN v. BERBERICH.
• Court: Missouri Court of Appeals

68 S.W.2d 925

QUINN v. BERBERICH.

No. 21996.

St. Louis Court of Appeals. Missouri.

March 6, 1934.

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

"Not to be published in State Reports."

Action by Mabel Quinn, an infant, by Emma Quinn, her next friend, against William Berberich, doing business as the Berberich Delivery Company. From a judgment for plaintiff, defendant appeals.

Reversed, and cause remanded.

Grimm, Mueller & Roberts, of St. Louis, for appellant.

Everett Hullverson and Staunton E. Boudreau, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff, a seven year old child, when struck by a motorcycle being operated in the business of defendant. The verdict of the jury was for plaintiff for $5,000; and, from the judgment entered, defendant duly perfected his appeal to this court.

Upon the original submission of the case, the judgment was affirmed in an opinion by Haid, P. J., and reported as Quinn v. Berberich (Mo. App.) 51 S.W.(2d) 153. Subsequently, upon certiorari granted to the Supreme Court, our record and judgment was quashed (State ex rel. Berberich v. Haid [Mo. Sup.] 64 S.W.(2d) 667); and the case is now pending before us upon reargument and resubmission.

Nothing is more certain than that the opinion of the Supreme Court is the law of the case upon its present submission to the extent that the court has spoken; and plaintiff's counsel do not argue to the contrary. What they do insist is that, in ruling upon the question of whether or not a certain alleged error was harmful (and, incidentally, in contravening the last controlling decisions of the Supreme Court in so doing), we misconceived the record in holding that the error in question had been committed; that the discussion, both in this court and in the Supreme Court, of what the effect of such an error would have been had it been committed, was therefore purely academic, and directed to a moot question; and that obedience to the holding of the Supreme Court upon what that court was induced to regard as a live issue in the case does not preclude us from now determining the case upon the actual record which, correctly read and construed, would show that no such issue was ever involved.

We have no doubt that the theory upon which plaintiff argues for the present determination of the case is proper enough, but we cannot read the record as bearing out the insistence of her counsel that no error was committed.

The controversy centers around the question of the propriety of the action of the court in having permitted plaintiff's counsel to read to the jury from the deposition of Claude Benton, one of plaintiff's witnesses, after he had testified, and while he was at all times present in court. Such deposition had been taken by defendant on April 25, 1931, two days before the trial; and upon the former submission of the case the point of the competency of the deposition in evidence was considered by us upon the theory that it had been used by plaintiff to rehabilitate the testimony of Benton at the trial as impeached by a written statement alleged to have been signed by him on February 21, 1930, very shortly after the happening of the accident. Because of the fact that the rehabilitating evidence followed the impeaching evidence in point of time, we held that the use of the deposition in evidence was error, but that the error was harmless, inasmuch as ample evidence other than that of Benton had sustained the fact which his own evidence supported. Upon certiorari to the Supreme Court, the court agreed that the use of the deposition was error for the reason stated by us, but disagreed with us in holding that the error was harmless merely because the testimony of the witness was cumulative. It was because of the conflict between our holding and what the Supreme Court regarded as their last controlling decision upon the...