Rossomanno v. Laclede Cab Co.

Citation328 S.W.2d 677
Decision Date09 November 1959
Docket NumberNo. 47001,47001
PartiesEdward G. ROSSOMANNO, Appellant, v. LACLEDE CAB COMPANY, a Corporation, Respondent.
CourtUnited States State Supreme Court of Missouri

Charles E. Gray, Cleo V. Barnhart and Barnhart & Sommers, St. Louis, Attorneys for Plaintiff-Appellant.

John T. Murphy, Jr., and Carl R. Gaertner and Murphy & Gaertner, St. Louis, Attorneys for Defendant-Respondent.

STORCKMAN, Presiding Judge.

This is a personal injury action in which a jury found for the plaintiff and assessed his damages at $1,500. Plaintiff's motion for 'a new trial on the measure of damages' was overruled and he has appealed.

The accident happened during the nighttime on December 2, 1956, while plaintiff was delivering newspapers, a part-time employment in which he engaged to supplement his income as a mail carrier for the United States Post Office Department. Plaintiff was seated in his automobile, stopped on Delmar Boulevard in St. Louis headed east, when it was struck from the rear by a taxicab operated by the defendant company. The defendant disputed liability on the theory that the collision was the result of a sudden emergency created by a westbound automobile swerving into the pathway of the eastbound taxicab. However, the controversy over damages took up most of the trial time. The defendant contended the impact of the collision was not as great as the plaintiff contended, that plaintiff's injuries were not serious or disabling and were attributable in part at least to a previous accident in which plaintiff was involved on June 11, 1951.

Although inadequacy of the verdict is not presented as such the appellant, consistent with his limited motion for new trial, concludes his brief with the assertion that 'this Court should therefore reverse and remand this case for a new trial on the measure of damages.' This case is unlike Ashbrook v. Willis, 338 Mo. 226, 89 S.W.2d 659, in which the trial court had granted plaintiff a new trial and the issue on appeal was made by defendant-appellant's contention that his $500 judgment against the plaintiff should be reinstated. In this case the amount in dispute for purposes of appellate jurisdiction is the difference between the amount of damages prayed for and the amount of the judgment rendered in the trial court. Glore v. Bone, Mo., 324 S.W.2d 633; Combs v. Combs, Mo., 284 S.W.2d 423, 424; Vogrin v. Forum Cafeterias of America, Inc., Mo.App., 301 S.W.2d 406, 409, and Mo., 308 S.W.2d 617. The amount prayed for was $27,500 and the amount recovered was $1,500; hence this court has jurisdiction.

At the instance of the defendant the court gave Instruction No. 7 on the credibility of witnesses, the second paragraph of which reads as follows: 'In this connection you are further instructed that, if you believe that any witness has knowingly sworn falsely to any fact or facts material to the issues in this case, then you may disregard such portion of the testimony as you believe to be false, if any, and you are at liberty to reject or disregard all other portions of such witness' testimony.'

The plaintiff alleges that the use of the word 'may' (italicized in the instruction) 'was clearly a misdirection of law in that it left it up to the jury as to whether or not they would disregard testimony which they believed to be false.' The plaintiff says that the jury should have been instructed that it 'must' disregard such portion of the testimony as it believed to be false and relies in part upon Tyler v. Lindell Trust Co., Mo.App., 285 S.W.2d 16, 20, which holds that th appellant in that case could not have been prejudiced by an instruction which told the jury that 'you must disregard such portion of the testimony as you believe to be false, if any, and you are at liberty to reject all other portion of such witness' testimony.' Plaintiff also cites State v. Whipkey, 358 Mo. 563, 215 S.W.2d 492, 494, in which an instruction advising the jury that 'you should reject all or any portion of such witness' testimony' was held to be erroneous because it invaded the province of the jury. The opinion then states: 'Such instructions should inform the jury in substance that if any witness has wilfully and knowingly sworn falsely as to any material fact in issue it should disregard such false testimony and may reject any or all such witness' testimony.' Emphasis added.

It should be kept in mind that the giving of an instruction on the credibility of witnesses and more particularly on false testimony is largely within the discretion of the trial court. Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242, 247; State v. Hardin, 324 Mo. 28, 21 S.W.2d 758, 761[6, 7]. Presumably the determination of when a witness is lying and knowing what to do about it when he does is a function which a juror can ordinarily perform without any particular direction.

A so-called falsus in uno, falsus in omnibus instruction which merely authorizes the jurors to disregard testimony which they believe to be false are useless declarations of the obvious, but they are not prejudicially erroneous. State v. Willard, 346 Mo. 773, 142 S.W.2d 1046, 1052; Douglas v. Twenter, 364 Mo. 71, 259 S.W.2d 353, 360; Flint v. Loew's St. Louis Realty & Amusement Corp., 344 Mo. 310, 126 S.W.2d 193, 197; Eisenbarth v. Powell Bros. Truck Lines, 235 Mo.App. 442, 125 S.W.2d 899, 901-902, and on certiorari, State ex rel. Powell Bros. Truck Lines v. Hostetter, 345 Mo. 915, 137 S.W.2d 461; State v. Reynolds, 345 Mo. 79, 131 S.W.2d 552, 556; State v. Busch, 342 Mo. 959, 119 S.W.2d 265, 269. In the Willard case the court stated, 142 S.W.2d loc. cit. 1052: 'The main purpose of such instructions is to guide the jury in applying the rule of evidence expressed in the maxim Falsus in uno, falsus in omnibus. Instructions which merely authorize them to reject testimony they think is false, do not come under the maxim and are useless declarations of the obvious, but not prejudicially erroneous.' The other cases discussing the legal effect of this permissive sort of language are of the same purport.

The first paragraph of the instruction properly advised the jury that 'you are the sole judge of the credibility of the witnesses and the weight to be given to their testimony.' State v. Hart, 331 Mo. 650, 56 S.W.2d 592, 594; Lukitsch v. St. Louis Public Service Co., 362 Mo. 1071, 246 S.W.2d 749, 755-756. Other instructions in the case also tended to advise the jury that it had the province of determining what evidence was believable or credible.

The word 'may' is not as compelling as 'must' or as obligatory as 'should', but it is not preclusive of them. Kippenbrock v. Wabash Railroad Co., 270 Mo. 479, 194 S.W. 50, 52; Thompson v. Quincy, O. & K. C. R. Co., Mo., 18 S.W.2d 401, 405; State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 308. This instruction and the others do not prohibit the jury from disregarding entirely testimony not deemed worthy of belief but plainly indicates that it should. In these circumstances the instruction is not a misdirection to the jury but at most a nondirection which is not reversible error. Rose v. Missouri Dist. Telegraph Co., 328 Mo. 1009, 43 S.W.2d 562, 570, 81 A.L.R. 400; State ex rel. Rothenheber v. Allen, 307 Mo. 480, 270 S.W. 633, 634. The jury found for the plaintiff and we cannot believe that a jury discerning enough to 'judge the credibility of witnesses and the weight to be given to their evidence' with respect to liability would stray so far as to forget their standards and duty in evaluating the evidence as to damages. Hence it does not appear that the giving of Instruction No. 7 constituted an error materially affecting the merits of the action. Section 512.160 RSMo 1949, V.A.M.S.

The plaintiff further assigns error in the admission in evidence of defendant's Exhibit F, an office record of Dr. Vilray P. Blair, Jr., dated November 22, 1952, pertaining to Dr. Blair's examination and treatment of the plaintiff. The plaintiff had testified that he did not remember exactly when he went to see Dr. Blair; that it was probably four, five or six months, but not as much as a year subsequent to June 1951.

The plaintiff contends that Exhibit F was hearsay and was not sufficiently qualified to justify its admission as evidence under the Business Records as Evidence Law, Secs. 490.660-490.690. Celia Brody, an employee of Dr. Blair, produced the record and testified that she was familiar with the way the records were kept in Dr. Blair's office; that Exhibit F was kept in the regular course of business in the operation of Dr. Blair's office; that she recognized Dr. Blair's handwriting on the record card; that the events recorded were entered at or about the time they took place just like any other business record; that the records in the doctor's office are kept in the ordinary course of business by recording the event they reflect at or about the time it took place. On cross-examination the witness testfied that she had worked for Dr. Blair for one month and was not so employed on the date of the record; that she had no personal knowledge as to how the records were kept or in what manner they were made up in 1951 and 1952; that she recognized the doctor's handwriting on the card but did not know of her own knowledge who wrote the remainder of it but had been told that it was the doctor's nurse; that she did not know of her own knowledge under what circumstances it was written; that the exhibit contained two kinds of handwriting and also typewriting; and that Dr. Blair was then in his office.

Section 490.680 provides that the record of an act, condition of event, shall be competent, insofar as relevant, (1) if the custodian or other qualified witness testifies to its identity and the mode of its preparation; and (2) if the record was made in the regular course of business, at or near the time of the act, condition or event; and (3) if, in the opinion of the court, the sources of information, method and time of preparation were...

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