Ruppel v. Clayes

• Decision Date: 26 June 1934
• Docket Number: No. 22755.,22755.
• Citation: 72 S.W.2d 833
• Parties: EDWARD RUPPEL, RESPONDENT, v. GEORGE CLAYES, APPELLANT.
• Court: Missouri Court of Appeals

72 S.W.2d 833

EDWARD RUPPEL, RESPONDENT, v. GEORGE CLAYES, APPELLANT.

No. 22755.

St. Louis Court of Appeals. Missouri.

Opinion filed June 26, 1934.

Appeal from the Circuit Court of City of St. Louis. — Hon. John W. Calhoun, Judge.

REVERSED AND REMANDED (with directions).

Green, Henry & Remmers for appellant.

(1) Damages recoverable in an action for personal injuries in the absence of prayer for punitive damages are limited to compensation for injuries actually received. 8 R.C.L., sec. 8; Neff v. Cameron, 213 Mo. 350; Shohoney v. Railroad, 231 Mo. 131; Joblonowski v. Modern Mfg. Co., 251 S.W. 477; Grant v. Railroad, 130 S.W. 80; McQuary v. Railroad, 306 Mo. 697; Waechter v. Railroad, 113 Mo. App. 270. (2) The usual practice is to exclude evidence of admitted facts. Beckerleg v. Ins. Co., 274 S.W., l.c. 921; Smith v. Brougher, 274 S.W. 532; Ainsworth v. Hutchinson, 42 Vt., l.c. 507; Conlin v. Osborne, 161 Calif. 659; Cunningham v. Smith, 70 Pa. 450; Ewing v. Phillips, 35 Mo. App. 144; Daly v. Sovereign Camp, 55 S.W. (2d) 743. (3) Evidence cannot be offered for the purpose of affecting the credibility of a witness before the witness has been called to testify. 40 Cyc. 2563; Mullin v. Cottrell, 41 Miss. 291; Davis v. Evans, 14 N.Y. 636. (4) Where liability for injuries is admitted only such evidence should be admitted as relates to the nature and extent of the injuries received and not of aggravating circumstances which do not pertain to the injuries. State ex rel. v. Ellison, 278 Mo. 649; Tavis v. Bush, 280 Mo. 383; Conlin v. Osborne, 161 Calif. 659; Cunningham v. Smith, 70 Pa. 450; Ewing v. Phillips, 35 Mo. App. 144; Daly v. Sovereign Camp, 55 S.W. (2d) 743. (5) As liability was admitted evidence of defendant's alleged intoxication was no more admissible than evidence of plaintiff's intoxication would have been in the absence of a plea of contributory negligence because having no bearing on the extent of the injuries. Glasgow v. Railroad, 191 Mo. 347; Carrolton v. Railroad, 106 S.W. 1100. (6) Evidence of alleged intoxication after the admission of liability was collateral to the main issue left in the case and constituted unduly prejudicial evidence. Jones on Evidence, sec. 137; Galveston Ry. v. Smith (Tex.), 24 S.W. 668; Russell v. Hearns, 113 N.C. 361; Cunningham v. Smith, 70 Pa. 450; Critzer v. Donovan, 289 Pa., l.c. 385; Wigmore on Evidence, 1904. (7) Evidence of defendant's alleged intoxication where the liability was admitted was no more relevant or proper than evidence of defendant's pecuniary condition or of plaintiff's pecuniary or domestic status, which would be improper. State ex rel. v. Ellison, 278 Mo. 649; Bowles v. Railroad, 271 S.W. 851. (8) Prejudice is presumed from the admission of incompetent or prejudicial evidence. Langston v. Elec. Co., 147 Mo. 457; Engineering Co. v. Ice Co., 172 S.W. 417; Aronovitz v. Arky, 219 S.W. 620; Damson v. Shannon, 225 Ky. 635. (9) The verdict was so excessive as to show that it was the result of prejudice against defendant and indicated that the jury, in fact, added punitive damages to plaintiff's actual damages, and clearly indicated that the evidence of intoxication influenced the result. Erxleben v. Kaster, 21 S.W. (2d), l.c. 199; Dent v. Springfield Traction Co., 129 S.W. 1044; Clark v. R.R., 324 Mo. 406; Foulks v. Lehman, 17 S.W. (2d) 994. (10) Where a verdict is evidently influenced by passion or prejudice it should be reversed. Traw v. Heydt, 216 S.W. 1009; Beck v. Galloway Co., 239 S.W. 166; Felts v. Spesia, 61 S.W. (2d) 402; Neff v. Cameron, 213 Mo. 350.

Walter F. Stahlhuth and Allen, Moser & Marsalek for respondent.

(1) It does not lie in the power of one party to prevent the introduction of relevant evidence by admitting the fact which such evidence tends to prove. A party is not bound to take his adversary's admissions. Plaintiff's right to present his proof to the jury, in his own way, subject to the rules of evidence, was a substantial and important one and defendant's admissions could not deprive him of it. Baumier v. Anteau, 79 Mich. 509, 44 N.W. 939; Dunning v. Maine Cent. R. Co., 91 Me. 87, 39 Atl. 352; Clayton v. Brown, 30 Ga. 490; Stevens v. Citizens Gas & Elec. Co., 123 Iowa, 597, 109 N.W. 1090; Terre Haute Elec. Co. v. Kieley, 35 Ind. App. 180, 72 N.E. 658; Priest v. Groton, 103 Mass. 530; Branner v. Nichols, 59 Pac. 633, 61 Kan. 356; Webster v. P.W. Moore & Son, 108 Md. 572, 71 Atl. 466; Maloney v. Rys. Co. (Mo. Sup.), 237 S.W. 509; Henderson v. Ball, 193 Iowa, 812, 186 N.W. 668; Kimball v. Vroman, 35 Mich. 310; Whiteside v. Loney, 171 Mass. 431, 50 N.E. 931; Jno. Hancock Life Ins. Co. v. Moore, 34 Mich. 41; Easley L. & P. Co. v. Power Co., 172 Mich. 78; 64 Corpus Juris, p. 112; 22 Corpus Juris, p. 330. (2) The verdict is not excessive. Brucker v. Gambaro (Mo. Sup.), 9 S.W. (2d) 918; Christopher v. Railroad Co. (Mo. Sup.), 55 S.W. (2d) 449; Kleinlein v. Foskin (Mo. Sup.), 13 S.W. (2d) 648; Powell v. Kansas City Rys. Co. (Mo. Sup.), 226 S.W. 916; Morris v. Mo. Portland Cement Co. (Mo. Sup.), 19 S.W. (2d) 865; Jackman v. Ry. Co. (Mo. Sup.), 231 S.W. 978; Koonse v. Standard Steel Works Co., 221 Mo. App. 1231; Crain v. Railroad Co., 208 S.W. 471.

McCULLEN, J.

This is a suit for damages for personal injuries alleged to have been sustained by respondent, plaintiff below, as the result of negligence of appellant, defendant below. A trial before the court and a jury resulted in a verdict for plaintiff and against defendant in the sum of $6,000. Defendant appeals.

Defendant complains that the court erred in permitting plaintiff's counsel, over defendant's objection, to tell the jury in his opening statement that he expected to show that defendant was under the influence of liquor at the time of the accident in question, after defendant's counsel had told the court, out of the hearing of the jury, that he would admit defendant's liability in the case and would object to any reference to intoxicating liquor.

Defendant further complains that the court erred in permitting plaintiff, over the objection of defendant, to introduce evidence indicating that the defendant was under the influence of liquor at the time of the accident. In support of his contentions defendant argues that inasmuch as liability was admitted at the start of the case, the evidence complained of had no bearing on the extent of plaintiff's injuries, or the amount of damages to be awarded, and since there was no prayer for punitive damages in plaintiff's petition, such opening statement and such evidence were only calculated to inflame and prejudice the jury against defendant.

Prior to the voir dire examination of the jurors, counsel for both parties conferred with the court, out of the hearing of the jury. During this conference, counsel for defendant, after admitting that an insurance company was interested in the defense of the case, and naming the company, said:

"Furthermore, I am going to admit liability, and limit the thing to the actual damage. Now, then, the pleadings allege that this defendant had been drinking — George Clayes had been drinking prior to this accident. I don't think he was intoxicated and, therefore, I am going to admit liability and object to any testimony of intoxication as not bearing upon the question of injury, the question of negligence being admitted."

Counsel for plaintiff thereupon declined to agree with the view of defendant's counsel as to the admissibility of evidence of defendant's intoxication. Thereafter, when the jury had been impaneled in the usual manner, plaintiff's counsel, in his opening statement to the jury, described the scene of the accident and told the jury what plaintiff's evidence would show with respect to the manner in which the accident happened. During the course of this statement, Mr. Moser, plaintiff's counsel, said:

"The evidence will show, this, as possibly an explanation for the manner in which this accident happened, that Mr. Clayes was under the influence of liquor at the time that it occurred."

Whereupon, Mr. Henry, counsel for defendant, said: "Just a minute. If the court please, I want to note my objection to the remarks for the reason that we have previously stated, we are going to admit liability. There can be no purpose in the remarks except to inflame the jury."

A little farther on in plaintiff's opening statement the following occurred:

"MR. MOSER: The evidence will show, gentlemen, that while they were still out there at the scene of the accident Mr. Clayes was observed to stagger. He got out of his automobile once or twice during the time these other people were making an effort to get his automobile out of the ditch. His breath smelled of whiskey, and during the time that he was down here at that filling station —

"MR. HENRY: Pardon me. It will be understood my objection goes to all that type —

"THE COURT: Yes, Mr. Henry.

"MR. HENRY: And I except.

"MR. MOSER: And on the way down then, to the doctor, Mr. Clayes was telling Mr. Ruppel what a good fellow he was, and he said, `You are a brick;' and he said, `You are a prince;' and he said, `I knew your mother and I knew your grandmother,' and all things like that. The fact was he was a total stranger to him. He had never seen this man before, much less his grandmother; and eventually, after a few pleasantries of that sort, why Mr. Ruppel did manage to get to a doctor, an hour or more after this thing happened, and got medical treatment."

Plaintiff's petition charged that while defendant was operating his automobile near plaintiff's home at Ballwin, St. Louis County, Missouri, he ran said automobile into a ditch, and thereafter requested plaintiff to assist him in removing it therefrom, which plaintiff did, by procuring his own automobile, attaching a rope thereto and pulling defendant's automobile out of the ditch; that after plaintiff had removed defendant's automobile from the ditch, plaintiff was in the act of removing the rope...