Sigman v. Kopp, 49902
| Decision Date | 11 May 1964 |
| Docket Number | No. 1,No. 49902,49902,1 |
| Citation | 378 S.W.2d 544 |
| Parties | Geneva Asbridge SIGMAN, Appellant (Plaintiff), v. Carrie KOPP (Huff), and R. B. Manley, Executor of the Estate of Emil Charles Schramm, deceased, Respondents (Defendants) |
| Court | Missouri Supreme Court |
Thomas B. Maloney, William L. Mason, Jr., St. Louis, for appellant.
E. L. McClintock, Jr., Flat River, for respondent R. B. Manley, Executor of the Estate of Emil Charles Schramm, Deceased.
Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, for respondent Carrie Kopp (Huff).
WELBORN, Commissioner.
This is an action for damages for personal injuries sustained by plaintiff, Geneva Asbridge Sigman, as a result of an automobile collision involving the vehicle in which Mrs. Sigman was a passenger and driven by defendant Carrie Kopp (Huff), a second vehicle driven by defendant R. B. Manley's decedent, Emil Charles Schramm, and a third vehicle driven by Leroy Alvin Blain. Blain was a party defendant in the action, but it was dismissed as to him for lack of service of process. A jury in the St. Francois County Circuit Court returned a verdict for defendants. After an unsuccessful motion for new trial, plaintiff appealed. In view of her prayer for damages in the amount of $75,000, we have jurisdiction of the appeal.
The incident out of which this litigation arose occurred at around 8:00 A.M., September 11, 1959, on U. S. Route 67 in St. Francois County, some 2 miles north of Farmington, near the entrance to Parkview Cemetery. At this point, Highway 67 was an 18-foot, 2-lane concrete highway, running generally north and south. There was a 9-foot shoulder on the west side. On the east side of the highway, the entrance to the cemetery provided a shoulder of some 30 feet in width. In the southbound lane of the highway there was a yellow line indicating a no-passing zone because of a fairly steep hill cresting from 200 to 250 feet to the south of the beginning of the line and a curve.
Just before the collision, the Blain vehicle was following the Kopp car as both proceeded south on Route 67. Blain pulled into the northbound lane and started to pass the Kopp car. As he did so, the vehicle driven by Mr. Schramm came into view, proceeding northwardly in the northbound lane, just at the crest of the hill. The Blain car overtook the Kopp car and turned back into the southbound lane. In doing so, it struck the Kopp car. Mrs. Kopp was unable to control the vehicle and it ran off the highway into a tree on the east side of the highway, with injury resulting to plaintiff.
Schramm endeavored to steer his vehicle onto the shoulder on the east side of the highway. However, the Blain car struck the left rear fin of the Schramm car before it got completely off the highway. Whether the Blain car struck the Kopp or Schramm vehicle first was a question on which testimony differed.
The highway patrolman who investigated the accident found damage to the Blain car on the left front and the right side near the front door. The Kopp car was damaged on the left side at 'approximately the middle of the car.' The damage to the Schramm vehicle was on the back part of the left rear fender.
Debris was found in two places on the highway. One pile was on the east edge of the highway and the other in the center, mostly on the south bound lane. The second pile of debris was a few feet south of the first. The debris was approximately 150 feet from the north end of the no-passing zone in the southbound lane and some 100 feet from the crest of the hill.
Plaintiff's claim was submitted to the jury on instructions charging negligence on the part of Kopp and Schramm in failing to maintain a careful and vigilant lookout and, as a result, failing to see the other vehicles involved in time to avoid the collision by slackening speed and turning. Defendants submitted in separate instructions the defense of the negligence of Blain as the sole cause of the accident. As stated above, the jury returned a verdict for defendants.
On this appeal, two points are raised as error on the part of the trial court. The first relates to testimony of Trooper Darwin James concerning a statement by the deceased Schramm at the scene of the collision. The Trooper, a witness for plaintiff, testified that he investigated the accident. On direct examination, he testified, without objection, that he had interrogated Mrs. Kopp after the accident at a hospital in Bonne Terre and that she stated: 'It all happened so fast I don't know just what did happen.' He also testified that he talked to Blain who stated:
On cross-examination by counsel for defendant Kopp, the Trooper was asked whether he talked to Mr. Schramm at the scene of the collision. Upon his answering affirmatively, the Trooper was asked: 'And did you ask him about what took place and what happened with respect to this accident and what caused it?' Counsel for plaintiff objected on the grounds that, by reason of the death of Schramm, he could not be cross-examined as to any statement he had made. Counsel for defendant Manley objected on the basis of the Dead Man's Statute. Counsel for Kopp contended that the statement was admissible as an admission against interest. The court overruled the objections and permitted the Trooper to testify. The testimony was that Schramm said:
In her motion for new trial, plaintiff contended that the admission of this testimony was error because 'said Schramm was deceased and could not be cross-examined with respect to said statement and the Plaintiff was prohibited from testifying as to the negligence of said deceased.'
On this appeal, plaintiff contends that admission of the testimony was erroneous because '(A) The question called for hearsay; (B) The question came within no exception to the hearsay rule, since no foundation was laid to show that an answer given could have been a verbal act or a part of the res gestae; (C) The question clearly admitted of an answer which would be a self-serving declaration on the part of Schramm; (D) The question violated the rule requiring...
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