State ex rel. Berberich v. Haid, 32393.

• Decision Date: 28 October 1933
• Docket Number: No. 32393.,32393.
• Citation: 64 S.W.2d 667
• Parties: STATE OF MISSOURI EX REL. WILLIAM BERBERICH, Doing Business As BERBERICH DELIVERY CO., Relator, v. GEORGE F. HAID, WILLIAM DEE BECKER and SIMON G. NIPPER, Judges of the St. Louis Court of Appeals.
• Court: Missouri Supreme Court

64 S.W.2d 667 STATE OF MISSOURI EX REL. WILLIAM BERBERICH, Doing Business As BERBERICH DELIVERY CO., Relator,
v.
GEORGE F. HAID, WILLIAM DEE BECKER and SIMON G. NIPPER, Judges of the St. Louis Court of Appeals. No. 32393. Supreme Court of Missouri, Division 2. October 28, 1933.^*

Certiorari.

RECORD QUASHED.

Leahy, Saunders & Walther and J.L. London for relator.

(1) The rule of rehabilitation does not extend to statements made subsequent to the statements used in impeachment; it only applies to previous statements. State ex rel. v. Ellison, 270 Mo. 655; State v. Creed, 299 Mo. 317, 252 S.W. 678; Jones v. Ry. Co., 253 S.W. 737; State v. Sharp, 183 Mo. 736, 82 S.W. 134; State v. Taylor, 134 Mo. 155, 35 S.W. 92; State v. Grant, 79 Mo. 113; State v. Tippett, 317 Mo. 319, 296 S.W. 132; State v. Emma, 324 Mo. 1223; State v. Hatfield, 72 Mo. 518; State v. Ashbrook, 11 S.W. (2d) 1037; State v. Whelehon, 102 Mo. 17, 14 S.W. 730. (a) The Court of Appeals, by merely holding that the conflicting error is harmless, cannot preclude a review by the Supreme Court. State ex rel. v. Ellison, 270 Mo. 655. (b) The introduction of improper evidence is presumed to be prejudicial. State ex rel. v. Ellison, 270 Mo. 645; Langston v. Railroad Co., 147 Mo. 457. (2) It is error to inject the issue of contributory negligence into the case in an instruction where it is not pleaded either in the petition or answer, or where no evidence on the issue is introduced, especially when this is the only instruction on the theory of the case. (Plaintiff's humanitarian instruction provided, "even though you further find from the evidence that plaintiff was herself negligent," etc.) Degonia v. Railroad, 224 Mo. 590; Benjamin v. Railroad Co., 245 Mo. 598; Riley v. City of Independence, 258 Mo. 671; Collett v. Kuhlman, 243 Mo. 585, 147 S.W. 965; Allen v. Mo. Pac. Ry. Co., 294 S.W. 80. (3) It is error to instruct on abstract propositions of law. Strickland's Heirs v. McCormick's Heirs, 14 Mo. 166; Benjamin v. Street. Ry. Co., 133 Mo. 274, 34 S.W. 590. (4) The opinion on its face, while in form recognizing the decisions of the Supreme Court, yet in fact ignores these decisions by holding they are harmless and therefore is in conflict with Section 6 of Article VI of the Constitution of Missouri, providing that where any one of the judges deems the decision contrary to previous decisions of any one of the Courts of Appeal or the Supreme Court, the Court of Appeals must, of its own motion, certify and transfer said cause or proceeding to the Supreme Court, which must rehear and determine the said cause or proceeding, as in case of jurisdiction obtained by ordinary appellate process; that the last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said Courts of Appeals. (5) It was error to submit the issue of stopping under the humanitarian rule, Goodson v. Schwandt, 318 Mo. 669; Rollinson v. Railroad Co., 252 Mo. 541.

Everell Hullverson and Staunton E. Boudreau for respondents.

(1) The opinion of respondents, holding that if error it was harmless error under the circumstances for the trial court to admit in evidence the rehabilitating deposition of witness Claude Benton, announced no ruling contrary to this court's pronouncements, nor does it reach a legal conclusion contrary to this court's rulings upon the same or similar facts. What respondents have held here in their opinion is that evidence was erroneously admitted by the trial court, but, considered along with the other evidence properly admitted on the same issue, found the error in admitting this evidence to be harmless because there was ample other evidence to sustain the finding of the jury on the same issue and that defendant (relator) could not possibly have been prejudiced by the objectionable evidence. In this respect respondents' opinion is not in conflict with the controlling decisions of this court. It is in accord with such controlling decisions. R.S. 1929, secs. 821, 1062; State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 724; Irwin v. St. L.-S.F. Ry. Co., 30 S.W. (2d) 59, 325 Mo. 1019. (2) The opinion of respondents, holding that the inclusion of the issue of contributory negligence in plaintiff's humanitarian instruction was improper and that it ought not to have been included, but that it was not so prejudicial as to warrant reversal of the judgment, announced no rule of law contrary to the pronouncement of this court and does not reach a legal conclusion contrary to this court's rulings upon the same or similar facts. Plaintiff's principal instruction does not include the issue of contributory negligence. Silliman v. Munger Laundry Co., 44 S.W. (2d) 161.

TIPTON, J.

Original proceedings in certiorari. Relator seeks to quash the record and judgment of the St. Louis Court of Appeals in the case of Mabel Quinn, an infant, by Emma Quinn. Her Next Friend, plaintiff, v. William Berberich, doing business as the Berberich Delivery Company, and reported in 51 S.W. (2d) 153. Plaintiff filed suit in the Circuit Court in the City of St. Louis against relator to recover damages alleged to have been sustained by her through the operation of a motorcycle of the relator. The case was submitted to the jury solely under the humanitarian doctrine. The trial in the circuit court resulted in a judgment of $5000 against the relator, which was affirmed by the St. Louis Court of Appeals.

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