State ex rel. Berberich v. Haid

• Decision Date: 28 October 1933
• Docket Number: 32393
• 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

333 Mo. 1224

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

October 28, 1933

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. Railrod 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.

Everett 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.

OPINION

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.

We find from the opinion of the respondents that at the trial of the case in the circuit court Claude Benton testified on behalf of the plaintiff. A statement signed by him and dated February 21, 1930, was produced that contradicted his testimony given at the trial. To rehabilitate his testimony the trial court permitted statements from a deposition given by the witness to be read in evidence. The deposition was taken the Saturday before the trial began in the circuit court and was, therefore, subsequent to the statement of February 21, 1930. It was the relator's contention that the reading of statements from the deposition was error, and the respondents held that it was error, but not prejudicial, and refused to reverse the judgment of the trial court. That part of the opinion which disposed of this question reads as follows:

"The next insistence of the defendant is that the court erred in permitting counsel for plaintiff to read from the deposition of the witness Claude Benton, taken on the Saturday preceding the date of the trial, on the theory that it tended to rehabilitate his testimony at the trial as against a statement alleged to have been signed by him February 21, 1930, shortly after the happening of the accident. The court was undoubtedly in error in permitting statements from the deposition to be introduced because, under the authorities, the rehabilitating evidence must be testimony which preceded that of the impeaching evidence. [State v. Creed, 299 Mo. l. c. 317, 252 S.W. 678, and cases cited; Steele v. Kansas City Sou. Ry. Co., 302 Mo. 207, 257 S.W. 756; Flach v. Ball, 209 Mo.App. l. c. 400, 240 S.W. 465; Jones v. St. Louis-San Francisco Ry. Co. (Mo.), 253 S.W. 737, l. c. 741.] The fact that the court erred in this respect need not necessarily result in a reversal on account thereof unless we can say that its admission so prejudiced the case of defendant as to have resulted in a denial to him of a fair and impartial trial. [State v. Maggard, 250 Mo. l. c. 346, 157 S.W. 354.] We find in the present case that two witnesses testified, in effect, that the motorcycle was seventy-four feet east of where the plaintiff was struck, so that the jury had ample evidence from which to find that the driver of the motorcycle had sufficient opportunity, after he saw or should have seen the plaintiff, to have stopped his motorcycle before striking her. Therefore, since there was ample evidence to sustain such a finding, irrespective of the testimony of Claude Benton, we can see no possibility of defendant having been prejudiced by the error in admitting the objectionable deposition in evidence."

The cases relied upon by relator, as announcing a rule which the Court of Appeals did not follow, are the following: State v. Creed, 299 Mo. 307, 252 S.W. 678; Jones v. Ry. Co. (Mo.), 253 S.W. 737; State v. Sharp, 183 Mo. 715, 82 S.W. 134; State v. Taylor, 134 Mo. 155, 35 S.W. 92; State v. Grant (Mo.), 79 Mo. 113; State v. Tippett, 317 Mo. 319, 296 S.W. 132; State v. Emma, 324 Mo. 1223, 26 S.W.2d 781; State v. Hatfield, 72 Mo. 518; State v. Ashbrook (Mo.), 11 S.W.2d 1037; State v. Whelehon, 102 Mo. 17, 14 S.W. 730; State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722.

In the case of State v. Creed, supra, an opinion by Davis, C., we said:

"The supplementary statement was again inadmissible, for that it was made subsequent to the testimony by which the witness was impeached. Such testimony may not be used to import verity. Out of such procedure would arise corruption and perjury. It would tend to defeat the ends of justice, by supporting the faltering testimony of a discredited, impeached, or perjured witness. Admitting such testimony would resolve itself in a race resulting in rebuttal and surrebuttal, to determine which party could produce the greater number of witnesses in contradiction. This would not determine their credibility and would lead to injustice."

In the case of State v. Tippett, supra, an opinion by Davis, C., we said:

"We are unable to definitely determine from the recital whether the rehabilitating evidence shown in the testimony of Mrs. Pretzsch occurred before or after the promise of quasi-immunity, although there were questions asked from which it might possibly be surmised that the conversation occurred before motive to fabricate became apparent. Be that as it may, no facts...