State ex rel. S. S. Kresge Co. v. Shain

• Decision Date: 23 December 1936
• Docket Number: 34559
• Citation: 101 S.W.2d 14,340 Mo. 145
• Parties: State of Missouri at the relation of S. S. Kresge Company, a Corporation, Relator, v. Hopkins B. Shain, Francis H. Trimble and Ewing C. Bland, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

101 S.W.2d 14

340 Mo. 145

State of Missouri at the relation of S. S. Kresge Company, a Corporation, Relator, v. Hopkins B. Shain, Francis H. Trimble and Ewing C. Bland, Judges of the Kansas City Court of Appeals

No. 34559

Supreme Court of Missouri

December 23, 1936

Rehearing Granted, Reported at 340 Mo. 145 at 156.

Opinion filed at May Term, 1936, August 20, 1936; motion for rehearing filed; motion overruled at September Term, December 23, 1936.

Opinion of the Court of Appeals quashed.

Wayne Ely, John H. Lathrop, John N. Monteith and James F Walsh for relator; Leahy, Walther, Hecker & Ely of counsel.

(1) The opinion and decision of the Kansas City Court of Appeals in holding that the trial court did not commit reversible error in admitting into evidence the written statement of Ruth Dresser, is in direct conflict with the controlling decisions of this court. (a) Ruth Dresser's statement was made at her home three months after the accident; she was not authorized to make a statement and it was not made in performance of any duty of employment; was not part of the res gestae and was apparently based on hearsay. (b) She was not a witness to the accident, did not testify at the trial, and her said statement which was based on hearsay, was made in response to inquiries, was a mere narrative of a past transaction, and was clearly inadmissible. (c) The said statement of Ruth Dresser was received into evidence as substantive proof of negligence. Redmon v. Met. St. Ry Co., 185 Mo. 1, 84 S.W. 26; State ex rel. Kurz v. Bland, 64 S.W.2d 638; State ex rel. v. Reynolds, 277 Mo. 14, 208 S.W. 618; State ex rel. v. Daues, 19 S.W.2d 700; Williams v. K. C. Term. Ry. Co., 288 Mo. 11, 231 S.W. 954; Wallingford v. Terminal Railroad Assn., 88 S.W.2d 361. (2) The opinion and decision of the Kansas City Court of Appeals in holding that the trial court did not commit reversible error in admitting into evidence the written statement of Lonnie Wilkins is in direct conflict with the controlling decisions of this court. (a) Lonnie Wilkins' statement was made without authority from defendant; was made at his home three months after the accident; was not part of the res gestae and was not made in the scope of his employment nor in performance of any duty owed by him to defendant. (b) Wilkins was not a witness to the accident, and did not testify at the trial. His statement was made in response to inquiries, was full of conclusions, was based on hearsay, and amounted to nothing more than a mere narrative of a past transaction. (c) The statement of Lonnie Wilkins was received into evidence as proof of negligence. Redmon v. Met. St. Ry. Co., 185 Mo. 1, 8 S.W. 26; State ex rel. Kurz v. Bland, 64 S.W.2d 638; State ex rel. v. Reynolds, 277 Mo. 14, 208 S.W. 618; State ex rel. v. Daues, 19 S.W.2d 700; Williams v. K. C. Term. Ry. Co., 288 Mo. 11, 231 S.W. 954; Wallingford v. Terminal Railroad Assn., 88 S.W.2d 361. (3) The opinion of said Kansas City Court of Appeals, wherein it holds that it was not reversible error for the trial court to overrule the objections of the defendant to the argument of plaintiff's counsel and to refuse to declare a mistrial because of such argument, is in direct conflict with the controlling decisions of this court. Atkinson v. United Rys. Co., 286 Mo. 534, 228 S.W. 483; Monroe v. Railroad Co., 297 Mo. 633, 249 S.W. 644; Beer v. Martel, 55 S.W.2d 482; Norris v. Ry. Co., 239 Mo. 695, 144 S.W. 783; Cook v. Globe Ptg. Co., 227 Mo. 471; Olian v. Olian, 59 S.W.2d 673. (4) Where a written document in the case is referred to in the opinion, such document is as much a part of the opinion as if fully written out therein and will be considered by the Supreme Court on proceedings in certiorari. State ex rel. Kansas City v. Ellison, 281 Mo. 667, 220 S.W. 498; State ex rel. Hirsch v. Allen, 274 S.W. 353; State ex rel. Locke v. Trimble, 298 S.W. 782; State ex rel. Talbott v. Shain, 66 S.W.2d 826.

Trusty & Pugh, Roy W. Rucker and Guy W. Green, Jr., for respondents.

(1) The Court of Appeals did not commit reversible error in admitting into evidence the written statements of Ruth Dresser and Lonnie Wilkins because: (a) Such statements were competent evidence to show knowledge of the dangerous condition of defendant's floor by those charged with the duty of keeping the kitchen and the floor thereof clean. 22 C. J. 284; 1 R. C. L., p. 510; Wainwright v. Westborough Country Club, 45 S.W.2d 86; Fisher v. Pullman Co., 254 S.W. 114; Yarbrough v. Wis. Lbr. Co., 211 S.W. 713; Pulsifer v. Albany, 47 S.W.2d 233; State ex rel. v. Hostetter, 85 S.W.2d 743; O'Leary v. Scullen, 260 S.W. 55; Laudwig v. Cent. Mo. P. & L. Co., 24 S.W.2d 625. (b) Relator waived its right to object to this evidence because the objections were not based on proper reasons. O'Leary v. Scullen, 303 Mo. 363, 260 S.W. 61; Bowman v. Anderson, 268 Mo. 1, 186 S.W. 1017. (c) The statement of Ruth Dresser was competent as an admission against interest because she was still a defendant in the case at the time it was offered. Lanham v. Vesper-Buick Co., 21 S.W.2d 893. (d) The statements being competent for one or more purposes it would have been error to exclude them, and it was defendant's duty to limit their application by instruction, which was not done. Thompson v. Lamar, 17 S.W.2d 960; Wagner v. Binder, 187 S.W. 1159; Standard Milling Co. v. White, 122 Mo. 258, 26 S.W. 707; Cazzell v. Schofield, 8 S.W.2d 590; Willgues v. Railroad Co., 298 S.W. 826; Kirkpatrick v. Met. St. Ry. Co., 109 S.W. 686; Staebier v. St. L. Transit Co., 102 S.W. 656. (e) Lonnie Wilkins' statement was merely cumulative. Adams v. Ry. Co., 229 S.W. 797; Farmers Loan Co. v. Surety Co., 226 S.W. 936. (2) The argument of counsel for the plaintiff was not improper and would not require a reversal. (a) The argument as to the amount spent by defendant for plaintiff's treatment and that such conduct showed a guilty conscience was not reversible error, because the evidence showed defendant paid for extensive doctor bills and hospitalization, and the argument was logically inferred from such evidence Goyette v. Frisco, 37 S.W.2d 552, and defendant's counsel did not request that plaintiff's counsel be rebuked and except to the ruling thereon or ask the discharge of the jury. Norris v. Ry. Co., 144 S.W. 790; Anderson v. Sutton, 293 S.W. 773, and the court directed Mr. Rucker to argue the evidence and instructed the jury to be guided by the evidence, which was sufficient to overcome prejudice, if any, in the argument. Rockenstein v. Rogers, 31 S.W.2d 792; Cullen v. Johnson, 29 S.W.2d 39; Kamer v. Ry. Co., 32 S.W.2d 1075; Warren v. Guidici, 50 S.W.2d 634; Cordray v. City, 65 S.W.2d 938. (b) The argument that Kresge's treasury balance would not compensate plaintiff for his experiences was not error, because the jury was told they could not do this and there was no evidence of defendant's treasury balance, and the court told the jury not to consider it. Norris v. Ry. Co., 144 S.W. 783; Rockenstein v. Rogers, 31 S.W.2d 792; Cullen v. Johnson, 29 S.W.2d 39; Kamer v. Ry. Co., 32 S.W.2d 1075; Warren v. Guidici, 50 S.W.2d 634; Cordray v. City, 65 S.W.2d 938.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Relator seeks, by this proceeding, to quash the record and opinion of the Kansas City Court of Appeals in the case of David Garnett v. S. S. Kresge Company, reported in 85 S.W.2d 157, on the theory that the opinion is in conflict with controlling decisions of this court.

The opinion deals with a number of questions, only three of which were assailed by relator. The first two pertain to the question of the admissibility of written statements made by employees of the Kresge Company, and the third deals with the argument made to the jury by counsel for Garnett. The statement of the facts of the case, as made by the Court of Appeals, and a part of the opinion disposing of the admissibility of the written statements of the employees read as follows:

"This is a suit for damages for personal injuries. There was a verdict and judgment in favor of plaintiff in the sum of $ 10,000.00. Of the judgment, plaintiff remitted $ 2,500.00 resulting in a final judgment in his favor for $ 7,500.00. Defendant has appealed.

"The facts show that plaintiff was injured on September 26, 1932, by stepping and falling on some grease upon the floor of the kitchen in defendant's 'Dollar' store in Kansas City. Plaintiff was employed by defendant as a cook and he and Ruth M. Dresser, another employee of the defendant, had charge of the kitchen and soda fountain in said store. When plaintiff was out she was in charge. Lonnie Wilkins was one of the colored porters in the kitchen who reported to the plaintiff. It was the duty of Wilkins to keep the kitchen, including the floor thereof, clean.

"The suit was originally filed against Louis B. Kittinger, the manager of the store. Later an amended petition was filed making Ruth M. Dresser and the present defendant, S. S. Kresge Company, parties defendant. At the close of plaintiff's evidence the court sustained a demurrer to the evidence as to Kittinger and Miss Dresser and the cause proceeded against the Kresge Company.

"Plaintiff testified that he was out of the kitchen for two hours and upon his return he slipped and fell; that he did not see the grease until after he fell but he then noticed it on his trousers and felt it on his hands; that 'it was all over my trousers; the whole side of my trouser's leg was saturated with grease.' No witness saw the plaintiff fall and none testified as to the fall or as to the facts or circumstances surrounding the occurrence. No witness testified as to how the grease got on the floor or how long it was there before the fall. However, plaintiff introduced in...