Steffen v. S.W. Bell Tel. Co.

• Decision Date: 14 December 1932
• Docket Number: No. 30031.,30031.
• Citation: 56 S.W.2d 47
• Parties: HELEN STEFFEN, a Minor, by ROSE STEFFEN, Her Next Friend, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation.
• Court: Missouri Supreme Court

56 S.W.2d 47

HELEN STEFFEN, a Minor, by ROSE STEFFEN, Her Next Friend, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation.

No. 30031.

Supreme Court of Missouri, Division 2.

December 14, 1932.

Appeal from Circuit Court of City of St. Louis. — Hon. William II. Killoren, Judge.

AFFIRMED.

John A. Moore and Roger D. Moore for appellant.

(1) In the above-numbered assignments of error the trial court sustained defendant's objections to questions put witnesses by plaintiff's counsel eliciting answers as to plaintiff's observed conduct and complaints bearing upon her physical condition at the time or shortly subsequent to the date on which she alleges her injuries were received, and before the institution of suit, and to offers of proof supplementing such questions, and the refusal of the trial court to allow their being answered. To each and every one of such rulings plaintiff's counsel duly excepted. It was reversible error for the trial court so to have ruled in each and every one of such instances. Partello v. Mo. Pac. Ry. Co., 217 Mo. 645, 117 S.W. 1140; Lindsay v. Kansas City, 195 Mo. 166, 93 S.W. 277; McHugh v. Transit Co., 190 Mo. 85, 88 S.W. 855; Osborne v. Wells, 211 S.W. 887; Schwanenfeldt v. Met. St. Ry. Co., 187 Mo. App. 588, 174 S.W. 143; Elliott v. Met. St. Ry., 157 Mo. App. 517, 138 S.W. 662; Fulton v. Met. St. Ry. Co., 125 Mo. App. 329, 102 S.W. 48; Benson v. Smith, 38 S.W. (2d) 749. (2) Entries made in purported payroll time sheets of a third party are hearsay and not lawfully read in evidence, over due objection, where it is not shown by way of preliminary foundation that the entries were (a) other than private memoranda of a non-commercial nature; (b) a part of the res gestae; (c) made against interest, in due course of business and without motive to falsify by a person since deceased, of unsound mind, out of the jurisdiction, or not to be found upon diligent search; (d) original, and made contemporaneously with the acts recorded; (e) known to be true within the knowledge of the person reading them, and (f) the best evidence. 4 Jones, Commentaries on the Law of Evidence (2 Ed.) sec. 1782, p. 3285; 22 C.J. sec. 1072; Hill v. Johnson, 38 Mo. App. 383; Owen v. Cardwell, 80 Mo. App. 526; Einstein v. Holladay-Klotz, etc., Co., 118 Mo. App. 184, 94 S.W. 296; Jungkind Photo Supply Co. v. Yates, 257 S.W. 820; Ridenour v. Wilcox Rives Co., 164 Mo. App. 576, 147 S.W. 852; Shirley v. So. Ry. Co., 198 Ala. 102, 73 So. 430; Railway Co. v. Henderson, 57 Ark. 402, 21 S.W. 878; Sill v. Reese, 47 Cal. 294; Butler v. Estrella Raisin Vineyard Co., 124 Cal. 239, 56 Pac. 1040; Chafee & Co. v. United States, 35 U.S. 517; Chicago Lumbering Co. v. Hewitt, 64 Fed. 314; Stidger v. McPhee, 15 Colo. App. 252, 62 Pac. 332; Treab v. Barbour, 7 Conn. 274; Union Bank of Florida v. Call, 5 Fla. 409; Bracken & Ellswoth v. Dillon & Sons. 64 Ga. 243; Coad v. Penna, Ry. Co., 187 Ga. 1025, 175 N.W. 344; Schwartz v. Southerland, 51 Ill. App. 175; Cairns v. Hunt, 78 Ill. App. 420; Baskett v. Rudy, 186 Ky. 208, 217 S.W. 112; Gus Dattilo Fruit Co. v. Railroad Co., 37 S.W. (2d) 856; Kaplan v. Gross, 223 Mass. 152, 111 N.E. 853; Atlas Shoe Co. v. Abraham Bloom, 209 Mass. 569; Thomas v. Price, 30 Md. 483; Swan v. Thurman, 112 Mich. 416; Carlton v. Carey, 83 Minn. 232, 86 N.W. 85; Jones v. Atl. Coast Line Railroad Co., 148 N.C. 449; Perrine v. Hotchkiss, 58 Barb. 77; Clark v. Bullock, 2 N.Y. 408; Irwing v. Claggett, 9 N.Y.S. 136; Shipman v. Glynn, 31 App. Div. 425, 52 N.Y. Supp. 691; Abele v. Falk, 28 App. Div. 191, 50 N.Y. Supp. 876; State Natl. Bank v. Wced, 39 App. Div. 602, 57 N.Y. Supp. 706; Leask v. Hoagland, 205 N.Y. 171, 98 N.E. 395; Falardeau v. W.H.H. Smith Co., 31 Ohio Cir. 649; Radtke v. Taylor, 105 Ore 559, 210 Pac. 863, 27 A.L.R. 1923, and note; Bockelcamp v. Lackawanna, etc., Railroad Co., 232 Pa. 66, 81 Atl. 93; McKeen v. Providence County Say Bank, 24 R.I. 542, 54 Atl. 49; Randle v. Barden, 64 S.W. 1063; Thrift & Edwards v. Holland, 183 S.W. 1189; Tautle Logging Co. v. Hammond Lumber Co., 78 Wash. 568; 139 Pac. 625. (3) Instruction 3 is prejudicially erroneous, as being argumentative, misleading and confusing, in the following particulars: Defendant was a large public service corporation with no competitors and a complicated organization and management. Hence, for the instruction to define ordinary care as regards such corporation to be "such care as a person of ordinary prudence would exercise (according to the usual and general experience of mankind) in the same situation and circumstances as those of the person or persons in this case ..." is for it improperly to assume (a) that the jury knows such a corporation is a person, and (b) that the jury has a proper standard of comparison or knowledge. Furthermore, to define ordinary care generally and without calling the jurors attention to particular acts or omissions shown in evidence, and which, under the law, constitutes negligence, is reversible error. Muldering v. Railroad Co., 116 Mo. App. 655, 94 S.W. 801; Lammert v. Wells, 13 S.W. (2d) 547; Turnbow v. Durham, 272 Mo. 53, 197 S.W. 103; Jordan v. Webber Moulding Co., 72 Mo. 325; Iron Mountain Bank v. Murdock, 62 Mo. 70; 38 Cyc. 1629. (4) Instruction 6 is prejudicially erroneous in that it uses two technical words — "insure" and "guarantee" — without defining them, and is argumentative in that it constitutes unwarranted comment, Lammert v. Wells, 13 S.W. (2d) 547; Turnbow v. Durham, 272 Mo. 53, 197 S.W. 103; Jordan v. Webber Moulding Co., 72 Mo. App. 325. (5) Instruction 7 was prejudicially erroneous, for the reasons that: (a) Its first sentence, in form and substance, is misleading; (b) the instruction as a whole ignores the proposition that plaintiff might recover only upon that part of her proof that she had suffered her alleged injuries in the way and circumstances obviously made out in her case, i.e., plaintiff is entitled to recover in a res ipsa loquitur case without proving negligence on the part of defendant, the circumstances of the injuries themselves being sufficient to raise the presumption of negligence, and (c) the instruction as a whole puts the burden of proof upon plaintiff. Milan Bank v. Richmond, 235 Mo. 532, 139 S.W. 352; Myers v. City of Independence, 189 S.W. 816; Carlson v. Kansas City, etc., Transit Co., 221 Mo. App. 537. (6) Instruction 9 is prejudicially erroneous, for the reasons that: (a) It twice uses the term, "as to such issue," without the word issue being defined, without its being used elsewhere in any of the instructions, or without its meaning and significance being ascertainable from any one or all the instructions. The instruction is obviously taken verbatim in part from a more complete instruction approved by this court, without its being remodeled to be intelligible to laymen. Hoyt v. Buder, 318 Mo. 1155, 6 S.W. (2d) 947; Miller v. Firemen's Ins. Co., 206 Mo. App. 475, 229 S.W. 261. (7) Instruction 10 is prejudicially erroneous, for the reasons that: (a) It made no explanation that a person giving evidence by deposition was a witness within the meaning of the term as used; (b) by the use of the mandatory word "will" it required the jury to take into consideration each and every one of the purported factors indicated by it; (c) by reason of the concluding phrase therein, "as well as all the other facts and circumstances given in evidence," it was too broad in scope, and it required the jury to consider evidence illegally admitted and to draw unwarranted inferences from testimony illegally excluded. 38 Cyc. pp. 1604, 1629 and 1630; Grawe v. Schmidt's Estate, 293 S.W. 375; Keeline v. Sealy, 257 Mo. 527, 165 S.W. 1088. (8) The court committed reversible error in giving, on behalf of defendant, Instructions 4, 5 and 7, and each of them, which conflicted with and were contrary to Instruction 1, and which were inapplicable to a res ipsa loquitur case, and to this case, (a) Upon the pleadings and abounding evidence in support thereof this case is a res ipsa loquitur case, and its theory, and only theory, is correctly stated in plaintiff's Instruction 1. Meade v. Mo. Water & Steam Supply Co., 300 S.W. 515; State ex rel. v. Allen, 259 S.W. 813, affirming 289 S.W. 583; Eckhardt v. Wagner Elec. Man. Co., 235 S.W. 117; Ash v. Woodward & Tiernan Printing Co., 199 S.W. 994; Myers v. City of Independence, 189 S.W. 816; Sheurer v. Rubber Co., 227 Mo. 347, 126 S.W. 1037; Price v. Met. St. Ry. Co., 220 Mo. 435, 119 S.W. 932; Von Treba v. Laclede Gaslight Co., 209 Mo. 659, 108 S.W. 561; Blanton v. Dold, 109 Mo. 64, 18 S.W. 1149; Kneemiller v. American Car & Foundry Co., 291 S.W. 506; Stroud v. Booth Cold Storage Co., 285 S.W. 165; Miller v. Walsh Fire Clay Products Co., 282 S.W. 141; Kuether v. Kansas City L. & P. Co., 276 S.W. 105; Joyce v. Mo. & Kan. Tel. Co., 211 S.W. 900; Warren v. Mo. & Kan. Tel. Co., 196 Mo. App. 549, 196 S.W. 1030. (b) The giving of an instruction and instructions expressing different and inconsistent views of the same matter, and conflicting with an instruction correctly setting out the proper theory of the case under the pleadings and evidence — in the instant case the only proper theory being that of res ipsa loquitur — is reversible error. Zumwalt v. Chicago & A. Railroad Co., 266 S.W. 717; Sommer v. Continental Portland Cement Co., 295 Mo. 519, 246 S.W. 212; Orris v. Chicago, R.I. & P. Ry. Co., 279 Mo. 1, 214 S.W. 124; Harrington v. Dunham, 273 Mo. 414, 202 S.W. 1066; Gardner v. Met. St. Ry. Co., 223 Mo. 389, 122 S.W. 1068; Stid v. Mo. Pac. Ry. Co., 236 Mo. 382, 139 S.W. 172; Hickman v. Link, 116 Mo. 123, 22 S.W. 472; James v. Mo. Pac. Railroad Co., 107 Mo. 480, 18 S.W. 31; Guenther v. St. Louis, I.M. & S. Ry. Co., 95 Mo. 286, 8 S.W. 371; Maxwell v. Hannibal & St. J. Railroad Co., 85 Mo. 95; Thomas v. Babb, 45 Mo. 384; First Natl. Bank v. Currie, 44 Mo. 91; Wood v. Fleetwood, 19 Mo. 529; Hickman v. Griffin, 6 Mo. 37; Hines v. McKinney, 3 Mo. 382; ...