Stoedter v. Turner

• Decision Date: 06 December 1921
• Docket Number: No. 16729.,16729.
• Citation: 237 S.W. 141
• Parties: STOEDTER v. TURNER at al.
• Court: Missouri Court of Appeals

237 S.W. 141

STOEDTER v. TURNER at al.

No. 16729.

St. Louis Court of Appeals. Missouri.

December 6, 1921.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by Carl Stoedter against Leigh C. Turner and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Leonard, Sibley & McRoberts, of St. Louis, for appellant.

Kelley, Starke & Moser, of St. Louis, for respondents.

ALLEN, P. J.

This is an action for the alleged breach of a contract by the defendants whereby it is alleged defendants agreed to pay plaintiff's expenses, and for the loss of plaintiff's time in coming from Dubuque, Iowa, to appear as a witness in a case.

The suit was instituted before a justice of the peace, upon a statement wherein plaintiff alleged that defendants, on November 14, 1916, and December 7, 1916, requested plaintiff to leave his school in Dubuque and come to St. Louis to attend as a witness at the trial of the case of Wilhelm v. Pauly Jail Building Company, then pending in the circuit court of the city of St. Louis; that defendants promised plaintiff, if he would come to St. Louis for the purpose aforesaid, they would pay his railroad fare and necessary and proper traveling expenses, and for his time and board and incidental expenses from the time he left Dubuque until the conclusion of the trial of said case; that, relying upon these promises, plaintiff came to St. Louis, and called to see defendant Turner, who told him that defendants would not fulfill their part of the contract. Alleging repeated demands on defendants, and that they paid plaintiff but the sum of $12, and averring that plaintiff suffered damage by way of expenses and loss of time, judgment is prayed in the sum of $500.

Defendants prevailed before the justice of the peace, and, upon plaintiff's appeal to the circuit court and a trial there de novo before the court and a jury, there was a verdict and judgment for the defendants; the court having peremptorily directed a verdict for defendant Fairbank on the ground that he acted only as agent for other defendants which action is conceded to have been proper. From this judgment the plaintiff appeals.

The evidence discloses that in the latter part of 1916 the case of John Wilhelm v. Pauly Jail Building Company was pending in the circuit court of the city of St. Louis, wherein the plaintiff, Wilhelm, was seeking to recover damages for personal injuries alleged to have been received by him while in the employ of said Pauly Jail Building Company in the city of St. Louis. Stoedter, the plaintiff herein, a young German who had then been in this country but a short time, was in the employ of the Pauly Jail Building Company, and worked with Wilhelm prior to the time of the latter's injury. In the latter part of 1916 he was in a school in Dubuque, Iowa, studying for the ministry, and, it seems, working a part of his time to pay expenses.

In the suit of Wilhelm v. Pauly Jail Building Company, Wilhelm was represented by the law firm of Leonard & Sibley, of the city of St. Louis, and the defendant therein was represented by defendant Leigh C. Turner and Kelley & Starke, attorneys of said city. It appears that the firm of Kelley & Starke were in the case because of the fact that they represented the Ocean Accident & Guarantee Corporation, defendant herein, in which company the Jail Building Company carried liability insurance. The defendant Fairbank, an attorney at law, was associated with defendant Turner.

The evidence shows that the suit of Wilhelm v, Pauly Jail Building Company was filed on January 21, 1916, and that it had been set for trial on December 11, 1916. It appears that after the institution of that suit, and while this plaintiff was in the city of St. Louis, defendant Fairbank secured from plaintiff a written statement in regard to facts within his knowledge that were considered material in the case of Wilhelm v. Pauly Jail Building Company, which statement plaintiff signed. It also appears that a representative of the firm of Leonard & Sibley obtained a written statement from plaintiff in April, 1916, of which defendants were not aware when they purposed to use plaintiff as a witness.

Some time prior to November 14, 1916— plaintiff in the meantime having removed to Dubuque, Iowa—defendant Fairbank, according to his testimony, acting for defendant Turner, called plaintiff by long-distance telephone, and referring to plaintiff's statement, said to plaintiff:

"If that would be your evidence on those points in this case we would like to have you come to St. Louis. I will notify you of the exact date of trial, and will write you a letter confirming this conversation."

On November 14, 1916, defendant Fairbank wrote to plaintiff, on stationery of Mr. Turner, referring again to the written statement, and saying:

"We would therefore like to have you present on December 11, at the time the case is to be tried. We will pay your railroad far, time and the expense that you will be put to in coming to St. Louis."

On December 7, 1916, four days before the date upon which the case was set for trial, Fairbank again wrote to plaintiff, acknowledging the receipt of a letter from plaintiff and sending plaintiff a draft for $12 to cover his "railroad and sleeper fare from Dubuque to St. Louis." And in this letter Fairbank stated:

"We shall, of course, in addition to this take care of your time and expenses in attending the trial, and at the conclusion of the trial pay your expenses back to your home city."

Plaintiff's testimony, by way of deposition, shows that plaintiff left Dubuque on December 7, 1916, the day when the last-mentioned letter was written in St. Louis. Plaintiff says that he received that letter, but does not say that he received it in Dubuque, Iowa. The evidence shows that, though plaintiff came directly to the city of St. Louis, he did not call at the office of defendant Turner until December 10th. Upon his first call at that office he was asked to attend a meeting to be held in the office of Kelley & Starke, in the Pierce building, that evening, which he did. It appears that Mr. Kelley, Mr. Turner, and Mr. Fairbank were present, together with certain employés of the Pauly Jail Building Company. As to what occurred at that time, plaintiff says that he was asked a number of questions regarding methods of work, the handling and selection of tools, etc., in the plant of the Pauly Jail Building Company while he worked there; that later he was called into another room, Mr. Kelley, Mr. Turner, and Mr. Fairbank being present, where an argument ensued between plaintiff and Mr. Kelley. This argument, it appears, arose from the fact that the lawyers present regarded plaintiff's statements to them at the time as being radically different from those contained in his written statement, and the further fact that plaintiff, at the time, admitted to them that prior to coming to Mr. Turner's office he had seen Mr. Leonard, of the firm of Leonard & Sibley, though plaintiff maintained that this meeting with Mr. Leonard was "accidental." A portion of plaintiff's testimony as to what occurred on this occasion is as follows:

"He [Mr. Kelley] said: `Now I am in doubt if I can pay your railroad fare.' `Now,' I said, `you made me come down to St. Louis for this case, and you have to pay me.' `Well,' I said further, `I did not come down to St. Louis to work for any party but I come to St. Louis to testify the truth as far as I know it.' Now Mr. Kelley said, `You cannot help me at all except you go back right away in the evening or the first thing in the morning. I am going to pay everything"'

Plaintiff stated that he refused to return to Dubuque until after the trial. From plaintiff's testimony it appears that he was told to return to Turner's office next morning, which he did. At this meeting plaintiff says that he stated to Mr. Turner, in substance, that if he was called as a witness by Mr. Turner the latter was to pay his railroad fare, and that if Mr. Leonard put him on the stand he would go to Mr. Leonard to collect his railroad fare and expenses. Plaintiff does not say that defendant Turner agreed to this. Nor is there any evidence that Mr. Leonard had agreed to pay plaintiff's expenses. Plaintiff says that Mr. Turner told him to stay away from the courthouse, and not bother himself any more about the matter, but he did not do this, because he had never seen a trial, and "wanted to...