Tennison v. St. Louis-San Francisco Ry. Co.
| Decision Date | 13 March 1950 |
| Docket Number | No. 1,No. 41515,LOUIS-SAN,41515,1 |
| Citation | 228 S.W.2d 718 |
| Parties | TENNISON v. ST.FRANCISCO RY. CO |
| Court | Missouri Supreme Court |
Jo B. Gardner, Monett, for appellant.
E. G. Nahler, St. Louis, Frank C. Mann, C. Wallace Walter, Mann, Mann, Walter & Powell, Springfield, for respondent.
Action for both actual and punitive damages for wrongful discharge of plaintiff (a brakeman) from his employment. Plaintiff had verdict and judgment for $8500.00. The trial court granted a new trial on the ground of error in admitting in evidence an unsigned, unsworn statement of brakeman H. R. Foster, made at an investigation of plaintiff's alleged violation of defendant's Rule G, which was typewritten by a reporter present at the hearing.
On the occasion investigated, plaintiff went on duty at Monett as rear brakeman for a night run to St. Louis on a passenger train. It was his duty to protect the rear end of the train at all stops; other trains were following. At the trial, defendant had evidence of its Pullman Conductor that, between Monett and Springfield, plaintiff offered him a drink from a bottle of whiskey, which he refused, and that plaintiff drank its contents; he reported this to the Train Conductor. Defendant's Auditor also noticed plaintiff, after leaving Springfield, decided he was intoxicated and reported this to the Train Conductor. The Train Conductor found plaintiff asleep, took over his duties at Lebanon and wired Newburg (the division point) for a relief brakeman. Plaintiff was left there. Plaintiff's evidence was that he was sick and had taken an overdose of medicine before going on duty. He denied that he had any whiskey with him or that he had used any whiskey.
It was stipulated at pre-trial conference that at the time in controversy a part of the contract between defendant and the union of which plaintiff was a member was as follows:
It was also there stipulated that at such time defendant had and plaintiff was familiar with Rule 'G':
An investigation of this matter was had at the office of defendant's Assistant Superintendent at Springfield and several of the trainmen made statements there, which were reported and transcribed. Defendant's Assistant Superintendent questioned them and they were also questioned by the General Chairman of the Brotherhood of Railroad Trainmen for the Frisco who reppresented plaintiff there. The substance of brakeman Foster's statement at this investigation (received in evidence at the trial) was that he had seen plaintiff about 5:45 a. m. at Newburg; that he had not seen him at any point or time prior to that; that he took particular note of his actions and appearance after he was told that he had been taken off his train that morning; that plaintiff was talking to Coble (another brakeman) and him; that his speech was normal, his appearance was normal and there were no signs of him being intoxicated. Foster also stated his conclusion that a man could not be drunk at Lebanon and sober at Newburg, one hour and fifteen minutes later, the assumed running time of the train between those towns.
This statement was, of course, hearsay; but plaintiff contends it was admissible as a declaration against interest of Foster, as a part of the records of defendant and also because of the contract with the Trainmen's Union. None of these contentions can be sustained.
Plaintiff argues that it was against the financial interest of Foster to make a statement in support of plaintiff being retained as a brakeman because plaintiff had seniority over him and it would aid his advancement for plaintiff to be discharged. He cites 5 Wigmore on Evidence (3d Ed.) 266, Sec. 1461 and Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284, 162 A.L.R. 437. In the Sutter case, we broadened the rule beyond the requirement of financial or proprietary interest but the interest there included was liability to punishment for a criminal offense. That is a direct interest involving immediate and drastic consequences. The interest claimed here is indirect and remote. The Wigmore section, cited by plaintiff, says: 'No more precise test can well be formulated, except in the suggestion that the interest injured or the burden imposed by the fact stated should be one so palpable and positive that it would naturally have been present in the declarant's mind.' See also McComb v. Vaughan, 358 Mo. 951, 218 S.W.2d 548, 551. There is not even any evidence in this case that Foster knew plaintiff's seniority rating and, in any event, it is not reasonable that he would consider it would be of any immediate direct consequence to him to make a favorable statement about his condition.
Plaintiff also says that this statement was an admission...
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...upheld unless abused or clearly erroneous.' Teague v. Plaza Express Co., 356 Mo. 1186, 205 S.W.2d 563, 566.' Tennison v. St. Louis-San Francisco Ry. Co., Mo.Sup., 228 S.W.2d 718, loc. cit. 721. I think there are good reasons for the trial court's conclusion that Instruction No. 3 was mislea......
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Warren v. Kansas City
...trial was specifically granted upon some truly discretionary ground, as error in the admission of evidence, Tennison v. St. Louis-San Francisco Ry. Co., Mo.Sup., 228 S.W.2d 718, or that the verdict was the result of passion or prejudice, Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W......
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Jones v. Kansas City, 42181
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