The State ex rel. Smith v. Trimble

• Citation: 285 S.W. 729,315 Mo. 166
• Decision Date: 25 June 1926
• Docket Number: 26529
• Parties: The State ex rel. Louis Smith, by Next Friend, v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals, and Rothenberg & Schloss Cigar Company
• Court: United States State Supreme Court of Missouri

285 S.W. 729

315 Mo. 166

The State ex rel. Louis Smith, by Next Friend, v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals, and Rothenberg & Schloss Cigar Company

No. 26529

Supreme Court of Missouri

June 25, 1926

Opinion quashed.

Forsee & Forsee for relator.

(1) The Court of Appeals held that the trial judge committed "error" in giving plaintiff's Instruction 2 because, it says, plaintiff's charge of negligence on the part of the defendant in failing to warn plaintiff of his danger appeared in the wrong part of plaintiff's petition. This ruling is in direct conflict with the latest opinions of this court, in the following cases, and for the following reasons: (a) It was sufficient for the allegation of lack of warning to appear in any part of the petition. Riley v. Independence, 258 Mo. 671. (b) Evidence of lack of warning was admitted by the court, without any objection by the defendant, and defendant admitted that no warning was given. Under such circumstances the ruling of this court is that the petition will be treated as if amended if it were defective. Solomon v. Moberly, 303 Mo 622; Miller v. Mo. Pac. Ry. Co., 105 Mo. 455; Heman v. Allen, 156 Mo. 534; Morgan v. Wabash Railroad, 159 Mo. 262; Jones v. Railroad, 178 Mo. 528; Smith v. Smith, 201 Mo. 533; Rock v Keller, 278 S.W. 765. (c) If it was error, this court holds it was an error not "materially affecting the merits of the action," and harmless. Jones v. Railroad, 178 Mo. 554; Sec. 1550, R. S. 1919; Heman v. Allen, 156 Mo. 534. (2) The Court of Appeals held that the trial court committed reversible error in admitting in evidence as a part of the res gestae the declarations of the driver of the truck made to an eyewitness of the occurrence at the scene of the injury, and immediately after the truck struck the plaintiff. Such ruling is in direct conflict with the following latest decisions of this court and for the following reasons: (a) The declarations were a part of the res gestae. Barz v. Fleischmann Yeast Co., 271 S.W. 361; Pryor v. Payne, 263 S.W. 985; Landau v. Travelers Ins. Co., 267 S.W. 376; Rosenzweig v. Wells, 273 S.W. 1071. (b) The declarant was placed on the witness stand by the defendant and he admitted (as the opinion of the Court of Appeals states) that he had made the declarations. He also testified in substance to the same facts. Therefore, the error, if one, was harmless. State v. Martin, 124 Mo. 530; Barker v. Ry. Co., 126 Mo. 143; Jones v. Ry. Co., 178 Mo. 554. (c) The declaration in connection with other evidence tended to prove (a fact plaintiff was required to prove) that the driver of the truck was in the employ of the defendant, and engaged in his master's business at the time of the injury. Barz v. Fleischmann Yeast Co., 271 S.W. 361. (d) In admitting the declaration as a part of the res gestae, the trial court exercised its judicial discretion, which it had a right to do. Landau v. Travelers Ins. Co., 267 S.W. 376.

Henry S. Conrad, L. E. Durham and Hale Houts for respondents.

(1) This court is concerned in a proceeding of this kind only with questions involving conflict in a decision of the Court of Appeals with the previous applicable decisions of this court. State ex rel. v. Reynolds, 235 S.W. 90. (2) The first ruling of the Court of Appeals complained of is that holding that the giving of plaintiff's Instruction 2 was reversible error in that the instruction, by authorizing the jury to find for plaintiff under the last-chance doctrine for alleged negligence on the part of defendant's driver in failing to give a warning to plaintiff after his peril was discovered so as to avoid the collision, was broader than the pleading. It is not denied by relator that the instruction so authorized recovery. It is contended that the petition was sufficient to cover such ground. The Court of Appeals had no decision of this court to guide it in determining the question of whether the petition covered the ground of negligence in question. It would seem, however, that its decision that the petition was not so sufficient is clearly right. The court held that the allegation of a failure to warn was not a part of the charge of negligence under the humanitarian doctrine. A failure to warn generally is obviously to be distinguished from failure to warn under the humanitarian doctrine since the latter in order to constitute negligence must consist of a failure to warn after the defendant has seen or by the exercise of ordinary care could have seen the plaintiff in a position of peril of which plaintiff was not aware in time to have avoided the collision, or rather, in time to have enabled plaintiff to have avoided it. It is clear that the allegations of the petition as stated by the court contain no such allegation as this. The only theory of the humanitarian doctrine pleaded was failure to stop. Even aside from consideration of the elements of negligence in a failure to warn under the humanitarian doctrine, the language of the petition cannot be construed otherwise than as construed by the Court of Appeals. (3) It is next insisted by relator that even if the instruction was broader than plaintiff's petition in the respect indicated, the error was waived by reason of the fact, as claimed by relator, that evidence bearing upon the issue of failing to warn under the humanitarian doctrine was admitted without objection. Evidence of failure to warn generally was of course admissible under the allegation of failure to warn as a ground of primary negligence under the petition. If admissible for any purpose failure to object could not constitute waiver. It does not appear from the opinion of the Court of Appeals that the evidence went any further than to support such general allegation. But even had there been evidence, admitted without objection, supporting this ground of negligence not covered by the petition, such fact would not have authorized the submission of it to the jury as a ground for recovery. The Court of Appeals said: "It is the well-established rule that an instruction must conform both to the pleading and the proof." And such is the rule of this court. Black v. Railway, 217 Mo. 672; Degonia v. Railroad, 224 Mo. 589; State ex rel. v. Ellison, 270 Mo. 645; Champion Co. v. Schillke, 237 S.W. 111. (4) The second and last main point made by relator is that the Court of Appeals failed to follow the controlling decisions of this court in holding the testimony as to the statement made by defendant's driver after the collision was not part of the res gestae and that its admission was reversible error. The question of whether or not a statement is part of the res gestae depends upon the facts of the particular case. Pryor v. Payne, 263 S.W. 982. The principles to be applied in determining the question of admissibility of statements, as stated by the Court of Appeals, are in accord with the statement of this court in Leahey v. Railway, 97 Mo. 165, and in Redmont v. Railway, 185 Mo. 1. (a) Relator next insists that if the admission of testimony were erroneous the error was harmless and in support of this contention insists that the driver admitted that he made the declaration, that the Court of Appeals in its opinion said that he so admitted and, also, that the driver testified to the same facts. Relator is in error in so stating the evidence. There was no such admission or similar evidence and the Court of Appeals held that there was not. The question of whether defendant's driver testified to the same effect as the statement erroneously admitted was one for the Court of Appeals, there being no decision of this court involving similar facts. (b) Finally relator insists that under Landau v. Travelers Ins. Co., 267 S.W. 376, the admission of the declaration was an exercise by the trial court of judicial discretion with which the Court of Appeals could not interfere. The fact that this court has frequently held the admission of testimony as res gestae to be reversible error would seem to indicate that the admission of such testimony was not a matter in the discretion of the trial court, nor does the Landau case support the view that the admission of testimony of this character is in the discretion of the trial court.

Higbee C. Railey, C., not sitting.

OPINION

HIGBEE

Certiorari to review the opinion of the Kansas City Court of Appeals in Louis Smith, by next friend v. Rothenberg & Schloss Cigar Company, reversing a judgment for the plaintiff for the sum of $ 5000 for damages for personal injuries sustained by him about eight P. M. on March 8, 1922, and remanding the cause for new trial. The opinion of the learned court of appeals reads in part:

"Plaintiff a boy about fourteen years of age, and his younger brother, were riding bicycles traveling west on the north side of Ninth Street down grade. Defendant's salesman, accompanied by his son, was driving a Ford truck on Ninth Street, approaching Olive Street intersection from the west, and turned into Olive Street to the north. The collision took place at or near the northwest corner of the intersection.

"The petition alleges the salesman negligently turned north before reaching the center of the Olive Street intersection; that he negligently failed to give any warning to plaintiff; that he saw, or in the exercise of ordinary care, could have seen plaintiff in a position of peril, of which plaintiff was not aware, in time to have avoided running into plaintiff by stopping his truck or slackening speed. In the aid of the first allegation, an ordinance of the city of Kansas City is pleaded which required all vehicles to pass the center of intersecting streets before making a turn. . . .

"Plaintiff's evidence shows that he was traveling west on Ninth Street near the curb on the north side...