The State ex rel. Thomas v. Daues

• Citation: 283 S.W. 51,314 Mo. 13
• Decision Date: 09 April 1926
• Docket Number: 26478
• Parties: THE STATE ex rel. WILLIAM THOMAS v. CHARLES H. DAUES et al., Judges of St. Louis Court of Appeals
• Court: United States State Supreme Court of Missouri

283 S.W. 51

314 Mo. 13

THE STATE ex rel. WILLIAM THOMAS v. CHARLES H. DAUES et al., Judges of St. Louis Court of Appeals

No. 26478

Supreme Court of Missouri

April 9, 1926

Preliminary rule discharged.

Douglas Inman & Horsefield for relators.

(1) The opinion of the Court of Appeals holding the evidence of the engineer as to sounding the whistle and ringing the bell was competent is in direct conflict with the following opinions of this court, which holds that such evidence is not competent, and most of which opinions were called to the attention of the Court of Appeals in relator's brief and motion for a rehearing. Leavea v. Railroad Co., 266 Mo. 151; Lawhon v. Laboratories, 252 S.W. 44; Edmonds v. Sharff, 279 Mo. 78; Lieber v Lieber, 239 Mo. 1; Chapman v. Dougherty, 87 Mo 617; Williams v. Edwards, 94 Mo. 447; Eaton v. Kates, 175 S.W. 950; Real Estate Co. v. Bldg. Co., 196 Mo. 358; Griffin v. Nichols, 224 Mo. 275; Savings Bank v. Slattery, 166 Mo. 620; Banking House v. Rood, 132 Mo. 262; Brunk v. Street Car Co., 198 Mo.App. 243; McKim v. Street Car Co., 209 S.W. 622; Carroll v. Railroad, 157 Mo.App. 247. (2) The cases cited by the Court of Appeals as authority for the competency of the engineer as a witness to the things contained in the offer of proof are not in point under the construction placed on our statute by this court for the reasons that (a) this case is not an action on or growing out of contract, (b) this is an action for tort where the engineer was a joint tortfeasor and, therefore, was a party to the cause of the action, (c) because our courts in some cases seem to make a distinction where the agent represents an individual (as an individual is a party and can act for himself) and a corporation, as a corporation can only act through their agents, (d) because the only case in point by the Court of Appeals has not been followed by later cases. (3) The cause of action in this case is for injury to decedent which resulted in her death, and her cause of action for the injury was transmitted to plaintiff by reason of her death. Proctor v. Railroad, 64 Mo. 119; Eaton v. Kates, 175 S.W. 950; Strode v. Transit Co., 197 Mo. 616; Lampe v. Brewing Assn., 221 S.W. 447; State ex rel. v. Reynolds, 226 S.W. 579; Bates v. Sylvester, 205 Mo. 500; Strotman v. Railroad, 211 Mo. 254; Miller v. Railroad, 109 Mo. 350; Sherrin v. Railroad, 103 Mo. 378.

Jones, Hocker, Sullivan & Angert for respondents and Railway Company.

(1) The engineer was a competent witness. (a) The deceased was not a party to the cause of action on trial, and plaintiff's cause of action arose on or after her death. Entwhistle v. Feighner, 60 Mo. 214. (b) The engineer was not interested in the cause of action on trial within the meaning of the statute. The courts of this State uniformly hold that the agent of a corporation, in such circumstances, is not disqualified by the death of the other party to the transaction in controversy. R. S. 1919, sec. 5410; Wagner v. Binder, 187 S.W. 1151; Allen Estate Assn. v. Fred Boeke & Son, 254 S.W. 858; Clark v. Thies, 173 Mo. 628; Allen v. Jessup, 192 S.W. 722; Darby v. Northwestern Ins. Co., 239 S.W. 68. (2) When jurisdiction is once obtained by the Supreme Court on certiorari it will consider all conflicts in the opinion of the Court of Appeals with the decisions of the Supreme Court, whether suggested by the parties or not, and will certainly consider such conflicts as may be suggested by the respondents or by the real party in interest. State ex rel. Vulgamott v. Trimble, 300 Mo. 101; State ex rel. v. Ellison, 273 Mo. 228; State ex rel. v. Reynolds, 286 Mo. 223; State ex rel. v. Trimble, 271 S.W. 43.

OPINION

Graves, J.

Certiorari to the St. Louis Court of Appeals. This proceeding grows out of the case of William Thomas v. Chicago Rock Island & Pacific Railroad Company, tried in the Circuit Court of the City of St. Louis, and in which the plaintiff recovered for the alleged negligent killing of his wife, by defendant, the sum of $ 4200. Upon defendant's appeal the case went to the St. Louis Court of Appeals, where it was heard and the judgment reversed and the cause remanded. Said court declined to hold that plaintiff did not make out a case for the jury, but reversed and remanded the case solely upon the ground that the trial court refused to admit competent evidence offered by the defendant. That portion of the opinion reads:

"The defendant produced as a witness on its behalf the engineer who was operating its locomotive at the time of the accident. The plaintiff objected to the competency of this witness, on the ground that Mrs. Thomas, the other party to the transaction or cause of action, was dead. The court sustained the plaintiff's objection, whereupon the defendant proffered testimony to be given by the witness as follows:

"'I was engineer on train No. 23 on April 18, 1922, at the time we struck a lady on Pennsylvania Avenue crossing in University City, Missouri. I sounded the regular crossing whistle for this crossing at the whistle post, and when I was about 300 feet east of the crossing, and the last blast was sounded as I was about at the box car. We were running about ten miles an hour at the time. The bell on the engine was ringing by automatic air, was ringing all the time within a quarter of a mile of the crossing. Approaching this crossing I was seated in my engineer's box. I first saw this lady when she was near the switch track. She appeared to be in a walk then, and suddenly she started to run and went in front of the engine and seemed to throw her left arm up. The pilot struck her, that is, the right side of the pilot, and carried her about sixty feet on the pilot, then she seemed to slide off the pilot to the right, with her limbs on the rail, and the engine running over them severed both legs from the body. The crossing bell, which is a very loud one, was ringing. From the actions of the lady it seemed to me that she intentionally threw herself in front of the train. After I saw this lady starting to go across the track I applied the air and did everything possible to stop the train. It was impossible for me to stop the train in time to avoid striking her after she started to run towards the track.'

"The court excluded the proffered testimony on the ground of the incompetency of the witness, and the defendant assigns here this ruling of the court as reversible error. This assignment must be sustained. Under the authorities the engineer was a competent witness. [Entwhistle v. Feighner, 60 Mo. 214; Wagner v. Binder, 187 S.W. 1128; Allen Estate Assn. v. Fred Boeke & Son, 254 S.W. 858; Prindle v. Fidelity & Casualty Co., 233 S.W. 252; Darby v. Northwestern Mutual Life Ins. Co., 239 S.W. 68; Massey v. Butts, 221 S.W. 153; Bates v. Forcht, 89 Mo. 121.]"

Relator charges that this ruling conflicts with the last controlling rulings of this court, some of which are set out in the petition for our writ, and others have been added in the brief. The defendant contends that the opinion of the Court of Appeals is right on the ruling as to the admissibility of the engineer's testimony, but contends that its ruling on defendant's demurrer to the evidence was wrong, and such portion of the opinion should be quashed. Thus we have both parties asking to quash specific portions of the opinion. The latter contention is made by counsel for the railroad, who purport to represent respondents. It is hardly possible that respondents have authorized this attack upon their own opinion, but this situation will be left to the opinion, along with other matters involved. At most, if both contentions are considered, we have for consideration, (1) an alleged conflict in the ruling of the Court of Appeals to the effect that the engineer in charge of the train which killed the wife of plaintiff, is a competent witness, and (2) the sufficiency of the evidence to take plaintiff's case to the jury.

I. This case is not without its difficulties. In fact our court has not spoken with a voice of unanimity upon what we conceive to be the vital questions in the case. Let us get the facts of the case in mind by a concise statement. The husband (William Thomas) sued the Chicago, Rock Island & Pacific Railway, for the alleged negligent killing of the plaintiff's wife (Elizabeth Thomas), who was, at the time, diseased or troubled in her mind. The railroad alone was sued, and the engineer, whose acts are alleged to have been negligent, and the cause of the death of Mrs. Thomas, was not sued. Defendant offered the engineer as a witness, and the trial court ruled that he was incompetent on the ground that he was a party to the cause of action, the other party (Mrs. Thomas) being dead. The railroad company then made an offer of the evidence in detail to which it contended the engineer would testify, and this offer of proof was rejected by the trial court. The Court of Appeals ruled that the engineer was a competent witness, under the circumstances, and that the trial court erred in excluding his evidence. If the witness was competent the proffered evidence was material. This ruling is the vital issue so far as the relator is concerned. Our case law (so far as pertinent) will be discussed in succeeding paragraphs.

II. The Court of Appeals bottoms its judgment upon the following cases: Entwhistle v. Feighner, 60 Mo. 214; Wagner v. Binder, 187 S.W. 1128; Allen Estate Assn. v. Fred Boeke & Son, 254 S.W. 858; Prindle v. Fidelity & Casualty Co., 233 S.W. 252; Darby v. Northwestern Mutual Life Ins. Co., 239 S.W. 68; Massey v. Butts, 221 S.W. 153; Bates v. Forcht, 89 Mo. 121.

The case of Entwhistle v. Feighner, 60 Mo. l. c. 215 clearly supports the opinion of the Court of Appeals, if the same rule is to apply to corporations, acting...