Warren v. Giudici
| Decision Date | 17 September 1928 |
| Docket Number | No. 4415.,4415. |
| Parties | WARREN v. GIUDICI. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Butler County; Charles L. Ferguson, Judge.
Action by Flora Warren against C. Giudici. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Henson & Woody, of Poplar Bluff, for appellant.
Cope & Tedrick, of Poplar Bluff, for respondent.
Action for damages for personal injuries received as a result of a collision between two automobiles. Plaintiff recovered $3,000, and defendant appealed.
The petition alleged that plaintiff was a guest in an automobile belonging to her husband and driven by one A. Carty. Without going into details it is sufficient to say that her petition alleges that the automobile in which she was riding collided with an automobile driven by defendant at a point on Main street in the city of Poplar Bluff; that the collision came about as a result of defendant's negligence; and that she was severely injured thereby.
The answer was a general denial followed by specific allegations of several acts of negligence on the part of plaintiff and the driver of the car in which she was riding, followed by an allegation that the collision and consequent injury to plaintiff was caused solely by the said negligence of plaintiff and the driver of her car.
The court gave an instruction to the jury at the request of plaintiff, telling the jury that one defense pleaded was that of the contributory negligence of plaintiff, and followed this with a definition of contributory negligence, and then told the jury that the burden of proving contributory negligence was upon defendant. Appellant contends that the giving of this instruction was error; that the answer did not plead contributory negligence as stated in the instruction, but did plead that the collision and injury was caused solely by the negligence of plaintiff and the driver of the car in which she was riding; and with the pleadings in that condition contributory negligence was not an issue in the case and it was prejudicial error to instruct the jury upon that question. Had the defendant asked an instruction upon that question, the court might have been justified in refusing it because contributory negligence was not pleaded, but, since giving the instruction gave the defendant the benefit of a defense which he now claims was not pleaded by him, we cannot see that he was injured by the court giving it.
In rebuttal, plaintiff placed on the witness stand James Gatlin, who was in the car with defendant at the time of the collision. On cross-examination counsel for defendant seems to have exhibited a paper to this witness, and the witness said, "That is my signature to the paper you show me." After the witness left the stand, the defendant offered the writing to impeach the witness. This was objected to on the ground that the attention of the witness had not been called to the writing while he was on the stand in such a way as to permit it to be offered to impeach him. This objection was sustained. It appears that the witness was shown his signature on the paper and he stated that it was his signature. No other questions were asked him. His attention, so far as this record shows, was not in any way called to the contents of the writing, nor was he asked if he had executed it. He was not asked if the statement had been reduced to writing in his presence, nor if he had read it, or heard it read, or been informed of its contents before he signed it. All he was asked was to identify the signature at the end of the paper as his signature. We do not think this showing sufficient and the court did not err in excluding it. State v. Grant 79 Mo. 113, 132, 49 Am. Rep. 218; Kersten v. Hines, 283 Mo. 623, 633, 223 S. W. 586; Hackleman v. Kansas City Rys. Co., 203 Mo. App. 125, 130, 217 S. W. 618.
It is insisted that error was committed by the trial court in not sufficiently rebuking counsel for plaintiff for statements made to the jury in both the opening and closing arguments relative to defendant being under the influence of intoxicating liquor while driving his car and at the time of the accident. One witness had testified that he was at the scene of the...
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