Wilson v. Frankel

• Decision Date: 20 June 1933
• Docket Number: No. 22486.,22486.
• Parties: WILSON v. FRANKEL et al.
• Court: Missouri Court of Appeals

61 S.W.2d 363

WILSON v. FRANKEL et al.

No. 22486.

St. Louis Court of Appeals. Missouri.

June 20, 1933.

As Modified on Denial of Rehearing July 3, 1933.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be published in State Reports."

Action by Venie Wilson against Frank Frankel and another. From a judgment in favor of the plaintiff, the defendants appeal.

Affirmed.

Wayne Ely and Tom Ely, Jr., both of St. Louis, for appellants.

Earl M. Pirkey, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries. Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendants, in the sum of $1,200; and, following the refusal of their motion for a new trial, defendants have duly appealed.

Defendants, at the time in question, were the owners of certain tenement property located at 1430-1432 North Fifteenth street in the city of St. Louis. It appears that the property consisted of two separate buildings, containing in all ten apartments; and that among the tenants was one Margaret Johnson, who occupied the first floor apartment at No. 1430.

On March 25, 1931, plaintiff, Venie Wilson, who was the proprietress of a rooming house at 223 South Beaumont avenue, set out in search of her cousin, who, she had been informed by a chance acquaintance, was to be found at the North Fifteenth street address. Presenting herself at the door to Mrs. Johnson's apartment, plaintiff was admitted, and she then inquired if her cousin lived in the building. Mrs. Johnson informed her that no such person lived there. The conversation between the two then continued along conventional lines until somewhat after 7 o'clock when plaintiff made ready to leave, but, before doing so, asked Mrs. Johnson if she might use the toilet. Mrs. Johnson at once assented, and informed plaintiff that the toilet was located out in the back yard, and that a small child, who happened to be playing in the yard, would show her to it.

The toilet was one maintained by defendants as landlords for the common use of all the tenants in the two buildings. It had three separate compartments, the doors to which were closed as plaintiff approached it. She pushed open the door to the west compartment and entered; and, as she stepped upon the floor within, two of the planks gave way, causing plaintiff to fall and to sustain the injuries on account of which she has brought this suit.

Inasmuch as no point is made about the sufficiency of the pleading or proof of negligence, that feature of the case need not be considered.

It was a conceded fact that Margaret Johnson, the tenant from whom plaintiff received permission to use the toilet, was dead at the time of the trial. In view of that situation, defendants objected to the competency of plantiff's testimony regarding her conversation with Mrs. Johnson, and likewise to the opening statement of plaintiff's counsel as to his expectation of proving such conversation. The adverse ruling of the court in both instances is now assigned as error.

The statute (section 1723, R. S. 1929, Mo. St. Ann. § 1723) provides that, in cases where one of the original parties to the cause of action in issue and on trial is dead, the other party to the cause of action shall not be permitted to testify either in his own favor or in favor of any party to the action claiming under him. Defendants argue that Mrs. Johnson was a party to the cause of action, the permission having come from her, and that therefore, in view of the statutory inhibition, plaintiff was rendered incompetent as to the giving of the testimony to which objection was directed. This contention is untenable. Mrs. Johnson was neither a party to the cause of action on trial, nor was she defendants' representative in the matter of the permission granted to plaintiff to use the toilet. Rather, plaintiff stands in Mrs. Johnson's shoes in the assertion of her claim, as we shall presently have occasion to show. Under such cricumstances plaintiff's competency to have testified is not to be questioned, and the rulings of the court in both of the instances complained of were therefore proper. Daniels v. Goeke, 191 Mo. App. 1, 176 S. W. 301; 40 Cyc. 2331.

It is next urged that it was error during the course of plaintiff's direct examination, after she had testified that she had gone to the North Fifteenth street address and had been asked to enter, but before she had testified to the permission granted her to use the toilet, for the court to refuse defendant's offer of proof that Mrs. Johnson was dead. Such ruling could not have been prejudicial error. As we have already indicated, Mrs. Johnson's death was a conceded fact, and plaintiff's counsel so informed the jury at the very outset of his opening statement. Consequently, aside from the fact that plaintiff was nevertheless a competent witness, the rejection of defendant's offer of proof was entirely harmless. Coombes v. Knowlson, 193 Mo. App. 554, 182 S. W. 1040; Smith v. Brougher (Mo. App.) 274 S. W. 532.

During the direct examination of defendant Frank Frankel, he identified a written statement as being in the handwriting of Mrs. Johnson, and as having been executed in his presence. This was a statement purporting to disclose that Mrs. Johnson did not know plaintiff; that the latter had not visited at her home; that she had been approached by a lawyer and promised compensation if she would testify that plaintiff had been hurt, and that the toilet was in bad condition; and that the condition of the toilet was good. Plaintiff's counsel objected to the admission of the statement as hearsay, and was sustained; and the ruling of the court is now assigned as error.

We think the statement was properly excluded upon the ground of objection set up against it. Of course the fact that the statement of Mrs. Johnson had been reduced to writing did not give it a competency which it would not otherwise have possessed. Differing from plaintiff's own testimony which depended for its probative force upon plaintiff's own competency and credibility, this statement purported to come into the case upon the identification of defendant Frank Frankel, who knew nothing of the matter, as a statement of what Mrs. Johnson had related to him. Consequently it was clearly hearsay, and as such inadmissible. Townsend v. Schaden, 275 Mo. 227, 204 S. W. 1076; Bennett v. Myres (Mo. App.) 21 S.W.(2d) 943; McCune v. Daniels (Mo. App.) 251 S. W. 458; Whitmore v. American Railway Express Co., 219 Mo. App. 294, 269 S. W. 654.

Upon the assumption that plaintiff's own testimony of her conversation with Mrs. Johnson was hearsay, defendants argue that plaintiff must be held to have waived her right to object to the introduction of hearsay evidence in their behalf. Even if a waiver might otherwise be established in that fashion, the fact that plaintiff's own testimony was not hearsay, as we have already indicated, disposes of the contention of waiver by destroying the major premise upon which the claim is founded.

Next defendants assign error to the action of the court in permitting plaintiff's counsel, as a part of his rebuttal, to introduce the petition and answer in evidence and read them to the jury. The points they now make against the admissibility of such evidence are the same as those made at the trial — that the pleadings were for the court and not the jury; that the petition was but a self-serving statement on the part of plaintiff; and that the answer served no purpose as an admission, because, being a general denial, it did not admit anything.

Counsel for plaintiff seeks to justify his use of the pleadings, and especially his use of the answer, upon the theory that by the general denial defendants had denied, among other things, that they owned the property, and that the toilet was for the common use of all the tenants, both of which facts were admitted at the trial; and that it was therefore proper for him to disclose such change of front to the jury. And he insists further that the answer would have served no useful purpose in evidence unless the jury were put in a position to know the facts which it was denying, and that consequently the petition too was properly admitted.

We think that counsel was venturing on dangerous ground when he offered in evidence the pleadings on which the case was tried. They were indeed for the court and not the jury; and the petition was the more objectionable, since it was in a sense a self-serving document, and to permit it to be read as evidence in the case had a natural tendency to impress the jury with the belief that its allegations were of themselves endowed with probative force and value. The answer might under ordinary circumstances have been more pertinent as a part of plaintiff's evidence had it contained admissions against interest, or had it disclosed a substantial change in the theory of defense by way of afterthought. However, as a general denial, it admitted nothing, as defendants point out; nor was it material that defendants at the trial admitted or did not dispute matters which they had once formally denied. Such a change of position on defendants' part reacted strongly to plaintiff's benefit. Obviously the situation here is quite different from that which obtains where the plaintiff offers an abandoned answer to show that the last position assumed is inconsistent with the first claim, or is an afterthought.

But though we disapprove of the introduction of the pleadings in evidence under the circumstances of the case, we are not warranted in reversing the judgment on that account, unless we can say that the error was one materially affecting the merits of the action and prejudicial to defendants' rights. In the first place, even though the pleadings were presumably not read to the jury at the outset of the case, yet it is fairly to be assumed that the jury had been informed by the opening statement of plaintiff's...