Opinion
No. 42575.
July 14, 1952. Motion for Rehearing or to Transfer to Court en Banc Denied September 8, 1952.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, DIVISION NO. 5, WILLIAM S. CONNOR, J.
Milton R. Fox, William R. Kirby, St. Louis, for appellant.
Coburn, Storckman Croft, Thomas L. Croft, Edward E. Murphy, Jr., Winston Cook, St. Louis, for respondent.
Irene Moore appeals from an adverse judgment in this, her action against St. Louis Public Service Company to recover $10,000 damages for personal injuries alleged to have been sustained through defendant's negligence in the operation of one of its buses whereon she was a passenger.
She complains, in three separate assignments, of these incidents of the trial: (1) Striking, as hearsay, a statement attributed by one of plaintiff's witnesses to a third person (another passenger, not produced at the trial) and as having been made on the bus at the time of the casualty; (2) permitting defendant's counsel to comment on plaintiff's failure to produce a certain witness; and (3) a comment by the court in the presence of the jury (in ruling an objection) as to the relationship sustained by plaintiff toward such absent witness.
Submission was under the res ipsa loquitur doctrine predicated upon "a sudden, unusual and violent jerk causing plaintiff to be thrown," etc. No question arises as to the sufficiency of the evidence to make a case, so the facts need not be developed further than to give the general background of the case, and an understanding of the points presented on this appeal.
Plaintiff (35 years of age) was employed as an elevator operator at the Arcade Building in St. Louis. After leaving work at 5 o'clock on the evening in question, she and a co-worker, Mrs. Gertrude Mitchell, went to 8th and Washington where they boarded a westbound Page-Finney bus to go home. Plaintiff was unable to find a seat, and so stood at the rear end, in the aisle, and held six or seven packages in her arms. No one else was standing. According to the testimony of plaintiff, she was injured when she was caused to fall against a seat and to the floor as the result of a violent and unusual jerk of the bus which occurred at a place variously fixed by her (and her witness, Mrs. Mitchell) as being between 8th and 12th Streets on Washington. Asked what was done after she landed on the floor, plaintiff replied, "All I know Mrs. Mitchell assisted me up, and gave me her seat." Mrs. Mitchell did not actually see plaintiff fall, but she testified to a "terrible jar" which threw her (witness) forward, and then back into the empty seat she had selected. "Just about this time I looked around and saw Mrs. Moore laying flat on her back." Witness then went to help plaintiff. Plaintiff admittedly made no sort of outcry or yell; she talked to no one on the bus about the fall; she said nothing to the operator about it. No one assisted her up but Mrs. Mitchell. Neither witness saw any one else thrown down on the bus, nor any other packages, purses or anything that fell on the floor. Mrs. Mitchell was of the opinion that "the people — quite a few of them — went forward then back." It was Christmas Even, 1949, and the buses were running somewhat behind schedule. Plaintiff's proof consisted of her own testimony, and that of Mrs. Mitchell, and her physician, Dr. Michaels, whom she did not see until December 27. She returned to work December 29, and because of intervening holidays and her normal days off, she lost no pay. For five days after her return she acted as relief elevator operator, working only two or three hours a day, and then returned to her regular assignment, and she was still so employed at the time of the trial. The doctor taped her back; it was taped up better than two weeks; no X-rays were taken.
Plaintiff was asked as to when she first notified the Public Service Company of this incident, to which she replied, "When I called that evening on the 24th of December, they referred me to Tuesday after the holidays, because the offices was closed. Then when I called Tuesday morning they referred me to the Buder Building to Mr. Saunders as the Public Service called the man there."
The bus operator (called by defendant) testified he knew of nothing unusual having happened on the trip in question; recalled no sudden stop; did not hear or see any one fall, and knew nothing of plaintiff's claim of accident and injury until some time in the first part of January when he was called to the office and advised of it by his superintendent. From the standpoint of defendant, it was a no report case, in the sense that none was made by the operator.
The claim of error in the exclusion of evidence arises upon the following record (Mrs. Mitchell testifying):
"Q. Then you say — you say, you took her to the seat you had been sitting in? A. Yes.
"Q. Then how far did you ride? A. We rode to Vandeventer and in the meantime a lady said the driver should be reported because he just ignored Mrs. Moore laying on the floor.
"Q. When did she say that? A. After I placed Mrs. Moore in the seat.
"Mr. Gaertner: Who said that? A. There was a lady in the bus said he should be reported.
"Mr. Gaertner: I am going to ask that that be stricken, for the reason it is purely hearsay.
"The Court: Oh, yes, I will sustain the objection, the statement will be stricken from the record and the jury will disregard it. Have you got the party in Court to testify?
"Mr. Kirby: Sir?
"The Court: Have you got the party in Court to testify?
"Mr. Kirby: No, sir.
"The Court: That statement will be stricken from the record and the jury will disregard it."
Plaintiff contends on this appeal that the statement was admissible as a part of the res gestae. It was not so suggested at the trial. In fact, the record is barren of any reference to the theory upon which it was offered, and from this failure defendant argues that the matter is a mere afterthought — a question upon which we find it unnecessary to express an opinion. The court had discretion to determine in the first instance, for the purpose of letting the statement go to the jury, whether the facts were such as to bring it within the res gestae rule. Landau v. Travelers' Ins. Co., 305 Mo. 563, 576, 267 S.W. 376, 379; Woods v. Southern R. Co., Mo.Sup., 73 S.W.2d 374, 377. To reverse the exercise of that discretion, as sought by plaintiff, it must appear from the record to have been abused. Plaintiff argues that the "statement was made immediately after the occurrence * * * and was so closely connected with the happening as to be a part of it." The cases relied on are: State ex rel. Massman v. Bland, 355 Mo. 17, 194 S.W.2d 42; Evans v. Sears, Roebuck Co., Mo.App., 129 S.W.2d 53; Legger v. Great Northern Life Ins. Co., Mo.App., 216 S.W.2d 106; Rosenzweig v. Wells, 308 Mo. 617, 273 S.W. 1071; Rooker v. Deering Southwestern R. Co., 215 Mo.App. 481, 247 S.W. 1016; Scism v. Alexander, 230 Mo.App. 1175, 93 S.W.2d 36; Nanney v. I. H. Shell Son, Mo.App., 138 S.W.2d 717; Walker v. Prudential Ins. Co., 5 Cir., 127 F.2d 938; Somogyi v. Cincinnati, N. O. T. P. Ry. Co., 6 Cir., 101 F.2d 480. A cursory examination of these citations will demonstrate the verity of the oft-repeated pronouncement that the application of the doctrine of res gestae must depend on the particular facts in each case, which is particularly apropos here.
As to spontaneity and time elapsed, the record merely shows that plaintiff and her companion remained on the bus and "rode to Vandeventer, and in the meantime a lady said," etc., and that the only attempted clarification of this was by the equally indefinite expression of the same witness that the fellow passenger so stated "after I placed Mrs. Moore in the seat." On such a record this court would not be justified in ruling that the trial court abused its discretion in regarding the element of spontaneity as lacking. But a more compelling reason why the exclusion was proper is that the utterance, on its face, discloses it is not a statement of fact which the person making it had full opportunity to observe, and so it is not a declaration of the circumstances of the injury within the requirements of the exception to the hearsay rule. On the contrary, it is plainly and obviously a conclusion of fact reached by reasoning from other facts. It was nothing more or less than a bystander's appraisal or estimate of culpability which, in her opinion, attached to the bus driver's conduct. It was, therefore, not that spontaneous and unreflected character of statement which is admissible under the doctrine invoked. See Sconce v. Jones, 343 Mo. 362, 370, 121 S.W.2d 777, 781, and authorities there cited.
It was elicited from plaintiff that another person, known to her "for years" (A "Mrs. Corrine," who lived on Carpenter Place), was also a passenger on the bus. She testified that Mrs. Corrine occupied a seat back of the rear door on the right side; that she (witness) saw her before the accident occurred, but "didn't talk to her, just spoke to her — said `hello.'" Mrs. Corrine did not testify, and certain remarks of defendant's counsel in that connection from the basis of plaintiff's next assignment, viz.: That the "court erred in permitting the defendant's counsel to comment adversely on the failure of plaintiff to produce a witness whom she had known for a number of years but over whom there was no other evidence of control, when defendant knew the witness' name prior to trial and this witness was equally available to both parties." (Emphasis supplied.)
The parties are not apart on the governing principle, i.e., that no unfavorable inference may be drawn, and no adverse comment made on account of the non-production of witnesses whose evidence is equally available to both parties. The two authorities chiefly relied on by plaintiff are Belding v. St. Louis Public Service Co., 358 Mo. 491, 215 S.W.2d 506, and Blick v. Nickel Sav., Inv. Bldg. Ass'n, Mo.Supp., 216 S.W.2d 509.
References in defendant's argument to the non-production of the witness, which, it is charged, violate the rule just adverted to are italicized in the following excerpts from the record showing with particularity how the matter complained of arose:
"He [defendant's counsel] says Mrs. Moore can't tell you what caused that bus to jerk, he says Mrs. Mitchell can't tell you what caused that bus to jerk, he says he can't tell you what caused that bus to jerk. Do you think maybe that other friend of the plaintiff's who was on that bus could tell you what caused the bus to jerk?
"Mr. Kirby: Just a minute now. That is highly prejudicial. He has just as much opportunity to bring that lady into court as we do, if Your Honor please, and the jury should be so instructed.
"The Court: If he knew her name, but there is no evidence that he had her name.
"Mr. Kirby: Under our court procedure he has a right to file interrogatories to determine the names of my witnesses, which we did, and he has the very same right, and it is highly prejudicial and it has been so ruled.
"The Court: Well, if there is any evidence that he had the name, that is true, but if he didn't have the name of course he couldn't summon her into court. I will overrule that objection. You may answer it.
* * * * * *
"Mrs. Moore told you her packages dropped right at her feet and she fell in a sitting position. I still don't know. I just don't know. I think maybe I would be able to determine a little bit better if that other friend of the plaintiff's were here.
"Mr. Kirby: Now again, Your Honor, I want to object to that. Our Courts have held —
"The Court: I didn't get the remark. What was the remark?
"Mr. Gaertner: I merely remarked, Your Honor, that we might know more about the case if that other friend of the plaintiff's were here.
"Mr. Kirby: There is no evidence showing that she is a friend.
"Mr. Gaertner: She said so.
"Mr. Kirby: She only said she knew the woman, she had absolutely no control over her.
"Mr. Gaertner: She knows where she lives.
"The Court: I think the plaintiff testified that she knew the woman.
"Mr: Gaertner: Certainly.
"The Court: And that the woman was a friend of hers, that is my recollection. It is a matter for the jury."
The question is not entirely free of difficulty. The situation presented bears unmistakable resemblance, in certain important respects, to the Belding case, supra. There plaintiff's argument (for which the judgment was reversed) was to the effect that witnesses having knowledge of the accident (mere passengers on the bus whose names were taken by defendant's operator at the time of the accident) were under the control of defendant, or whose names were under the control of defendant, and they had not been called by defendant. But in that case there was no question as to the fact of a casualty having occurred, nor of the obtention of names by the operator at the scene, and (for whatever difference, if any, it might make) plaintiff's knowledge thereof. In the case at bar not only was it denied that there had been a casualty at all, but it further appeared from plaintiff's proof that she talked to no one about it at the time of the accident, made no outcry, and made no complaint to the bus driver or other person. She produced only one witness (other than herself) as to the fact of a jerk, and her falling or lying on the floor of the bus. Then it was developed on her cross-examination that her acquaintance or friend, Mrs. Corrine, was present, and presumably had knowledge of these facts. Defendant, by invoking the appropriate discovery procedure, could have obtained this information before trial if, in fact, it did not already have it. And so plaintiff's position was not wholly unlike that of this very defendant in the Belding case — in having called some, but not all of the passengers of whom it had knowledge; and, unless the case is distinguishable for the reasons presently to be noticed, we would be disposed to view the challenged argument as coming within the condemnation of that case.
Looking to the first of the objections made by plaintiff, as above set out, it will be seen that at that point in the argument there was no charge of failure on the part of plaintiff to produce the witness except inferentially or by innuendo, and certainly, standing alone, that should not be deemed sufficient to work a reversal. And so in this situation, what do we find? It abundantly appears that the only reason why plaintiff's objection was not then sustained was that the court was laboring (whether mistakenly or not) under the impression that defendant did not have prior knowledge of the name of the witness. It will be noted that the point made in this court is predicated (in part) upon such knowledge, in support of which, and as establishing that knowledge, plaintiff points to this question and answer on plaintiff's re-direct examination: "Did you give them [defendant] the names of the people that you knew who were on the bus at that time? A. Yes, sir." If plaintiff had directed the court's attention to this fragment of her own testimony, now so strongly relied on, it is obvious the court would have restricted the argument within bounds, the propriety of which would not now be open to question. This situation is analogous, if not actually amounting, to invited error, of which an offending party may not complain.
Lastly, plaintiff assigns error upon the comment of the court (in ruling the second objection to defendant's argument) "that the missing witness was a friend of the plaintiff's." The record shows that the statement thus complained of was in the nature of an explanation of the ruling of which it formed a part, and was based on the court's recollection of the testimony. No objection was interposed to the statement at the trial, nor was the matter attempted to be preserved by the motion for new trial, and hence is nor open to review.
The judgment should be, and it is, affirmed.
All concur.