*1 358 think that
We belonged the statement witness defendant that to Klan opinion was a conclusion, supposition and and established, So far witness. as the evidence the witness had no fact upon which though Even had base statement. known the regard to be true, fact the evidence raised false issue with- proof further out reason defendant, by membership in the Klan, enmity injured, bore to the so as to show motive. development
A generally wide latitude is allowed of evi- evidence, however, to show dence motive. The adduced that re- gard competent admissibility must be and gov- relevant. Its is erned its and connection other facts circumstances. Here connecting ap- no facts or circumstances with the Klan testimony peared. The of the witness to defendant’s connection nothing Klan than opinion. with the more his or amounted belief testimony the mental state of defendant involved toward the witness, apparent fact, upon which based an was not rather on figuratively felt, what the witness conceived instead of what he knew, resulting that his perceived substantially conclusion was reasoning faculty. This was not aided evidence that was of one of the five senses so as render based the result it ad- prejudicial entertain no That it was we doubt. missible. cause reversed remanded. is coming PER cause into Court en Banc Di- CURIAM: This opinion by Davis, C., foregoing adopted divisional Two, the vision Atwood, White, J., Ragland, G. court. decision of the Walker, J., J., Gantt, JJ., concur; dissents; Gentry, Blair sitting. Wittig. Appellant, S. W. (2d) v. John
Lena 11. Bane, en 1928. Court November *2 Strubinger <& Percy appellant. Foster and Werner *3 Brachman, respondent. Hausner & Versen for HENWOOD, Causey Wittig, C. Lena sued John in the Circuit City $10,000, Louis, damages of St. Court the sum of alleging husband, the death of her Charles resulted injuries automobile, while received collision with defendant’s being The negligent same driven defendant in a manner. defendant, a verdict for and from the ren- returned accordingly, perfected appeal. has dered petition specifications negligence, contains seven different plaintiff’s was submitted to the humanitarian ease only. denial, general coupled special The answer is a doctrine negligence plea collision caused of deceased that the traveling along vehicles failing and to listen for Tower Grove to look attempting to avenue before cross said from the west to the Avenue reply general denial of al- the affirmative east thereof. legations of the answer. question, years was forty-eight Charles
At the time Valley Park, of St. at a suburb Louis on the west. age, lived receiving employed as a clerk the General Com- Motors He *4 and, going of Louis in from his in north section St. to and pany Valley usually a Frisco between Park and Tower work, rode train Grove, place Grove of ear between Tower and his em- and a street 22, 1923, 6:45, evening of October 6:30 On the about or ployment. vicinity car Grove got a street on Tower Avenue of off of crossing of railroad and, station Frisco Grove while the Tower Avenue, to the east of Tower Grove collided the west side side He automobile. suffered severe fracture of defendant’s with days region, which resulted his death five in the mastoid skull sixty point, Tower Avenue this Grove was about feet At later. tracks, portion wide, middle thereof were double street-car in the and and northbound tracks. southbound Defendant was known Model, Eight Sedan, 1917 driving north on Grove his Cole Tower Avenue, forty Avenue, feet north of from fifteen Folsom ’ ‘‘ ’ the east or near street-car rail of northbound astraddle tracks. when the collision occurred. picked When up, Causey lying was his back across the east rail of the tracks, northbound with his feet extending toward the east. His and hands face were bruised or wounded, injury and no trial, was referred to the witnesses at except the facture of his skull. lights It was dark and the street lights on the street cars were up-grade turned on. was an There toward the south point on Tower Grove Avenue at of the col- lision, variously estimated per the witnesses at cent. 3% The photograph A) (plaintiff’s of the street Ex. would indicate that city engineer’s assistant Sy2 per estimate of cent approximate- was ly correct. As to how the occurred, collision a sharp there was con- flict the evidence. Sewell, years
Lowell age, testified, nineteen plaintiff, “I follows: was on the east Avenue, walking Tower Grove I south. noticed this man was out in center the two tracks Wittig and Mr. twenty twenty-five was about or south and this feet steps man taken two or Wittig three on and Mr. hit him. Wittig Mr. twenty twenty-five was or feet south of the man I when first saw the man. At that time the man was out in the middle of the street tracks, in the middle of the two the automobile which struck coming north. was Before the accident I any didn’t hear horn dry. sounded. weather point At the where the accident happened, Tower Grove is up-grade, going north. The accident happened twenty about fifteen or feet on side, this north of Folsom and Tower Grove. When man the- was struck the automobile he fell face downward. It looked to me like the struck automobile him about the It end the car. front fender. front my automobile, best I it, when first saw going twenty twenty-two or about miles an hour. The automobile didn’t speed man, slacken its before struck this that I it noticed. I didn’t any slackening speed.” cross-examination, notice On he said: I “When man was hit which way didn’t notice I he fell. think hit him. It looked to me that. like I testified in fender left front trial the former that T saw the man hit hv the end of the car. front I was hit about at the testified he radiator —abou.t at the crank. front It looked to me it was the He was hit in the left fender front. say might somewhere—I couldn’t where was—it have been front near the fender, T crank say or the don’t know. I won’t whether T say the crank or the couldn’t for sure where Wittisr’s fender. was when it struck reference to the street tracks, rail, astraddle, T pretty think it was near the east only plaintiff, close.” Sewell witness for the who said he immediately automobile at the saw time and before *5 the collision. years companions, Wrigbt of seventeen
One Sewell’s Crawford of age, said, “Look,” testified he that Sewell but when first the saw past twenty going automobile it or the man” was “fifteen feet and ‘‘ ’ ‘ ’ ‘ hour; ten or an about fifteen miles and that the automobile final- ly stop fifty sixty came to a about of man.” feet north the Joseph Eeece, testifying appearances
Everett plaintiff, got I accident, among things, after the said: “When other there the fifty man, about of defendant’s automobile was feet north and right stopped, back of the a had man was northbound street just to the west of man was a street car. It southbound was Causey’s stopped. cross-examination, height On he estimated at ‘‘ ’’ eight about five feet seven or inches. Sparr, Earl superintendent Company H. of Mendenhall Motor experienced driver, that, and an request testified at automobile plaintiff’s counsel, of a stop Eight he Cole made tests auto- running point north Tower mobile on or near Grove Avenue at question, stop dry, when the was safe street could be twenty at twenty-two per made miles hour within thirteen feet inches; per feet; and ten miles at fifteen hour within eleven and at per ten miles hour within feet. six defendant, Olsen, years
On behalf of old, Warren fifteen testi- coming “The ear fied: was down from the north —it made a going into Tower Grove was turn south on Tower over Grove Causey viaduct —that was car track. Mr. the southbound came from west, I him run front saw of this street car. The street car lighted just lights lit. front about —the up night Folsom. man ran of this accident this about ten Wittig’s in front and then feet street car into the of Mr. fender rear I standing machine—that north of Mr. left fender. Wittig Wittig’s automobile. Mr. fell street. Mr. into the feet, stopped his car about ten as near as I can remember —it has long ago my judgment ten feet farther on. been so —about Wittig’s Mr. ear when I saw it an speed of was ten miles hour. The pulled over track. wheel of ear was the northbound left He put on the two left wheels the other out and northbound crossing I going street, Mr. when car track. saw cross-examination, running.” On southeast—Icind he said: “I having forgotten horn. I remember heard a have can’t whole lot long ago. I saw the man about the accident—it has been run into rear head struck the I and his saw his head fender fender. left top Kind rear of near strike fender —not fender. top. feet, two right It was about one one-half or as well as running remember, I head I above the board. saw his hit can that. running right car. hent towards the He was I He teas over. don’t how tall a man was. He ivas I. taller than He teas remember *6 364 (indicating.)
lent over four off like That would be about feet running ground, be, of the and he was and struck his his head would I right head on the saw this rear When first automobile left fender. plainly speed. I could don’t know whether he slackened its see this man head I was on the east side stick his into rear fender. street; man. The of the ran between me and the kept fender, going. hit the street car on I saw this mams head rear left fender.” old, Newberry, years Claude at fifteen who was Olsen a running “I man the west accident, time of the testified: saw from head down. The side of street in front of a street car with his station, going past little south. street car was a the entrance running going viaduct, He was from the west side of the southeast. headlights straight The car wasn’t in front of him. The on the bright light. burning any He ran street car were other Wittig’s Mr. across from the front of the street car. west north, and the left wheel was a little over the west- going machine Mr. rail —and he ran into the rear bound track —the east left fender Wittig’s Wittig’s was machine. Mr. machine a little front of me— me. his head rear little north of He hit left fender dropped. Wittig traveling Mr. ten or eleven miles an hour I in the rear saw him. I said man stuck his head when left fen- put in, der; I I I don’t ivho the dent saw that. know saw him I his head into rear saw the man run in front run fender. left doivn, running stooping his head car—he was over—had speed I didn’t slacken its southeast. notice the automobile —didn’t any any pay This man was in—didn’t attention horn. see swerve injured running very I didn’t man look in the direction see the fast. that I the automobile. didn’t see the automobile know of.” He Newberry inquest. testified at coroner’s Both Olsen officer, Frank, police investigation Charles E. made his after the defendant had taken to a doctor’s office accident boys, Newberrv, of the accident. The two Olsen and near the scene reported they him that further testified: “T saw the accident. He It hind dented inward —the hind saw left fender fender. any bent. T I didn’t see other on the car. The dent marks running running saw and a half board. foot above my ground, board about a foot from the best is that ground. this dent was two and half feet above the It ivas dented body car, something Uke run towards the looked had into top the side—broadside. It was on the of the fender dented body. inches wide.” towards the The dent six testified a barber and owned a barber shop Concerning accident, at 919 South Vandeventer. he said: going past quarter "I was north between half six and a to seven. dark-my lights burning. driving along It was were I was at a speed, medium rate of and there was a machine ahead of me and me, passed Folsom, suppose some back of and after I I around twenty-five forty feet, something my about struck the side of machine, open car, my and I had the window on the arm that way, looked, ground, *7 and I and as I looked there was a man on the stopped about-well, remember, and I as close as I can about fifteen was, got my machine, feet from where this man and I out of pick up, holding my I was the first man to and I was him in arms, just sitting up, kind of and he was unconscious. As 1 drove my along curbing. I was between the northbound track and the any my I didn't see this man ~t time before he hit car. He came in contact with the left side. He ran into it-the side of the car bump my hit him. I didn't see him when he ran into it. The driving car was back of where I sat. I was at a moderate rate-not very fast, because I intended to make the turn there-there was lots of traffic. I intended to make the turn in Vandeventer off of Tower sixty Grove. I was about feet from that turn when the accident happened. driving along, my As I was I looked in front of car. I police- first saw the dent in the car fender after the accident when the got man examined the machine. I don `t know bow the dent there." cross-examination, On he further said: "I couldn't tell how fast I driving-it was was around nine or ten or eleven miles-at point going my guess nine or ten miles. With car I I could have stopped quicker going happen. a little if I had known it was very very heavy The man was not a tall man nor a man. Oannot you tell how tall he was-about five feet five inches." - “was that her husband five feet rebuttal, plaintiff testified ten inches tall.” Respondei~t's appeal was, by I. motion to dismiss this order of court, only ground this taken as. submitted with the case. The as signed dismissing appeal is that the affidavit for appeal signed. True, was not the affidavit does not show signature affiant, Joseph Strubinger, T. one of plaintiff's attorneys, jurat signed by the Clerk City Louis, of the Circuit Court of the of St. with the attached, seal of that court recites that the affidavit was "subscribed May 8, and sworn to" before the clerk on 1925. And the record appeal recites that the affidavit for was ified and that granted appeal May 8, an to this court on 1925. Notice of this given January 6, 1928, although
motion was not until the case was argument argued January 13, set for and was and submitted on day given, January 1928. On the same that notice of the motion was
366
6, 1928, appellant was served copy respondent’s with a brief on the merits of This, the case. course, appellant after had perfected appeal by her filing her abstract of the record and brief in this court. Thus, appears respondent treated affidavit for appeal as sufficient until one week appeal before this was set for argument on its way merits and in any prejudiced by was not irregularity complained of. In this situation of the record parties, both common sense common fairness demand a rul- ing against respondent on complaint. “No point made against the sufficiency of the affidavit in the court which the appeal taken, where, in all fairness to the trial court and objection the appellant, the made; the affidavit should have been otherwise, appellee an attorney might or his silent, knowing remain that an invalid appeal being filed, affidavit for the or had been advantage and afterwards adversary raising take of his an ob- jection for the Appeals, knowing first time the Court of that, rulings court, under the of that it could not be amended.” [State Broaddus, ex 16, rel. v. 210 108 also, Mo. S. W. See Davidson 544.] Co., 223, 686; v. Land 253 Mo. 228, 161 S. W. Clark 242 Railroad, v. 593, 472; Egger Egger, Mo. 148 570, S. W. v. 116, Mo. *8 928; v. Darrier, 222, S. W. Darrier 58 Mo. 234. The motion to dis- appeal miss the is overruled. question presented
II. The sole for our review on the merits of appeal alleged this is the giving error of the trial court in defend- ant’s Instruction which reads as follows. modified jury you “The court if instructs the that find and believe from operating the evidence while his defendant Avenue, north Tower on Grove the deceased, Charles sud denly ran moving the in across street a front of car and toward the rear side aut-o- of defendant’s ‘proximity mo^e íwmíin dose so thereto to make it impossible prevent the to his automobile defendant for colliding by highest the said deceased the exercise the from of degree operation thereof, care in your the then must in verdict be of (Italics ours.) favor of the defendant.” instruction, On the face of this it is not clear whether it was in- predicate negligence tended to on a verdict for the defendant the contributing of deceased as cause of the collision or sole as the sides, of cause of the collision. The statements counsel for both both court, argument in in their briefs and their oral this before that the contributory negligence, plea of would answer contained a indicate by instruction, jury tell that, it was intended to the that the con- plaintiff’s tributory negligence recovery. would of deceased defeat defendant, hand, in of counsel their the other the statement On argument, written jury tliat the instruction “submitted to the the theory by evidence,” of the case as shown defendant’s would indicate jury plaintiff that it was intended to tell the that the was not en- solely titled by negligence to recover if the collision was caused of appellate deceased. While there is no issue on pleadings, may it pre- be answer, well to note here that the indicated our liminary thereto, not, fact, plea reference does contain a of con- tributory negligence. part designated by so answer both parties and, apparently, by trial, special so treated them at plea injuries, plaintiff’s “that if any, to husband were caused negligence (in his carelessness,” substance), own failing to look and traveling along to listen for vehicles Tower Grove Avenue attempting before to cross said avenue from the west to the east side (Italics ours.) special plea thereof. say does not that such negligence part contributing of deceased cause of the injuries says collision and resulting death, merely that, his by looking listening, he could have avoided the collision. So much for will consider the confusion. We now the instruction viewpoints. both contributory negli- If submitted the issue of gence, clearly erroneous, it was because that issue was involved not only, after submitted her case on the humanitarian doctrine because, course, contributory negligence of deceased did liability not relieve the under If that doctrine. it sub- negligence mitted the issue of as the sole cause of deceased’s the col- because, lision, erroneous, require jury find it was it did not deceased, negligent instruction, were acts mentioned resulting injuries sole and death. cause of the collision .and require find, ignored failing In the instruction question negligence or the whether or issue of concurrent negligence concurring of defendant and collision caused words, require did not to find deceased. other whether care, highest degree of or, exercising the or not the defendant saw crossing deceased, perilous situation of while could have seen the *9 street, time, by exercising degree care, highest of to have in the the reducing by stopping automobile, his or prevented the collision, warning approach, of its or speed the deceased thereof and (No. 1) main instruction turning his automobile aside. Plaintiff-’s finding recovery one predicated on an affirmative as to properly her part negligence or on the of de- acts 'of more of these omissions escape fendant, follows, therefore, that defendant could and it finding all of such omissions or acts negative as to liability without any may that taken part. In view be of this negligence on his of it did not make it clear to instruction, conceded that must be it required anything pre- to to do jury whether the defendant proximity” his was in “close to until the deceased collision vent the 368 So, say least,
automobile. confusing to the instruction was and misleading particular. in And, this in present form, its it is sub ject to singled gave further criticism that it and undue out prominence to certain facts favorable to defendant omitted cer tain other dispute. material facts in in which were Viewed this light, jury it argument furnished the with an on defendant’s side of the enlightenment case rather than applicable of law to the rule was, to the of reasons, highly prejudicial issues fact. It for these plaintiff, therefore, to the and, must be held to be reversible error. prolonging further, by Withotit quoting this discussion from con trolling authorities, say suffice that should to this court our appeal uniformly courts of have this condemned instructions of 119, (Mo. Smercina, (2d) Sup.) 113, 1 character. v. S. W. [Schulz 120; McCarty, 162, 171, 327; 243 295 Mo. S. W. Hornbuckle v. 200; Ry. (Mo. Sup.) 198, Co., 199, v. 188 S. W. Turnbow Stewart Schnellman, 103; Dunham, 53, 63, 197 S. v. 254 v. Mo. W. Nabe Ry. (Mo. 734; (Mo. App.) S. W. v. W. App.) 731, Co., Saulan 199 S. 205; also, Hirschfeld, App. v. 89 Ill. See Aaron Co. 715.] Ehmett, (Ky.) 65 S. W. 835. Mitchell-Tranter Co. v. giving instruction,
For trial court the error of the judgment is cause remanded for another trial. reversed and the
PEE coming CUEIAM: This cause into en Banc from Court opinion C., Two, foregoing Division divisional HeNWOOd, J., adopted White, Ragland, C. the decision of the court. JJ., Blair, Walker, concur; Gentry, JJ., Gantt and Ativood and dis- Blair, separate opinion by sent in a J. BLAIE, (dissenting). J., am unable to in Part II concur —I opinion. ground
divisional is reversed on the that Instruction was comment on the evidence authorized a ver- requiring jury without to find dict for defendant that defendant negligent operation after was not automobile he saw position peril. my opinion, seen in a In or could have deceased subject properly to instruction is not either criticism. “suddenly requiring to find that deceased ran across moving car, and toward in front of rear the street automobile, proximity and in so close thereto as of defendant’s prevent his impossible for the defendant make it to deceased, by highest colliding with the said the exercise thereof,” required operation the court degree of care any ivhatsoever, negligent way be- find defendant was not re- a verdict for defendant. instruction fore could return impossible quired jury to find that it *10 highest degree of care.” prevent “by the accident exercise of certainly every respect That meant in and included care after care position peril, came into a as well as before that. deceased jury right upon instructed Defendant had the to have the theory testimony and that his wit- of the which his own accident suddenly theory prove. the deceased nesses tended to that in head down and effect of a street ran front around rear If the defendant’s automobile at the left fender. butted into impossible for de- jury found that it so found the facts and highest degree prevent fendant the accident the exercise to necessarily that deceased at no time was care, must have found it approaching and was not it in front of defendant’s automobile him should seen could or have the side in such manner that deceased prevent” “impossible anticipated to The words the collision. in- prevent responsibility to upon greater a burden of laid defendant required only upon him. The law juring than law laid deceased injuring degree of avoid highest care to to exercise the defendant required show that it was not to Under the law he deceased. prevent
impossible the accident. for case plaintiff’s request, submitted the 1, given at Instruction jury telling the After solely humanitarian doctrine. jury on the plaintiff authorize verdict facts must be found it what follows: instruction concluded against de- be favor of must “Your verdict said evidence that though you may from the find fendant, even negligence failing to look or listen guilty Charles Tower Grove Avenue.” attempting to cross said for vehicles before contributory thereby plainly negligence on jury told that ivas defense, jury found if the the other part ivas no of deceased in conflict 1. was not Instruction in said facts outlined Instruction 5 amounted to non-direction At most Instruction 1. with Instruction not misdirection. on the evidence 5 was a comment Instruction The criticism that makeweight. I do opinion largely majority appears in the How could the criticism. justly subject agree to that .is more have been constituting defendant’s defense facts ultimate ? they in that instruction concretely than were to the submitted and, if witnesses defendant were testified to Such facts true, respon- slightest exculpated from the completely entitled to Defendant was sibility the deceased. for the death of have tell jury and to the court submitted to have those facts for the should return verdict facts, found the if it that, defendant. my mind the case leaves in this reading of the record A careful right party and should for the that the verdict firm conviction *11 disturbed,
not be unless we are convinced that error was committed against plaintiff actually prejudicial which influenced weight testimony clearly the verdict returned. favor, although duty upon defendant’s rested to establish Only negligence by preponderance testimony. defendant’s of the persons position four to the testified movements deceased just preceding immediately attending and defendant fatal standing accident. placed Lowell Sewell deceased as the street twenty approaching automobile, about feet in front of defendant’s testimony that the could have found from his that defendant him striking have seen have him. He could time to avoided also testimony testified that heard no This is the which he horn. author- jury. At a trial, ized the submission of case to the former witúess testified that deceased’s head struck the automobile on the trial, crank.” At last radiator about “at he testified that deceased struck the left front fender of defendant’s automo- testimony of apparently defendant’s two bile. disinterested suddenly witnesses was in substance that deceased ran across the moving and, down, street car in front head ran di- rectly left rear fender of defendant’s automobile. into the The testi- mony and both his witnesses also tends to show of defendant did not see the deceased before the accident and could not expected reasonably to see before struck have been the auto- weight evidence, deference to the appropriate With mobile. accepted theory very properly defense and unan- No to that a verdict effect. sufficient imously returned reason for appears, respectfully and I verdict dissent disturbing that opinion. majority in the contrary. reached Atwood and conclusion JJ., Gentry, concur herein. Roger (2d) 40. Davison, Petitioner. 13 S. W.
Ex Parte Banc, 1928. en November
Court