*1 OCTOBER TERM, 1925. The court was not asked to further There rebuke counsel. complaint. is no merit in this formally charged
The information the defendant with degree. fairly murder in the first The instructions sub- jury mitted the case to the and the verdict was warranted judgment the evidence. The therefore affirmed. White, J., concurs; Blair, J., concurs the result. Appellants, FLOYD E. CREWS and ETHEL CREWS, FLEMING, M. FRANCIS WILSON FRED W. Company. Railways City Receivers of Kansas Two, February 26, Division 1926. Credibility
1. INSTRUCTION: of Witnesses. usual instruction credibility court, witnesses, approved by tell- often this ing jury, any among you things, other “if that that believe honestly any witness is mistaken as to fact about which material gave testimony, you liberty disregard such witness are at to part testimony,” you such witness’s “if but believe that wilfully falsely regarding witness has sworn material fact some gave liberty testimony, about which such witness dis- regard part testimony, and disbelieve such witness’s or the testimony,” again approved; whole of such witness’s and the plaintiff being interested, witnesses both defendant contradictory testimony being very their decided issue to be jury, giving error, of such an instruction but is not proper. Negligence: Contradictory -: Car under Control: of Humani- Theory: negligence tarian Inconsistent Theories. Different acts of which are consistent with each other be united in the same petition, petition, separate or the same count but two jury. allega- inconsistent theories cannot be An submitted servants, tion that defendants’ street car which six-year-old attempting struck and killed son as he was saw, ordinary public street, cross the exercise of care coming perilous position or in have seen him into in front could car, approach, time, ordinary care, while its oblivious him, carelessly injuring avoided but legal charges so, negligently do effect failed to the car negligently but failed to use the the motorman was under COURT MISSOURI, OE SUPREME
Crews Wilson. stop injury, means at hand to and must time to avoid the against plaintiffs true, he taken did and therefore the court refusing err in found from the to instruct *2 employees approached cross- evidence that defendants’ the street ing having further find “without said car under and if negligent hav- at without to run said car said time plain- ing control, you the the same under find the issues for will already, tiffs;” especially so, at the court had where doctrine, request, given which the humanitarian instruction on only evidence, upon theory, which the case was the in view of the jury. submitted to the could have been Speed. Equivalent to “under Under Excessive If --: Control: 3. petition speed” should than is a better term “excessive control” simply speed, allegations of excessive neverthless contain allegations legal under con- state that car was which in effect trol, “under should ask that words least the instructions or at meaning excessive and understood to be taken are control” speed. Following Language Petition: Inconsistent with Others. -:4. pe- language which follows for defendant An instruction given plaintiff error, for with one inconsistent is not tition subject plaintiff’s not have been should same complain. he cannot of which one error is Cyc., 2619,p. 708, Pleading, Error, J., n. 21. Appeal 31 4 C. Section 93; p. 16; p. 1736, p. 1734, Cyc., 1724, Trial, 28 n. n. p. 120, n. 38 n. 87. New. Lucas, O. Court.—Eon. A. Circuit Appeal Jackson from Judge. Affirmed. appellants.
Swearingen é Finnell giving 2 Instruction (1) erred The court (a) often held lias This court request of upon this in- to base no evidence there is where Sealy, 257 Mo. give v. Keeline to it. is error struction Rys. v. 289; Co., Lass 149 Railroad, Mo. v. 498; Schmidt App. Sampson Mo. Railroad, 419; v. 156 70;W. 233 S. 585; Hill v. Co., Dillon, 209 W. S. Wyatt Coal Central v. TERM, 1925. 645 y. Crews Wilson. App. (1)b er-
176
If
The instruction
vicious.
Mo.
greater
another,
ror can he
instance than in
we
one
say
Plaintiffs
would
that this instruction
climax.
except
had no “interested” witness
that were
facts
plaintiffs
ac-
true. Neither
conceded
he
saw
plaintiff’s
cident. None
shown to have
witnesses were
by any
feeling
been moved
plaintiffs
“relation
for or
or defendants.” None was related to
recovery beyond
or
every-day
interested
their
the interest of the
speak
concerning
individual
mat-
the truth
question.
(2)
plain-
refusing
ters in
The court
erred
(a)
many
tiff’s Instruction 7.
As
causes of action as
may
consistent therewith
be submitted with humanita-
a
DeRousse
Rys.
rian
Poster v.
v.
case.
235
Co.,
1070;
S. W.
App.
Rys.
293;
Mo.
Dunn
West,
Haley
592;
Co.,
S. W.
Mo. 15.
Railroad, 197
Plaintiffs
submit the
*3
any
humanitarian doctrine
one instruction and
other
theory
pleaded
proved
Taylor
of the case
in another.
and
Ry.,
operatives
v.
Charles
Sadler
Ben L. White for
(1)
request
Instruction 2-d,
de-
proper.
defendants
There
was abundant evidence on
Rys.
which to base it.
233
Lass
Co.,
71;
S. W.
Hinton
v. Railroad
Co.,
396;
S. W.
Pelster v. Shamrod Boiler
"W;
(2)
requested by
plain-
Co.,
S.
Instruction 7,
refused,
properly
(a)
allegation
tiffs, was
is too
general
comprehensive,
lacking
specifica-
too
tion
“negligently
is meant
of what
the clause
careléssly
stop.” Applegate
failed to
v. Railroad, 252Mo.
Ry.,
173; McNanamee
135 Mo. 447; Waldhier v. Rail-
(b)
allegation
(2) It is further said car people gong, danger, to warn with bell or negligently of said car failed to motorman gong purpose informing for the Crews sound said Jack approach of said car. charges (3) guilty neg- It were defendants ligence failing to have the car under control which plaintiffs’ and that killed he was reason son, killed thereof.
(4) foregoing It is averred that reason of the negligence, acts of was run son over and killed and for which seek aforesaid, to recover $10,000 damages, etc. general The answer was a denial. jury,
The case was tried before a and on November 16, verdict was returned in 1922, favor of defendants. Judgment entered form verdict afore- in.due said. Plaintiffs, time, in due filed a motion for a new trial, appealed by which was overruled, thé cause them this court. appears morning from the evidence, that on the plaintiff daughter,
of March Ethel 22,1921, Crews her sent then, Evelyn, eight years about and her Jack son, old, years get then Crews, about six old, an errand to some necessary In cookies. order to do it was errand, this the children 'to cross 43rd near its Street, intersection *5 SUPREME COURT OF
Crews Wilson. Forty-third City, with. Main Street Kansas Missouri. Main north and runs east west and Street Street has double-track south. said street-car Each streets appropriate with switches and cross-overs. The lines commonly above and cross-overs were what are switches spring plug or called and were not electrical switches, Rockhill-Independence The Avenue switches. street cars move and south on Main Street, north east and west reaching on 43rd the one or the Street, other switch- es their As mentioned, at intersection at 43rd Main. they regular the cars move passenger on 43rd Street, west make stops from ten to fourteen feet of Main. east street east of Main is "Walnut runs Street, first north and south. The block between Main and Walnut long. is about 250 feet From a Main ‘Walnut to there is slight switch-point grade. The down of the west-bound seventy seventy-five track 43rd on Street is about or feet switch-point, east is an of Main Street. electrical plug. spring meeting a but or When two cars —one east-bound on the south track and the other west-bound approaching on the north track —the west-bound car, switch-point, required slow down until rear pass guard switch-point trucks this,— possible split switch. The width each track four eight space inches; feet and and the width or between the east-bound and tracks west-bound is five feet. The dis- tance from the south curb 43rd Street, south rail twenty-three or north west-bound track is about on structure, feet. The street either side of the rails rough Street, 43rd consists which are cobble-stones, some coarse, an inch or about inch half and top above the of the rails. Evelyn and Jack
When Crews reached south curb moving on 43rd Street, car was east-bound on the south moving track and another west-bound on the north track. sounding motorman on west-bound ear was his gong slowing per down to about six miles hour. The completely east-bound had rounded the curve moving directly passing switch and was east and in front TERM,
Crews Wilson. Evelyn of said when children. had hold of Jack’s hand they pass, reached the curb let the car *6 suddenly away as bnt Jack broke sister ran from his and immediately fast he could the as behind east-bound directly and At this'time, front west-bound of the car. according- passed switch-points the cars had the were ly moving speed, with the usual the travel- west-bound car ing eight per or ten miles hour. The evidence discloses directly ran or behind deceased within two three feet the east-bound was there within a foot car. He about eighteen or the north rail of the east-bound inches south of track then when the motorman first him. saw He was from five seven feet south of the west-bound car two or feet its three west of front. The motorman keeping pedestrians. a lookout for The motor- instant the stepped pulled man saw deceased, he the the sand, on points lever, reverse notched two the controller. quickest possible way emergency This stop, the to make an stop fifty and he made the within about feet. part- deceased struck the fender and front of the car, under killed. it, and stop twenty-five
A within fifteen to shown feet was good the evidence to be a one. important Such other matters be as deemed will be considered later. charged giving
I. court with error in Instruc- tion at the instance of 2-d, defendants. It reads as fol- lows : credibility judges
“2-d. The are sole weight the witnesses and of the and value to be testimony. to their you determining give
“In the credit will to a witness you weight and the and value will witness’s attach to a testimony, you should take into consideration the conduct appearance upon of the witness the stand, the interest’ any, w^ness, ^ie in the result Credibilityof actuating trial, the motives the witness witnesses! testifying, the witness’s feel- relation to or COURT OF SUPREME probability or ing for or statements, oppor- or witness’s improbability informed be to observe tunity had witness testimony, gave the witness to matters respecting other- or truthfully inclination to speak of the witness wit- of such knowledge wise within regarding matters * ness. mistaken honestly any “If believe that you witness gave witness which such material fact any about that part at testimony, liberty'to disregard are you wit- But if believe that testimony. such witness’s some material falsely regarding wilfully ness has sworn testimony, you fact about which such witness gave such wit- liberty part and disbelieve that disregard testimony. of such witness’s testimony, ness’s whole *7 with all taken “All these matters into account your it is evidence, in the given facts circumstances tes- such credit the province to each witness give and value timony weight of each witness as such ’’ deem proper. received instruction, substance, The in above has a of through seventy of this court approval running period as follows: many in some of which are years, decisions, 23 l. c. Mo. l. c. v. Mo. 159; Wimer, State v. 15 Gillett Mix, 40 78; 25 Mo. 553; Brown, v. Mo. Paulette v. Dwire, State Co., Ry. v. 63 Mo. l. c. Brown 57; 166; l. c. State v. Elkins, 162; v. 107 Mo. l. c. McFadin 600; Patrick, 66 Mo. l. c. State l. v. 134 Mo. l. c. 270; Wright, v. 120 Mo. c. State Catron, 406; l. v. 208; Swisher, 159 Mo. c. State Hudspeth, State v. v. 561; l. c. v. 191 Mo. l. c. State 7; Bond, 186 Mo. State c. 223 l. 323; Shelton, 194 l. c. v. Mo. Feeley, Mo. State v. 259 625; 274 Mo. State 138-9; Marlin, State v. Barnes, S, l. 219 and Houston, l. c. v. 263 434; S. W. State W. c. l. Brown, 275; c. State following; 270 S. W. State l. c. 1062. Hogan, S. W. of testimony
There was a conflict sharp between in of the distance plaintiffs and that as to defendants car at the time and stopped, could been Glove, John R. Bjr way illustration, accident. TERM, 1925. company, gave formerly it who for defendant had worked opinion, going could as six miles hour the car his going per instantly; stopped hour miles ten have been stopped Cockel, in feet. Owen could have two been boy, killed the who motorman in did that he still the service of testified everything possible stop ran it then the car and that George de- fifteen to a witness for seventeen feet. Harder, opinion, gave it fendants, service, and still in their his twenty to the ear that twenty-five could have in from been employ de- feet. Other witnesses, substantially fendants, testified It was the same facts. question jury for the to whether wit- some of these honestly were nesses recklessly whether mistaken, or testified falsely respect to this issue. sharp testimony There awas conflict between the and that in behalf of defendants, as company requiring whether there was a rule motor- stop approaching point, men to cars when switch meeting moving opposite etc. direction, plaintiff Floyd E. Crews, father one who at deceased, railway company, time had been a motorman for the ap- swore there was such a rule in existence plied switch-point controversy. to or cross-over in This directly evidence contradicted several of de- employees. weigh- right, fendants’ had the ing the evidence, take into consideration the fact that Floyd Crews was father deceased an interested *8 testimony witness; and the that of defendants came from men who were still in the service of the road. during
Several progress other matters occurred the of the giving trial that the warranted court in the above applied instruction. It alike to the for witnesses both properly and and stated the law. II. refusing contended, that court the erred in plaintiffs’ instruction Omitting numbered seven. the parts, formal controversy, about which there nois it reads as follows: SUPREME COURT OP y.
Crews Wilson. you jury and be if find that “The instructs the court was Jack Crews in case lieve from this the evidence car killed run and struck, over knocked down, if . and . . evidence, in defendants mentioned you further -find and believe from the evidence employees charge the defendants' in Car under Control: approached their street cars Main Street from Inconsistent havin~g Theories. Walnut Street without said car under find and believe and further control, negligent car run said to from evidence having under con at said time without same said Jack and as a direct result thereof trol, Crews car, run and killed said knocked over struck, down, plaintiffs.” (Italics you will then issues find ours.) things, petition, among charges sub- in other car, servants in of said stance, that defendants’ by ordinary plaintiffs’ care have son saw, coming seen, could perilous position -car,
into in in front said by ordinary approach, time, care, while oblivious in of its injuring stopped plaintiffs’ car avoided have said carelessly negligently so. son, but failed do petition, This taken averment of which must be charges legal plaintiffs, in true effect, guilty negli- was under but the motorman was stop gence failing use hand the means at theory in time to the accident. human- avoid This fully itarian rule of submitted law plaintiffs’ (1), complete Instruction One which was with- plaintiffs, itself, a verdict for based on authorized reading the facts therein. casual The most given, Instruction One, Seven, refused, and Instruction clearly will indicate that inconsistent, with other. irreconcilable conflict each If the car was contemplated not under control as 7, Instruction then ordinary how could the motorman the exercise of care have the car in time to saved the life of the contemplated supra? child as One, Instruction It is negligence that different acts of which are consist- true, *9 653 TEEM, petition, ent with he each united the same other, petition, or the of same count but it needs no citation of authority position trial court can- sustain the that the sep- jury by legally submit two to the instructions negligence. arate There and inconsistent theories of go some doubt as to whether the were entitled they jury to the in this if mer- at all but had case, properly it itorious of submitted to the action, cause jury contemplated in under the humanitarian rule as plaintiffs’ (1), author- instruction numbered one recovery ized within found in itself, the facts were a their favor. by appellants’
We are “under informed, brief, that speed. control” is much better term than “excessive If a car control it is not under run at an excessive speed.” appellants'to If was the intention take the of jury verdict of on the issues as to whether motor charge guilty negligence, man in of said car was of at running the time and an at accident, said car speed, excessive rate of so that could not have been killing why in time to avoid the son, accordingly, did not frame their instruction instead submitting jury by an of law issue use of the [Great words “under control?” Northern Railroad Co. Young, 154; 170 Fed. Central Railroad Co. v. Hooker, petition charge 359.] 200 Fed. does not defend negligence running ants with excessive an speed rate of and, issue character was not hence, pleading’s. "plaintiffs under admissible If counsel considered failure to have the under being operated tantamount to that it anat speed rate excessive de instruction should have meaning leaving fined the of “under control,” instead guess meaning as a matter of law .the of said words. Ry.
In Great Northern Hooker, Co. v. Fed. c. l. Appeals, 159, Vandevanter, J., of the Court of but now Supreme discussing member of the United States Court, control,” “under said: SUPREME COURT OF v. Wilson.
Crews *10 the reason- held this court “Moreover, is the court rules to be determined ableness of such is question question of a a of law, ’’ fact. approved ruling* The in the Hooker case was Gray, Young, 200 Fed. l. 364-5 in c. J., appeals Railroad v. Central applied to Instruc sound when to us.as in tion refused this case. Seven Upon a decided- full of the we are case, consideration only go ly opinion entitled to of the were jury, as sub- rule, if at under the humanitarian all, plaintiffs’ One, under Instruction which was com- mitted plete appellants a for itself, verdict within authorized The court committed no error the facts-stated therein. refusing said Instruction Seven as asked. in plaintiffs’ Instruction
III. It is claimed One de- Instruction in of conflict with behalf Three, fendants. petition charges that the motorman or could saw “coming perilous plaintiffs’ position son a into seen perilous position of said etc. In
and in front car” language, given uses the 3, struction plaintiffs’ coming into “could have seen son ., ..... ... Inconsistent instruction, .. already perilous position, perilous posi car,” front of tion in etc. The defendants’ language three numbered instruction follows proper petition If form. error com and is failing Instruction One to fol mitted, assignment language petition. above low the merit and overruled. without carefully fully examined We have consid- IY. questions presented remaining in the briefs all the ered, opinion, are of case of counsel. was well We counsel; that error by court and no was committed tried appellants progress during* trial, the- can TERM, 1925. v. Bunton. State complain. legally judgment. accordingly affirm the We Higbee, concurs. C., opinion foregoing
PER CURIAM: The Railey, adopted opinion C., is as the court. All judges concur. Appellant.
THE STATE E. A. BUNTON, February Two, 26, Division 1926. Deposits. *11 EMBEZZLEMENT: Bank Cashier: Conversion of Evi- by State, tending defendant, dence offered to show that who ego, money thirty the bank’s alter withdrew excess dol- depositors, lars from the accounts several without their consent bank, deposited and without the consent of the his own it to . purposes own, account and afterwards used of his makes go charge case to aon of embezzlement. Prejudice.
2. FAIR TRIAL: General The record establishes defendant, charged moneys embezzling with of customers deposited bank, naturally in his which is a tends to prejudice against accused, create was not accorded the fair impartial guaranteed by spirit trial the letter and Constitu- tion and other laws of this State. Judge. judge, sitting 3. -: Partisan The trial in a case charged the defendant with criminal acts which resulted moneys the posited of a with de- failure bank and the embezzlement of personal customers, particularly his care- should be dispassionate, unprejudiced judicial calm, ful at- to exhibit a throughout trial; judicial titude and because attitude contrary maintained, partisanship not but was fre- undue judgment quently judge, manifested trial is reversed and the cause remanded. Partiality: Objections.
4. -:-: Effect of Conversations: Both judicial sides be alike in a criminal trial. should treated of con- fairness to allow the to show the substance and effect State used; versations, require prove very language but defendant to State, objections objections but overrule nor to sustain made upon grounds to the same character of made defendant identical examination.