146 S.W.2d 627 | Mo. | 1941
Lead Opinion
This is an action, under the Federal Employers' Liability Act (45 U.S.C.A., secs. 51-59) for $50,000 damages for death of plaintiff's husband. The jury returned a verdict for the full amount sued for, after which the trial court ordered aremittitur of $20,000. This remittitur was made and judgment was entered for $30,000. Defendant has appealed from this judgment.
This is the second appeal in this case, former judgment (for same amount after same remittitur) having been reversed and the cause remanded because of prejudicial argument by plaintiff's counsel. [Hancock v. Kansas City Terminal Ry. Co.,
Defendant's first assignment is that "the trial court erred in the admission of evidence of witness Weston, a brother of Mrs. Hancock, in permitting him to answer the question of plaintiff's counsel whether McCormack came to the home of deceased's widow and stood by the coffin while her husband's body lay there awaiting burial and that he was shaking and showing emotion, and that Weston then followed him out, after observing what he had described, and when he asked him how the accident happened to John permitted him to testify that McCormack said, `I and John got mixed up, we was going down to couple on to some cars and I got over on the south end of the footboard in a position to make the coupling, thinking that John would get on the footboard next to the drawbar and we came together.'" Concerning this, defendant says: "Whether McCormack shook or showed emotion while standing by the coffin was not a pertinent issue in the case and therefore was not the subject of impeachment. Furthermore, the evidence as a whole was inadmissible since there was no proper identification of McCormack by Weston."
The foundation for such impeachment was in McCormack's cross-examination by plaintiff's counsel, as follows:
"Q. . . . Now, after this thing was all over and while the body of this man lay out at his home, you went out there, didn't you? A. Yes sir. . . .
"Q. Do you deny that you stood before the coffin there, shaking? A. I didn't.
"Q. Do you deny he (Weston) followed you out and asked you how Gene Hancock lost his life? Do you deny that happened? A. Yes, sir. *171
"Q. Did you have any talk with Mr. Weston? A. No, sir." (He also denied making the specific statement above set out.)
As to the matter of identification, defendant cites Janis v. Jenkins (Mo.), 58 S.W.2d 298. However, no objection was herein made on the ground of identification, and Weston definitely stated that McCormack was the man he saw and asked how the accident happened, while in the Janis case the witness said that "he could not testify that the man he talked with was Stevens" (the driver, it was claimed made the inconsistent statement), and that he "would not go on record saying that it was he." Weston only said that he "had never met McCormack before," but expressed no doubt as to his identity. This distinguishes this case from the situation in the Janis case.
As to the question about the above mentioned statement alleged to have been made to Weston by McCormack, the record shows the following:
"MR. LATHROP: Wait a moment now. I object to that question as pure hearsay, not admissible in evidence, not binding on this defendant.
"THE COURT: Sustained in part. In that, gentlemen, you will not consider this testimony here in determining the issue of negligence or no negligence. But it should be considered by you only as to the credibility and weight that you may give to this testimony, together with the testimony of the witness, McCormack. Answer the question yes or no. (Exception by defendant.)
"MR. LATHROP: Wait just a minute. May I make a request?
"THE COURT: Yes.
"MR. LATHROP: I request that your Honor further instruct the jury that this question, if answered in the affirmative, even if believed by the jury, is not evidence and must not be considered as evidence, by the jury, that the occurrence happened in the manner related in the question.
"THE COURT: I, in substance, have so directed them, but you are directed in the language of Mr. Lathrop.
"Q. (By Mr. Popham) Now, tell the jury whether or not Mr. McCormack, at that time, made to you that statement? A. Yes, he did."
No further action was requested at that time. The statement was, of course, inadmissible as evidence "that the occurrence happened in the manner related in the question." [Shelton v. Wolf Cheese Co.,
"Q. (By MR. POPHAM) While he was standing there by that coffin, tell the jury whether or not he was shaking and showing emotion.
"MR. LATHROP: I object to that as leading and suggestive and wholly immaterial to any issue here.
"THE COURT: Overruled. (Exception by defendant.)
"Q. (By MR. POPHAM) Answer yes or no. A. He did seem rather nervous and upset.
"Q. And was there anything about his conduct there that caused you to follow him out and ask him some questions? Answer yes or no.
"MR. LATHROP: I object to that as calling for a conclusion of the witness —
"THE COURT: Sustained."
[1] It will be noted that defendant's first objection was only to the form of the question and its materiality. It will also be noted that plaintiff did not show by Weston that McCormack "was shaking and showing emotion." Instead of answering this question "yes or no," he made an answer which was not responsive, which showed nothing as to what McCormack actually did, and was in the nature of a conclusion, by saying: "He did seem rather nervous and upset." Defendant did not move to strike out this answer, or any part of it; but did object to the next question about McCormack's conduct on the ground that this was "calling for a conclusion." This objection was sustained and there were no further questions about McCormack's conduct. In this situation, we cannot hold that there was any reversible error in the rulings on impeachment testimony.
Defendant's further assignments are excessive verdict, even after the remittitur made in the trial court; and that such excessiveness was the result of passion and prejudice so that it cannot be cured by remittitur. As evidence of passion and prejudice, defendant points to the size of the original verdict ($50,000); to the fact that it was returned in twenty minutes after the case was submitted; and that plaintiff's counsel asked the jury to render a verdict for $50,000, the full amount sued for (also suggested in counsel's opening statement) although this court's opinion on the former appeal said that the evidence did not warrant such a verdict. [On the two latter points, see 64 C.J. 1019, sec. 808; Maurizi v. Western Coal Mining Co.,
[3] Defendant cites Gardner v. Stout,
[4] We know of only two death cases in this State, under the Federal Employers' Liability Act, in which judgments have been affirmed for $30,000, without any element of conscious pain and suffering. [These cases are Moran v. A., T. S.F. Ry. Co.,
It is, therefore, ordered that, if plaintiff will, within ten days, enter a remittitur of $5,000 as of the date of judgment, then the judgment will be affirmed for $25,000 as of its date. Otherwise, the judgment will be reversed and the cause remanded.Bradley and Dalton, CC., concur.
Addendum
The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur.