LEE R. HARDWICK V. KANSAS CITY GAS COMPANY, a Corporation
No. 38608
Division Two
March 6, 1944
Overruled, June 5, 1944
180 S. W. (2d) 670
There was no occasion for any charge to be made against Jennie Morrison by the Randlemans. They were receiving a share of the crop for their labor. Any labor performed by Mrs. Randleman prior to the death of James Morrison, if she was not paid therefor, was a charge against his estate. That is not now involved. It is also evident that under the terms of the rental there was no occasion for Jennie Morrison to take advantage of the power of disposal for her own needs of any property she received under the deed. The evidence disclosed she had personal property of her own which she bequeathed to Mrs. Randleman. The point made that the devise of the real estate was in payment of labor performed for the benefit of the testatrix is without merit and must fail.
This case cannot affect the title to the portion of the land sold to the school district. The district is not a party to this suit and therefore is not bound by any judgment that may be entered in this case.
The trial court entered judgment for the defendants who had had possession of the land. It was therefore not necessary to consider the rental value of the land or to adjudge the equities existing in favor of the defendants. Upon the meager record presented we are unable to adjudicate that question. When the case reaches the circuit court on remand that court can, upon a hearing, adjudge the rights of the parties. The defendants should be permitted to plead and present any equities that may exist that are allowable in such cases.
The judgment of the trial court is reversed with directions to enter a judgment for plaintiffs decreeing them to be the owners of the land and also to adjudicate the question of an accounting between the parties to this suit. It is so ordered. Bohling and Barrett, CC., concur.
PER CURIAM: - The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.
Charles M. Miller for appellant.
BOHLING, C.-Lee R. Hardwick prosecuted this action against the Kansas City Gas Company, a corporation, and the Metropolitan Life Insurance Company, a corporation, on account of the death of Margaret T. Hardwick, his wife, in front of the Grand avenue entrance to the Grand Avenue Temple building, Kansas City, Missouri, at about 5:25 P. M. on November 17, 1939, while she was waiting for him on the sidewalk. A natural gas explosion, ignited by a match struck in the basement of the building by an elevator boy searching for a dropped coin, hurled Mrs. Hardwick and concrete blocks torn out of the sidewalk into the air and she fell into the basement. She died from the injuries received a few hours later. The jury returned a verdict for $10,000 in favor of the plaintiff and against the Gas Company and also in favor of defendant Life Insurance Company. The Gas Company appealed. There is no contention that plaintiff failed to make a submissible case. The Gas Company alleges error in the admission of certain depositions, the giving of two instructions, and the refusal of a verdict first returned by the jury.
It was plaintiff‘s theory that the Gas Company buried and maintained its gas main in Grand avenue at an unsafe depth, say 10 to 15 inches below the base of the street pavement; that it had broken as
The trial of this case commenced May 18, 1942, and ended June 5, 1942. Most of the time was consumed by defendants, each of whom admitted plaintiff‘s right to recover and endeavored to throw the blame upon the other. The action was instituted August 21, 1940, and in February, 1942, was set for March 23, 1942. On March 20, 1942, counsel for defendant Gas Company was served with notice on behalf of defendant Life Insurance Company to call up for hearing on March 21, 1942, its motion to shorten the time for the giving of notice to take the deposition of witnesses in Dallas, Texas, and Tampa, Florida, on the stated ground the statutory allowed time would not permit movant “to take the depositions of said witnesses before the case is reached for trial,” asking the court to fix “the time for taking said deposition in Dallas, Texas, on March 27, 1942,” and “the time for taking the deposition in Tampa, Florida, on March 31, 1942.”*
Plaintiff answers defendant Gas Company‘s contentions on their merits. We understand he does not take the position that the discretion to be exercised by trial courts under
To properly grasp the situation we mention as a foreword that the record indicates there were at least ten actions pending against defendant Gas Company arising out of the occurrence. In one action the Metropolitan Life Insurance Company was plaintiff but in the other nine it was a codefendant with the Gas Company. The court sustained, according to the record, the motion of the Metropolitan Life Insurance Company in five of the cases (including the instant case) and of the “plaintiff” in five of the cases (including the case wherein the Metropolitan Life Insurance Company was plaintiff) to shorten the time for notice to take depositions. The deposition of Ralph Bohny, taken in Dallas, Texas, on March 27, 1942, and read in evidence by plaintiff Hardwick carried the caption of the ten cases.
At the hearing on said motion the court was informed that “all the plaintiffs” had agreed to the motion but that defendant Gas Company objected. Thereupon the attorney for the Gas Company was sworn as a witness. He testified, among other things, that the attorney for movant Life Insurance Company informed him two or three months before that these witnesses were in the Army and that movant was not going to be able to try the cases; that movant had done nothing to take their depositions; that the cases were too important to trust to a letter to some local counsel for the taking of the depositions; that he hoped to be present at the taking of the depositions; that “this is a serious matter,” indicating that the action of the Life Insurance Company against the Gas Company was the “main case“; that (quoting:) “Your honor knows that I have cases set in this court for next Monday and right along, and that I cannot spare the time to get away for a week or ten days, and it will delay your docket here. Now those are facts that I am putting in the record here which your honor well knows“. And, with respect to counsel for “plaintiffs” agreeing to shortening the time: “He has got nothing to lose. He has got two defendants sued and it is a fight between them.” There is an admission in the record that counsel for the Gas Company had cases set.
The court took the motion under advisement and thereafter on March 24, 1942, the day following the date the instant case was set for trial, made an order sustaining the motions aforesaid in all ten cases. In each instance the defendant Gas Company excepted. On March 28, 1942, defendant Gas Company filed a motion to set aside the order shortening the time to take depositions. On May 2, 1942, defendant Gas Company filed separate motions to suppress the depositions in the instant and the other cases. These motions were overruled on May 16, 1942, the Gas Company excepting. When the deposi-
The instant application, from its nature, called for facts dehors the record. The application was contested. It was not supported by affidavits. The Life Insurance Company was the applicant. It had the affirmative; the burden of proof. Its application did not prove itself. Hurst Automatic Switch & Signal Co. v. Trust Co. of St. Louis County (Mo. App.), 5 S. W. 2d 3, 4[3]; Orlando v. Surwald (Mo. App.), 47 S. W. 2d 228, 229 [5]; Bullock v. B. R. Electric Supply Co., 227 Mo. App. 1010, 1014, 60 S. W. 2d 733, 735 [6]. The request on March 21st to take depositions on March 27th (or thereafter) in a case set for March 23rd exploded the stated emergency for taking the depositions “before the case is reached for trial.” Sustaining movant‘s application on March 24th, the day following the date set for trial, destroyed the pleaded emergency existing as of March 23rd, the then trial date. The case did not proceed to trial until May 18th, more than seven weeks after the determination of the application. Although the testimony of defendant Gas Company‘s counsel stands uncontroverted and was at least in part admitted to be facts, the court sustained the motion without a scintilla of evidence in support thereof and upon a record which destroyed the stated ground for relief. It is not the weakness of a defense but the strength of the issue that sustains an affirmative finding for one having the burden of proof. If the Gas Company‘s evidence was not believed, surely we should not hold it established just the exact opposite as a fact. The scintilla of evidence rule does not hold in Missouri. Wallingford v. Terminal Rd. Ass‘n, 337 Mo. 1147, 1159, 88 S. W. 2d 361, 366[6]; State v. Gregory, 339 Mo. 133, 141, 96 S. W. 2d 47, 51. The terms sufficient and insufficient as applied to evidence imply some evidence. Sufficient connotes more than insufficient evidence, and insufficient evidence covers evidence falling just short of the amount required for sufficient evidence to any lesser amount, but still implies some evidence no matter how slight and unsatisfactory. Here, we have no evidence in support of the application. In holding that no case was made because the witness was incompetent and unreliable on account of not understanding the nature of an oath, State v. Jackson, 318 Mo. 1149, 1154, 2 S. W. 2d 758, 760 [1], stated: “A judgment cannot be based upon testimony produced by a witness who is not put under the pains and penalties of perjury. The party affected by the testimony has a right to that assurance that his rights are not jeopardized by reckless statements.” Unsworn remarks of counsel in opening statements, during the course of trials or in arguments are not evi-
It is regretted that matters of this nature are permitted to arise (apparently somewhat inadvertently in the instant case) to delay final adjudications. However, the right of a litigant to cross-examine witnesses is of prime importance to the litigant, the jury, and the court in the administration of impartial justice. Ofttimes it is the only means afforded a litigant for protecting his interest against a witness who is careless, reckless, or extravagant in his statements.
Other issues presented need not arise upon a retrial.
The judgment is reversed and the cause is remanded. Westhues and Barrett, CC., concur.
PER CURIAM: - The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.