Levels v. St. Louis & Hannibal Railway Co.

196 Mo. 606 | Mo. | 1906

VALLIANT, J.

—Plaintiffs sue under section 2864, Revised Statutes 1899, to recover damages for the death of their daughter, Hattie Levels, who, they say, was a minor at the time of her death and lost her life while a passenger in defendant’s car through negligent defect in the equipment.

The petition states that plaintiff Powhatan Levels, the father pf the deceased Hattie, had been adjudged insane by the probate court and that the public administrator has taken charge of his estate and represents him in this suit. The answer was a general denial and a plea of contributory negligence. During the trial, after the plaintiffs had introduced the most of their evidence, the defendant asked leave to file an amendment to its answer denying that Powhatan was insane or that he had been adjudged insane or that the Public Administrator had been lawfully authorized to take charge of his estate. On objection of tbe plaintiffs, tbe conrt refused to allow tbe amendment, for tbe reason, as stated by tbe court, that it would not be in furtherance of justice. That ruling is assigned as error.

I. Tbe ruling óf tbe court in that respect was right. If tbe defendant intended to deny tbe capacity in which the plaintiff sued, it should have made a specific denial of tbe allegations of tbe petition-in that respect in the nature of a plea in abatement. Tbe general denial is addressed to tbe merits of tbe case and does not put in issue those facts which are raised only by a plea in abatement. Plaintiffs were not put to tbe proof of those facts to maintain their case as tbe pleadings stood when tbe trial began and tbe trial court wisely ruled that it would not further the ends of justice under tbe circumstances of tbe case to allow tbe issue to be raised after.tbe trial bad progressed.

II, Tbe main pivot on which the case turned was the age of plaintiffs’ deceased daughter; if she were a minor, tbe plaintiffs were entitled to recover, if she was eighteen years of age, tbe plaintiffs could not recover. Tbe plaintiffs’ testimony tended to prove that her age was seventeen years and ten days; defendant’s, that it was nineteen years and ten days. Tbe jury found for tbe plaintiffs and a judgment for $5,000 in their favor was rendered, from which defendant appealed.

Appellant in its brief concedes that tbe deceased was a passenger and lost her life through tbe negligence of tbe carrier and that defendant is liable if, in a fair trial, it is found that tbe deceased was under eighteen years of age at tbe time of her death.

Tbe general character of tbe plaintiffs’ testimony was that of witnesses who remembered tbe occasion of tbe birth of Hattie and undertook to fix tbe date in reference to some collateral event that was of sufficient importance to fix it on tbe mind of tbe witness; for instance, one witness who was present at the birth remembered that it was abont one month after the birth of her own child whose age was recorded and well remembered; another remembered that she stopped at the plaintiffs’ home on that occasion when she was on her way to see her grandmother who was ill and who died shortly afterwards and the date of whose death was proven; other witnesses remembered the occasion in connection with the time a man was hanged for mnrder, the date of the execution being shown by the court records. The plaintiffs’ evidence also tended to show that the Levels kept a family Bible in which the ages of their children were recorded and that Hattie’s age was there recorded; this Bible was shown to be in the custody of the plaintiffs, but was not introduced in •evidence. One of the plaintiffs, the mother of Hattie, testified that she and her husband were married in September,, 1882; that they had three children, Hattie the eldest, born in July, 1885, Blanche the second, born June, 1887, and "William in 1889. The testimony on the part of the defendant was derived chiefly from the records •of the school enumerations, the United States census enumeration and Hattie’s school record. These enumerations showed that Hattie was born in July, 1883, Blanche, June, 1885, and William in 1887.

Defendant also introduced testimony of the same character as that of plaintiffs; for example, one witness for defendant testified that in the summer of 1884 she called at the house of plaintiff on a matter of business early in the morning and found the family seated at the breakfast table, their child sitting in a baby’s high chair to the table; some conversation ensued between the mother and the visitor about the child, and in the same conversation mention was made of the death of the witness’s mother which had recently occurred, the date of which was August 29, 1884. The defendant’s testimony tended to show that Hattie was a teacher in the public schools; she received her first certificate as a school teacher in August, 1900, just two years before her death; if she was born in August, 1885, as the plaintiffs claim, she was only fifteen years old when* she became a teacher in the public school. The school commissioner who issued the certificate testified that he knew nothing of her age when he issued it except as he judged by her appearance, and so judging it he would say she was at that date, August, 1900, eighteen years old. In November, 1901, she applied for an advanced certificate, and was again examined by the then school commissioner, who testified that she then told him that she was nineteen years old, and he made a memorandum of the fact at the time, which memorandum was on the stub in the book from which the certificate was taken. There was also in evidence an application for a life insurance policy signed by Hattie, for insurance on her own life in favor of her mother, dated July 3, 1899', in which she stated that she was born July 24, 1883; and there was proof of her death made to collect the insurance, which was signed by the plaintiff Hattie’s mother in which she stated that Hattie’s birth was July 24,1883. The insurance agent who took that proof testified that he wrote the date of the birth at the dictation of Mrs. Levels who, before answering his questions as to the date, examined some book which to the witness looked-like a Testament and then gave the date and he wrote it as she gave it, and she collected the money. That proof of death was dated August 6, 1902, three davs after the death. This suit was filed January 24, 1903.

Our purpose in thus stating the general character of this evidence is not to weigh it to see if the jury’s estimate of it was correct, because an appellate court has no right to do that; the same authority that gives the court the right to say what the law is, gives the jury the right to say what the facts are, and the court has no more right to set at naught the jury’s finding of the facts than the jury has to disregard the court’s declaration of the law. To relieve against a flagrant wrong that might be committed, the law has wisely given the trial court the power and imposed on it the duty of setting aside a verdict if it is against the great preponderance of the evidence and it is often a cause for regret that trial courts are not as apt to exercise that power or perform that duty as they should be, but even then when the case comes to an appellate court, whatever opinion may be had of the fairness of the verdict, if there is substantial evidence to sustain it, the appellate court violates the law if it undertakes to substitute its judgment for that of the jury or to perform a duty that the law has imposed on the trial judge alone, and which it may be feared he has neglected to perform. It is only when the record clearly shows that the verdict was the result, not of judgment, but of prejudice or passion, that the law gives the appellate court the right to set it aside when there is no error in law. An appellate court in its anxiety to do justice is sometimes strongly tempted to correct what to it seems-to be a verdict against the weight of the evidence, and thus invade the province of the trial judge, but even that motive will not justify the invasion or make it any less unlawful. And, in the long run and general average, justice will be found to be best promoted by leaving the responsibility for injustice in a particular case just where the law has placed it.

But it not infrequently happens that the duty of examining the evidence when it is conflicting devolves on the appellate court for the purpose of deciding whether an error occurring in the trial was of a character sufficiently serious to require a reversal of the judgment. Section 865, Eevised Statutes 1899, forbids an appellate court to reverse a judgment unless it believes that error was committed in the trial court against appellant “and materially affecting the merits ■of the action.” Sometimes, therefore, a judgment is affirmed although illegal testimony has been received ■or other error committed, if, upon the whole record, it is absolutely clear that the judgment is for the right party and that the error could not have affected the result of the trial. But when the case turns on a question of fact and the evidence is so conflicting that a verdict for either side can be said to have substantial evidence to support it, then the introduction of illegal evidence is a matter of more consequence than it would be in a case where the evidence in support of the verdict was substantially all one way.

Plaintiffs cannot claim for the evidence in support ■of this verdict that it amounts to anything more than what could be called substantial. The plaintiffs’ witnesses when testifying were drawing on their memories for facts that occurred eighteen or twenty years before; they seem to have had a vivid recollection of the birth ■of a child to Mrs. Levels and they fixed the date by collateral events concerning which they were not likely to be mistaken. But the fact being that Mrs. Levels had a second daughter, Blanche, born in June, 1885, was a fact to be considered. It was not impossible for these witnesses trying to recall what occurred at that distant day, to have mistaken the occasion of the birth ■of the second for that of the first child and to have associated it with the collateral event mentioned; if, therefore, the verdict had been for the defendant it would not necessarily have been a reflection on the veracity of the plaintiffs’ witness.

Giving to the plaintiffs the full benefit of what they •claim for their evidence, that is, that it was substantial, it cannot be said to be overwhelming in its probative force; therefore, defendant has the right to ask this court to scrutinize the evidence admitted over its objection.

1. Over the objection of defendant, plaintiffs read in evidence the depositions of Strother, circuit clerk, and Mavhall, editor of a newspaper, to show the dates of the indictment, conviction, appeal, reversal, retrial, second conviction, appeal, affirmance and final, execution of Collins, the date of whose execution was the collateral fact by which some of the witnesses fixed the date of Hattie’s birth. Those were all matters of record which could have been shown by the record, if true, and if the objection to the depositions had been put on the ground that they were at best only secondary evidence, the court should have sustained the objection, but it was not put on that ground, but on the ground that the depositions related to matters foreign to the issues. In fixing a date a witness has the right to refer to an event co-temporaneous or nearly so with the date in question and the date of such event may be then proven. The court did not err in overruling the objection on the ground on which it was made.

2. On cross-examination of Mrs. Farrell, who was one of plaintiffs ’ principal witnesses, she was asked if Hattie was not a bright girl and knew her own age, to which the witness answered yes; she was then asked: “And she was intelligent enough not to give in her age falsely or erroneously? A. Well she may not have regarded that just as we do. Yes, sir, she may have yarn-ed about it. Yes, sir, if she gave her age incorrectly I would think she simply yarned and had a purpose in telling an untruth about it. Mary Levels.I think is intelligent enough and ought to have known Hattie’s age. If she gave her age incorrectly I would think she had a purpose. I think I knew the purpose.”

On re-direct examination witness was asked by plaintiffs’ attorney: “What was the reason, state what the purpose was in making her age more than it was?” Defendant objected to the question on the ground that it was the mere opinion of the witness based on hearsay evidence, the objection was overruled and exception taken; in overruling the objection the court made this comment: “It is a very ugly insinuation against a party who has testified unless it is explained; she may explain.” Defendant excepted also to the comment. The witness then answered: “Well, as you know her mother had to work very hard to support her family for the last few years, say from, well 1894 or .1895, I think; she was supporting the family while her husband was supposed to be paying the taxes on the property and keeping down the interest on the mortgage that was on their home, and they were very anxious to have this girl teach school, and in order to be able to get a school she puts herself up two years, or at least that was her intention, and I know it. Q'. From whom did you get that information? A. From Hattie herself.”

The only ground on which plaintiffs’ attorney claimed that this testimony was competent was that the defendant had called it out in the cross-examination. But that is a mistake; the defendant only asked if Hattie was a bright girl and had sense enough to know her own age and know when she was telling an untruth about it; the witness volunteered to say that Hattie and her mother had a motive for telling an untruth and that she knew the motive. That was not responsive to any question asked by the defendant.

The testimony was incompetent and hurtful to the defendant; it was a direct appeal to the sympathy of the jury, and offered what was evidently intended to he a praiseworthy excuse for telling a falsehood; it was hut the witness’s opinion founded on hearsay. The court’s comment was unjustifiable, the question asked by defendant on cross-examination did not deserve the rebuke of saying that it contained “a very ugly insinuation against a party who had testified.” Defendant had a right to show that the false statement as to age could not he attributed to lack of intelligence on the part of Hattie or her mother, and that is as far as defendant’s questions went. It was error to admit that testimony.

3. Some of the school enumeration lists offered were admitted in evidence and some excluded on plaintiffs ’ objections. Appellant assigns the exclusion of these as error.

All of the school enumeration lists that were shown to have been made in conformity to the statute were admitted, but some were not just what the law required; for example, the enumerator testified that in 1900 he called in person on Mrs. Levels and asked her the ages of her children and recorded them as she gave them; that list was admitted in evidence; but in 1901 and 1902 the enumerator made up the lists as to the plaintiffs’ children without calling on the parents, simply putting them forward in ages one and two years. Other lists had other irregularities. Neither of those excluded lists was competent evidence in itself of what it purported to show, but when the defendant undertook to show by the school enumeration lists the age of the deceased the duty devolved on it to produce all of the lists attainable; if it had selected one or two lists that were favorable to its defense and failed to produce the others, the plaintiffs would have had a right in their argument to the jury to call attention to that omission and to ask why the defendant selected such lists as suited its purpose and withheld the rest, was it because the absent lists showed that the errors in those produced had been corrected? That would have been a legitimate argument and a legitimate inference to the prejudice of defendant could have been drawn. Therefore the duty devolved on the defendant to offer those lists in evidence to show that they did not contradict the lists that were regular. But the court’s ruling on the question was correct, because when the defendant offered them it did its whole duty in regard to them and the plaintiffs by objecting to them were disarmed of that argument.

4. Section 9800, Revised Statutes 1899, is as follows: “It shall be the duty of every teacher employed in any of the public schools of the state to keep a daily register, in which names, ages and dates of entrance of the pupils shall he entered, and the studies pursued by the same; the date of each visitation by the directors or other school officers; which register shall be open to the inspection of the public at all times.”

A register as required by that statute was kept by the teacher of the school which Hattie attended for the term begining September 4, 1899, and that register shows that her first day’s attendance was November 6,. 1899, and her age then seventeen years. Defendant offered that register in evidence and it was excluded on objection of plaintiffs. The-court erred in excluding the evidence; the register was a record which the law required to he kept and the evidence showed that it was kept in strict conformity to the requirement of the law. It was not record evidence in the strict sense of conclusiveness, hut like the-school enumeration lists and the United States census lists, it was competent evidence to be weighed in the balance with other evidence. [State v. Austin, 113 Mo. 538; Van Riper v. Morton, 61 Mo. App. 440; Reynolds v. Ins. Co., 88 Mo. App. 679; Ohmeyer v. Woodmen, 91 Mo. App. 189, l. c. 201; 1 Greenleaf on Ev. (16 Ed.), sec. 483; 9 Am. and Eng. Ency. Law (2 Ed.), 883.]

5. When the cause was being argued before the jury the attorney for defendant alluded to the fact that the plaintiffs had failed to offer in evidence the Bible in which they claimed that the ages of their children were recorded, whereupon the attorney for the plaintiffs took a book out of a satchel he had and holding it up in the presence of the jury said: ‘ ‘ Here is the Bible,, you can introduce it now to the jury,” Defendant objected to the remark and requested the court to rebuke the attorney for it. The abstract says that the court did rebuke the counsel, hut it also says that the defendant excepted. What the court did say is not stated. In the brief for respondents it is said that the court rebuked the counsel; in the brief for appellant it is said, that the court did not sufficiently rebuke him. Just how far the effect of an improper remark by counsel is cured by a rebuke from court depends-on the circumstances of the ease. In order to appreciate the effect of this remark we should notice the evidence in relation to this Bible. The testimony on the part of the plaintiffs tended to show that the ages of their children were recorded in the family Bible and that that Bible was in the custody of plaintiffs. The insurance agent, a witness for defendant, testified that when the application for the insurance on the life of Hattie was made he went to the plaintiffs’ house and wrote the answers to the questions in the application from what Mrs. Levels told him; when he asked Hattie’s age, Mrs. Levels consulted a Bible, and then stated that Hattie was born July 24, 1883, and the witness so wrote it.

It also was in evidence that in the taking of the deposition of Mrs. Farrell (who was one of the witnesses for plaintiff who testified that she was present when Hattie was born and when her age was recorded in the Bible) the attorney for the plaintiffs took a book out of his safe and showed it to her arid asked her if she could identify it as the Bible .in which she had seen the age recorded and that the attorney for defendant who was present asked to see the book; the attorney for plaintiffs refused the request and returned it to his safe.

Hnder that state of the evidence the attorney for the defendant had the right to comment on the fact that the plaintiffs had failed to offer the supposed family record in the Bible in evidence and the action of the plaintiffs’ attorney in then showing a book and making the remark he did was unjustifiable and prejudicial to defendant. Of course the defendant’s attorney would not then venture to put the record in evidence because he had no knowledge of its contents. If he suspected that it had been altered or concocted for the occasion, he knew that he would be unable to grapple with it then. No attorney in his place would have ventured then to exhibit the book to the jury. The counsel understood the situation but the jury did not, and the jury were allowed to draw an inference unfavorable to the defendant from the fact that the book was not given in evidence and it was of such a serious character that the impression once drawn was not likely to be removed by a mild rebuke, if by any rebuke at all. For that cause alone the trial court would have been justified in granting a new trial.

For the errors above mentioned the judgment is reversed and the cause remanded to be retried according to the law as herein expressed.

All concur, except Graves, J., not sittiag.