164 Mo. App. 41 | Mo. Ct. App. | 1912
On March, 6,1908, Cyrus C. Armstrong commenced this suit in the circuit court of Jackson county to recover damages fo.r personal injuries, he alleged were caused by the negligence of defendant. The injury occurred October 16, 1907, and the petition alleged that it was caused by the negligence of defendant in suddenly starting a street car which had been stopped at a regular place for the reception and discharge of passengers while the plaintiff was in the act of alighting. The answer was a general denial. There was a trial of the cause in March, 1909, at which plain
At the trial counsel for defendant objected to the introduction of any evidence on the ground “that the petition does not state a cause of action, because under the common law an action for personal injury did not survive the death of the injured party and because the statute under which this is sought to be revived only revives a certain class of cases and there is no plea or allegation in this petition that shows that the case falls within that class.” The objection was overruled, defendant excepted and the court proceeded with the trial.
The principal evidence introduced by plaintiff was the testimony of Armstrong given at the former trial. Plaintiff introduced as a witness the official stenographer of the circuit court who reported that trial and he testified that he-took the testimony in shorthand and had with him a transcript of his notes. He was interrogated by counsel for defendant as follows: “Ton have no independent recollection of what Mr.
Plaintiff then attempted to have the witness testify from memory to the testimony given by Armstrong by using the transcript of his notes to refresh his memory, but this method of examination was not successful and over the objections of defendant the court finally permitted plaintiff to introduce the transcript in evidence. The ground of the objection thus was stated by counsel: “Because it is hearsay evidence and because there is no provision, either of the common law or of the statutes, authorizing the reading of such a transcript as the evidence of a witness and because it is incompetent, irrelevant and immaterial.”
The facts of the injury as stated in the transcript thus may be stated: Mr. Armstrong, a Presbyterian minister living at Stanberry, was attending a synod at Kansas City and was ón his way from a meeting of the synod to his lodgings at the time of his injury. He became a passenger on a southbound Ro'ckhill car operated by defendant intending to alight at Thirty-fourth and Main streets, a regular stopping place. He was a stranger in Kansas City and was not familiar with its streets. He sat in a rear seat next to the vestibule where the conductor stood when not engaged
The principal injury he sustained was a fracture of the ball and socket joint in the left hip. The evidence of defendant is to the effect that Armstrong came out of the car to the vestibule, proceeded down the steps and attempted to step to the pavement, all before the car had reached the stopping place and while it was running at a speed of three or four miles per hour.
The injury was very severe and plaintiff suffered pain and was lame from it to his death. He was in good health before the injury and thereafter his health seemed steadily to decline.until he died.
The specific cause of his death is not shown but a very strong, inference arises from the evidence that the injury was the cause. The opposite inference also might be drawn and the issue of the causal relation of the injury to the death appears from all the evidence as a question of fact. At the request of plaintiff the jury were instructed: “ ... that if you believe and find from the evidence that on the 16th day of October, 1907, C. O. Armstrong, deceased, and former plaintiff in this case, was a passenger on one of defendant’s cars proceeding southward on Main street
“By ‘ordinary care’ as used in the above instruction is meant such care as an ordinarily prudent person would exercise under like circumstances.”
The jury returned a verdict for plaintiff in the sum of five thousand dollars and after its motions for a new trial and in arrest of judgment were overruled, defendant appealed.
I. Under the common law an action for personal injuries did not survive the death of the injured plaintiff and both the cause and an action to enforce it abated on his death occurring before the cause had merged into a judgment. [Elliott v. Kansas City, 210 Mo. 576; Millar v. Transit Co., 216 Mo. 99; Behen v. Transit Co., 186 Mo. 430; Bates v. Sylvester, 205 Mo. 493.] Therefore the right of the administrator to be substituted as plaintiff and to prosecute to judgment the action begun by his intestate if it exists at all, exists by virtue of some statute in derogation of the common law. It cannot be founded on section 105, Revised Statutes 1909, since the section following expressly excludes from the operation of that statute ac
“Causes of action upon which suit has been or may hereafter be brought by the injured party for personal injuries, other than those resulting in death, whether such injuries be to the health or to the person of the injured party, shall not abate by reason of his death, nor by reason of the death of the person against whom such cause of action shall have accrued; but in case of the death of either or both such parties, such cause of action shall survive to the personal representative of such injured party, and against the person, receiver or corporation liable for such injuries and his legal representatives, and the liability and the measure of damages shall be the same as if such death or deaths had not occurred.”
This section does not apply to instances where the death of the injured person resulted from his injury nor to cases where the death was not caused by the injury but occurred before an action was commenced to recover damages on account thereof. In express language it applies only to actions pending at the time of the death of the plaintiff to recover damages for personal injuries which were not the cause of the death. In such cases the death of the plaintiff does not abate the action nor its cause but both survive do the personal representative of the deceased and such representative is entitled to be substituted in the action as plaintiff.
Of course the administrator has no right to be made plaintiff and to continue the action in his name if the death of his intestate resulted from the injury that created the cause of action. Being in derogation of the common law the statute must be strictly con
Reference to two cases on this point decided in this state will suffice. In Barker v. Railroad, 91 Mo. 86, an action on what is now section 5425, Revised Statutes 1909, was before the Supreme Court. We quote from the opinion: “It may.be observed that damages for a tort to the person, resulting in death, were not recoverable at common law, nor could husband or wife, parent or child, recover any pecuniary compensation therefor against the wrongdoer. Our statute, on this subject, both gives the right of action and provides the remedy, for the death, where none existed at common law, and where an action is brought, under the statute, it can only be maintained subject to the limitation and conditions imposed thereby. In. conferring the right of action, and in providing, such remedy, in designating when, and by whom, suits may be brought, it was, as a matter of course, competent for the Legislature to provide and impose such conditions as it might deem proper, and the conditions thus imposed modify and qualify the right of recovery, or form, rather, we think, a part of the right itself, and upon which its exercise depends.”
And further it is said: “In statutory actions of this sort, the party suing must bring himself strictly within the statutory requirements, necessary to confer the, right, and this must appear in his petition; otherwise, it shows no cause of action.”
In Dulaney v. Railway, 21 Mo. App. 1. c. 599, this court, speaking through Ellison, J., said: “The right of action given by sections 2121 and 2122, Revised Stat
Those decisions do not deal with actions pending at the death of the injured plaintiff and, consequently, do not touch the question that might arise in such cases of whether or not the administrator on being made plaintiff must file an amended petition alleging the constitutive elements of his right to prosecute the action but they are declarative of the rule that the burden is on him to establish by evidence the existence of such constitutive facts since he must, at all stages of the action, maintain his right to prosecute it to judgment. In the present case, the administrator relieved us of the duty of deciding the question we have just mentioned by voluntarily filing an amended petition. By so doing he abandoned the original petition and assumed the burden of pleading not only the elemental facts of the cause of action but also the facts on which depended his right to prosecute the action. In omitting to allege that the death of his intestate did not result from the injury he failed to allege a fact indispensable to his right to continue the suit. The defect was not cured by answer and could be made the subject of an objection to the introduction of evidence.
And further we find that the instruction of plaintiff which assumed to cover the whole case and to direct a verdict was erroneous in failing to submit the issue of whether or not the death of Armstrong was the result of his injury.
In Byrd v. Hartman, 70 Mo. App. 57, a ease where the witness at the former trial was alive at the trial in question, we said: “We know of no authority that would authorize the reading in evidence by the official stenographer of a court his notes of the testimony of a.party taken at a former trial of a case; and especially so where the party is alive and present in court. If the plaintiff made declarations or admissions in his testimony at the former trial of the kind shown by the stenographer, these, on laying the proper foundation therefor, could be proved by the testimony of the stenographer or that of any other person who heard them. ’ ’
To the same effect were the later decisions of this court in Dempsey v. Lawson, 76 Mo. App. 522, and Sevier v. Allen, 80 Mo. App. 187. These cases may be distinguished from the case in hand on the ground, if on no other, that in each of them the witness was alive at the time of the last trial and his testimony was procurable, while here, the witness was dead at the time of the last trial and the only accurate evidence of his testimony obtainable was in the notes of the court stenographer.
In Estes v. Railway, 111 Mo. App. 1, this court in an opinion by Judge Broadd.us, held that the stenographer’s notes of the testimony of witnesses taken at
“It seems to us that the stenographer’s notes were the best evidence of what the three witnesses testified to at the trial of the other cause. Formerly there was no other mode of contradicting a witness in that respect. But since the adoption of the statute providing for shorthand notes to be made of the evidence during the trial of a case, the former method becomes secondary in its character, because less reliable. It was, therefore, error to admit the secondary evidence when the best evidence was procurable.”
The rule that has the support of the great weight of authority is this: Where the party against whom is offered evidence of the testimony given by a witness at a former trial had the opportunity of confrontation and cross-examination, the evidence is competent, first, in instances where the witness is dead; second, where he is insane or mentally incapacitated;
We find a most exhaustive discussion of this subject in Robertson v. State, 142 S. W. (Tex.) 533, and refer to that case and especially to the authorities reviewed in the opinion for a more comprehensive expression of our own views. Our conclusion is that the transcript was properly admitted.
III. We do not agree with the contention of defendant that “the plaintiff’s evidence is so at war with the conceded physical facts as to lack all probative force.” It is the idea of counsel that as Armstrong was not holding to a handhold while stepping from the car his fall, as he described it, could not have been produced by a forward lurch of the car. The principal case relied on to support this contention is one decided by this court, viz., Scroggins v. Railway, 138 Mo. App. 215.
The difference between the physical facts of the two cases is apparent. We do not decide such cases on the physical facts except where it clearly appears that the plaintiff’s version of the injury could not be true. We shall not weigh the evidence nor balance probabilities or possibilities. Wherever the inference
We find no other error in the record than that noted in the first paragraph of the opinion. The judgment is reversed and the cause remanded.