Bedsaul v. Feeback

• Citation: 106 S.W.2d 431,341 Mo. 50
• Parties: Henry V. Bedsaul, Appellant, v. Emory Feeback and William Feeback
• Decision Date: 21 June 1937
• Court: United States State Supreme Court of Missouri

106 S.W.2d 431

341 Mo. 50

Henry V. Bedsaul, Appellant, v. Emory Feeback and William Feeback

Supreme Court of Missouri

June 21, 1937

Appeal from Cass Circuit Court; Hon. Leslie A. Bruce Judge;

Reversed and remanded.

Robert F. McKinstry, Will H. Hargus and Martin J O'Donnell for appellant.

(1) To park a motor vehicle on a state highway in violation of the law making it a criminal offense so to do is a tort of the nature of a trespass vi et armis and contributory negligence is no defense. Secs. 7778-7786, R. S. 1929; Morgan v. Cox, 22 Mo. 377. (2) Since the very injury happened which the statute was designed to prevent that injury must be considered as directly caused by the nonobservance of the law and not by contributory negligence. Boesel v. Wells-Fargo & Co., 260 Mo. 483; Washburn v. Empire Ptg. Co., 249 S.W. 709; Ridenhour v. Oklahoma Cont. Co., 45 S.W.2d 108. (3) The court erred in giving Instruction B at the request of defendants for the following reasons: (a) Said Instruction B told the jury that regardless of whether defendants had violated the statutes, yet if plaintiff failed to operate his truck on the assumption that a darkened truck was on the highway and regulate the movement of his own truck on that assumption, then that he could not recover and this notwithstanding the fact that the plaintiff was entitled to assume that no person would violate the law by parking an unlighted truck on the traveled part of the state highway more than one-half hour before sunrise. (b) The said instruction proceeds upon the theory that, notwithstanding the violation of the statute, Section 7778, was the direct and proximate cause of plaintiff's injuries, yet that unless the plaintiff proceeded upon the assumption that the defendants had violated the said statute and regulated his movements accordingly he could not recover. Powell v. Scofield, 223 Mo.App. 1041; Sheffer v. Schmidt, 324 Mo. 1053. (4) Instruction C given at the request of the defendants in telling the jury that even if defendants were negligent yet that if plaintiff "continued to drive his truck forward when he could not see" as a result of lights on another approaching car then he could not recover was erroneous in that it compelled a stop on a state highway whenever the lights of an approaching car affected the vision of a driver. Powell v. Scofield, 223 Mo.App. 1041; Sheffer v. Schmidt, 324 Mo. 1053.

Cowgill & Popham and John F. Cook for respondents.

(1) The violation of the statute prohibiting the parking of motor vehicles on the State Highway during the nighttime without a taillight does not within itself constitute a trespass vi et armis. It was a question for the jury whether the alleged violation of the statute in regard to parking of motor vehicles on the highway without a tail lamp burning was a proximate cause of plaintiff's injury. There can be several proximate causes of an injury. Ridenhour v. Oklahoma Cont. Co., 45 S.W.2d 112; Krelitz v. Calcaterra, 33 S.W.2d 911; Evans v. Klusmeyer, 256 S.W. 1038. Appellant's alleged cause of action at common law would have been "trespass on the case" rather than "trespass vi et armis." 5 C. J., p. 628, sec. 16; Anderson v. Arnold, 79 Ky. 372. Contributory negligence is a good defense even though an action is based upon the violation of a statute. Spiva v. Osage Coal & Mining Co., 88 Mo. 68; Huss v. Heydt Bakery, 108 S.W. 63; Williams v. Ransom, 136 S.W. 349; Millsap v. Beggs, 97 S.W. 956; Dessie v. Ry. Co., 129 S.W. 1012; Saling v. Am. Chicle Co., 166 S.W. 823; McKim v. Met. St. Ry. Co., 209 S.W. 22; Higgins v. Medart Patent Pulley Co., 240 S.W. 252; Hammack v. Hill, 251 S.W. 432. (2) Appellant is estopped to claim on this appeal that defendants' instructions submitting contributory negligence as a defense were erroneous because of appellant's claims that his action was based on the violation of the statute and amounted to a trespass vi et armis. If such had been the case appellant waived the benefit thereof and abandoned such benefit and claims by his Instruction 1 wherein he treated and submitted his case solely on the theory of simple common-law negligence and therein did not tell the jury that stopping said truck on the highway without a taillight burning was negligence, but appellant himself required the jury to find that such act constituted negligence. Appellant also required the the jury to find that the plaintiff was not guilty of contributory negligence in this instruction. Coleman v. Rightmyer, 285 S.W. 403; Mt. Vernon Car Co. v. Mill Co., 227 S.W. 74; Shoemaker v. Adair County Coal Co., 255 S.W. 352; Carlson v. Wells, 276 S.W. 30; Ramsey v. Railroad Co., 253 S.W. 1079. (3) The court did not err in giving instructions A, B, C, D, I, and E. The submissions contained in such instructions were proper jury questions under the law and under plaintiff's authorities and plaintiff's trial theory. Furthermore, whether such submissions were erroneous under the facts and circumstances in the case at bar cannot be determined by the bill of exceptions in this case. Krelitz v. Calcaterra, 33 S.W.2d 911; Ridenhour v. Oklahoma Cont. Co., 45 S.W.2d 108; Evans v. Klusmeyer, 256 S.W. 1036; Mitchell v. Dyer, 57 S.W.2d 1083; Powell v. Scofield, 15 S.W.2d 880; Sheffer v. Schmidt, 26 S.W.2d 592; Ross v. Hoffman, 269 S.W. 679; Roper v. Greenspon, 198 S.W. 1107; Roper v. Greenspon, 210 S.W. 922.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Appellant, plaintiff below, sued respondents to recover $ 20,000 in damages for personal injuries alleged to have been sustained in a collision between a truck driven by plaintiff and a truck belonging to the respondents. A trial resulted in a verdict and judgment for respondents defendants below, and plaintiff appealed.

Respondents filed a motion to dismiss this appeal on the ground that appellant failed to file, in the circuit court, a bill of exceptions containing a full transcript of the evidence. The bill of exceptions filed does not contain a transcript of the evidence but instead contains the following recitation:

"The Plaintiff, in person, testified as a witness and called other witnesses and offered evidence tending to prove each and every allegation set forth in the plaintiff's petition and at the conclusion of said evidence the defendant asked an instruction in the nature of a demurrer to said evidence, which was by the court refused.

" At the close of all of plaintiff's evidence defendants demur specially and generally to the evidence and request the court to direct the jury to return a verdict for defendants.

"(1) Because under the pleadings and the evidence and as to each ground of recovery alleged, plaintiff cannot recover, and

"(2) Because plaintiff is guilty of contributory negligence as a matter of law barring recovery.

"Thereafter, the defendants introduced evidence tending to support each and every allegation set forth in the answer and at the conclusion of the said evidence for the defendant the plaintiff offered evidence in reply tending to support the allegations of the reply.

"And thereupon the defendant requested an instruction in the nature of a demurrer to the evidence, which was by the court refused.

"Now again at the close of all the evidence defendants again offer the following general and special demurrer to the evidence and request the court to direct the jury to return a verdict for defendants

"(1) Because under the pleadings and the evidence and as to each ground of recovery alleged, plaintiff cannot recover, and

"(2) Because plaintiff is guilty of contributory negligence as a matter of law barring recovery.

"And thereupon the plaintiff requested the following instructions, which were by the court given to the jury:"

With the exception of omitting the evidence as above indicated the bill of exceptions is complete. At the end thereof we find the following:

"We Hereby Consent that the foregoing is a true and correct bill of exceptions taken and saved on behalf of the plaintiff, Henry V. Bedsaul, herein, and agree that the same may be signed, filed and made a part of the record in this cause.

"Robert F. McKinstry,

"Silvers & Hargus,

"Will H. Hargus,

"Attorneys for Plaintiff.

"Roy Schubert,

"Crouch & Crouch,

"Cowgill & Popham,

"Attorneys for Defendants."

Respondents in support of their contention cite a number of cases, among them the case of Klene v. St. Louis-San. F. Ry. Co., 321 Mo. 162, 9 S.W.2d 950. We examined the files in the above case and found that the respondent, the defendant in the case, did not agree to the bill of exceptions that was filed by the plaintiff, the losing party. Respondent, therefore, did not agree to the recitation in the bill of exceptions that there was evidence to sustain the plaintiff's cause of action. The defendant insisted that plaintiff had not made a submissible case. This court ruled, and correctly so, that the correctness of instructions given and refused could not be reviewed, because if plaintiff had not introduced evidence sufficient to support a verdict the correctness of the instructions would be immaterial, and since the appellant did not embody a transcript of the evidence in the bill of exceptions filed in the circuit court respondent was in no position to furnish this court with an additional abstract of the record.

In the case before us the respondents, by signing and agreeing to the bill of exceptions as filed, agreed that there was evidence introduced at the trial to support the allegations of plaintiff's petition. No mention was made in the bill of exceptions that the evidence disclosed plaintiff had been guilty of contributory negligence as a matter of law. If respondents were not satisfied with the bill of exceptions they should not have...