King v. Rieth

• Citation: 108 S.W.2d 1,341 Mo. 467
• Parties: George W. King, Appellant, v. Fred M. Rieth, Edward H. Rieth and Albert J. Rieth
• Decision Date: 30 July 1937
• Court: United States State Supreme Court of Missouri

108 S.W.2d 1

341 Mo. 467

George W. King, Appellant, v. Fred M. Rieth, Edward H. Rieth and Albert J. Rieth

Supreme Court of Missouri

July 30, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Erwin G Ossing, Judge.

Reversed and remanded.

John Neu, Jr., and Earl M. Pirkey for appellant.

(1) The first clause of this instruction and the whole instruction as well denies a recovery by plaintiff if plaintiff was negligent and this negligence directly contributed to his injury. This is incorrect because it allows the jury to defeat plaintiff on any negligence real or imaginary which is not alleged and proven. An instruction for defendant on contributory negligence must be confined to negligence pleaded and proved. Bullmore v. Beeler, 33 S.W.2d 164; State ex rel. Bank v. Globe Indemnity Co., 222 Mo.App. 153, 2 S.W.2d 821; Black v. Met. St. Ry Co., 217 Mo. 685; Schide v. Gottschick, 329 Mo 72. (a) The instruction tells the jury that plaintiff cannot recover if his negligence contributed directly in any manner to the injury and it states that this negligence need not be the proximate cause of the injury. This is incorrect for the reason that contributory negligence to defeat plaintiff must be a producing and efficient cause of the casualty and without which the casualty would not have happened. Howard v. Scarritt Estate Co., 267 Mo. 402. "The rule as to the quantum of contributory negligence which is sufficient to prevent recovery is that it must be such as to enter into and form the direct, producing and efficient cause of the casualty, and absent which the casualty would not have happened." Roberson v. Loose-Wiles Biscuit Co., 285 S.W. 130. (b) There are three defendants in the case. The only one of the answers to the amended petition which pleaded contributory negligence is that of Edward H. Rieth and the two specifications of contributory negligence are alleged excessive speed and alleged failure to keep his automobile as close to the righthand side of Grand Boulevard as practicable. That was pleaded by this one defendant only. Instruction 12 forbids a recovery by plaintiff against any defendant if plaintiff was guilty of contributory negligence. Whereas, the law is that where there are several defendants a defendant who does not plead contributory negligence is not entitled to an instruction on contributory negligence because contributory negligence is pleaded by another defendant. Kilcoyne v. Metz, 258 S.W. 4. (2) Instructions 6, 8, 9, 10 and 11 close with the words "then your verdict must be for defendant." A jury is a component part of a court. They cannot be told that they must do so and so and an instruction which tells the jury that your verdict "must be" is erroneous. Klaber v. C. R. I. & P. Ry. Co., 33 S.W.2d 154; Privitt v. Jewett, 225 S.W. 129.

Strubinger & Tudor for Fred M. Rieth; William H. Tombrink for Edward H. Rieth and Albert J. Rieth.

(1) Error, if any, in Instruction 12 is cured by Instruction 1 offered by appellant. The charge to the jury must be considered as a whole, and when so read Instruction 12 supplements and explains Instruction 1 and would not confuse nor mislead the jury. Consolidated School Dist. v. West Mo. Power Co., 46 S.W.2d 179; Hicks v. Vieths, 46 S.W.2d 607; Schweig v. Wells, 26 S.W.2d 851; Brown v. Davis, 32 S.W.2d 145; Kines v. Jamison, 277 S.W. 969; Sitts v. Daniel, 284 S.W. 857; Gibler v. Terminal Railroad Assn., 203 Mo. 208, 101 S.W. 37; Kaechelen v. Barringer, 19 S.W.2d 1033; Wright v. Quattrochi, 49 S.W.2d 3. (a) Instruction 12 required the jury to find that plaintiff's negligence, if any, "contributes directly" to the injury. The cases cited by appellant are not in point. (b) Appellant by his Instruction 1 having submitted the question of contributory negligence as relating to the charge against all defendants, each defendant was entitled to the benefit of an instruction thereon. Parker v. St. L.-S. F. Ry., 41 S.W.2d 386; Kincaid v. Birt, 29 S.W.2d 97; White v. United Rys. Co., 157 S.W. 593, 250 Mo. 476; Strother v. Kansas City Milling Co., 169 S.W. 43, 261 Mo. 1; Aronovitz v. Arky, 219 S.W. 620. (2) The closing words of Instructions 6, 8, 9, 10 and 11, "then your verdict must be for the defendant," are proper. Pabst v. Armbruster, 91 S.W.2d 658. (a) Instructions 6, 7 and 8 do not improperly assume that Glenn Hutchins was driving the truck at the time of the accident. The alleged admissions of defendant Fred M. Rieth narrated by appellant were improperly admitted over defendants' objections. 22 C. J. 235, sec. 216. (b) Instructions 6, 7 and 8 were proper as to Glenn Hutchins driving the truck, the testimony to the contrary being vague and unsupported, and it is not error to assume in instructions matters which the parties by their manner of examining the witnesses and by their own evidence assume to exist, and the law does not require a useless thing to be done. Lewis v. Terminal Railroad Assn., 61 S.W.2d 234. It is not error for instructions to assume facts that are unquestionably established by the evidence of both parties. Keys v. C. B. & Q. Railroad Co., 31 S.W.2d 50, 326 Mo. 236; Hill v. St. L. Pub. Serv. Co., 64 S.W.2d 633; Davidson v. Transit Co., 211 Mo. 320, 109 S.W. 583.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action for damages for personal injuries caused by a collision between plaintiff's automobile and a truck, alleged to have been owned and used by defendants operating as a partnership. Plaintiff sued for $ 25,250. The jury found for defendants. Plaintiff has appealed from the judgment entered on their verdict.

The case was submitted on what seems to have been a general charge of primary negligence (negligently caused and permitted the truck to strike plaintiff's car), although the petition alleged excessive speed, failure to keep the truck as close to the right-hand curb as practicable, failure to swerve, and failure to warn. Failure to warn was withdrawn by an instruction requested by defendants. It is not contended that plaintiff failed to make a jury case on any other charge of negligence. Plaintiff's evidence was that he was driving south on Grand Boulevard in St. Louis about eleven p. m. on April 12, 1933; that he kept his car to the west of the center of the street; that he saw the truck coming north, swinging from one side of the street to the other; that he stopped his car; and that the truck crossed the center of the street from the east side striking his car while it was stopped on the west side. There was also evidence that the truck was going at least forty miles per hour and had passed another car, just prior to the collision, which was running about thirty-five miles per hour; that there were two men in the truck; and that the truck had on it the name "Rieth Bros." or "Rieth Bros. Trucking Service."

Plaintiff assigns error in instructions given at defendants' request. Defendants, however, contend that their demurrers to the evidence at the close of the case should have been sustained (separate demurrers were offered for each of the three defendants) because there was no evidence that the driver of the truck was acting within the scope of his employment at the time of the accident or was even the employee of any defendant except Edward H. Rieth. Of course error in instructions would be immaterial if plaintiff was not entitled to go to the jury. [Bello v. Stuever (Mo.), 44 S.W.2d 619, and cases cited.] Evidence on these issues showed that the truck did not stop after the collision, but that the license number was given to the police, and that about two hours later that night they arrested Hutchins, a truck driver who brought the truck involved in the collision to his home. The police first came to the Rieth home to find the truck. Defendant Fred M. Rieth, who was the father of the other two defendants, went with one of his sons (defendants say Albert H. Rieth) to the police station the next morning to get Hutchins released. Edward was twenty-four and Albert was twenty-two; they both lived at their father's home. Edward said he and his brother had no property and that they relied on their father "to take care of any trouble of that kind." Hutchins, when arrested, told the police that he had not had a collision with the truck but could not explain the damage to its left side. The next morning Hutchins "was very reticent about giving any information," but when Mr. Rieth was called to the police station at his request and "after Mr. Rieth talked around several times he admitted driving the truck." Hutchins testified that he was the driver and said that he left the scene of the accident, and denied the collision, in order to save his job.

Plaintiff testified that Fred M. Rieth came to his home the morning after the collision, accompanied by one of his sons (he could not say which one), Hutchins, and police officers; that Fred M. Rieth there said that "he and his two sons owned the Rieth Trucking Service, and they came up to ask me not to prosecute;" that "he said these two men were driving, his son and another fellow were on the truck they had insurance and it would be up to the insurance company to pay me for my damage;" that "he said they had been on a long trip and was tired, fell asleep at the wheel;" and that "he said his son was driving it . . . and asked me not to prosecute." Plaintiff offered the deposition of defendant Albert Rieth in which he stated that he and his brother Edward were partners in the trucking business; that the partnership had existed "since January, 1931;" and that Hutchins was employed by the partnership until "about three or four weeks after the accident." Edward Rieth also testified in a deposition that he was "part owner of the Rieth Brothers Trucking Service;" and that the...