Barr v. Nafziger Baking Co.

• Decision Date: 28 July 1931
• Citation: 41 S.W.2d 559,328 Mo. 423
• Parties: Frances Barr v. Nafziger Baking Company, Appellant. Frances Barr v. Reece H. Horton, Appellant
• Court: Missouri Supreme Court

41 S.W.2d 559

328 Mo. 423

Frances Barr v. Nafziger Baking Company, Appellant.

Frances Barr v. Reece H. Horton, Appellant

Supreme Court of Missouri

July 28, 1931

Motion for Rehearing Overruled June 24, 1931.

Motion to Transfer to Banc Overruled July 28, 1931.

Appeals from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge.

Reversed (but verdict as to liability of appellant Nafziger Baking Company to stand in force) and remanded (for new trial on question of liability of appellant Horton, and on amount of damages as to both).

Holland Lashly & Donnell for appellant Nafziger Baking Company.

(1) The court erred in refusing to give Instruction F-1 asked by appellant Nafziger Baking Company. Respondent alleged that she was injured by reason of alleged negligence on the part of appellant Baking Company in failing to stop its automobile after it struck the automobile in which respondent was riding, and permitting it to continue on and push and drag the said automobile with plaintiff therein. There was no evidence to sustain said charge. Where a petition contains several averments of negligence, and there is no testimony to sustain one of them, the defendant is entitled to have the jury so informed and to have the said allegation withdrawn from the consideration of the jury. Chrismer v. Bell Tel Co., 194 Mo. 189; Roseman v. United Rys. Co., 197 Mo.App. 342; American Auto Ins. Co. v. United Rys. Co., 200 Mo.App. 317. (2) The court erred in refusing to give Instruction H offered by appellant Baking Company. By said instruction the appellant Baking Company sought to have the court instruct the jury that if respondent, while riding in an automobile driven by another person, knew or by the exercise of ordinary care would have known that said automobile was being driven at a negligent rate of speed, in time, by exercise of ordinary care, to have warned and cautioned the driver thereof to drive at a lower rate of speed, but negligently failed to do so, and that such failure on respondent's part directly contributed to cause the injuries complained of by her, then and in that case respondent is not entitled to recover. Contributory negligence in the respect above referred to was set up in appellant's answer and there was ample evidence upon which to base said instruction. (3) The court erred in giving Instruction 7 at the instance of appellant Horton. Although this instruction was given at the instance of a codefendant, yet it was in reference to the question of right of way and directly affected the appellant Baking Company. It was prejudicial to appellant because there was no testimony upon which to base it. (4) The court erred in giving Instruction 1 at the instance of respondent, and in submitting the case to the jury under said instruction. By requesting said instruction in reference to the measure of damages and requesting no instruction in reference to the assignments of alleged negligence, respondent waived all the assignments of her petition in reference to alleged negligence. Hughes v. Railroad Co., 309 Mo. 572.

Mark D. Eagleton and Allen, Moser & Marsalek for respondent.

(1) The court did not err in refusing appellant's Instruction F-1. (a) The evidence tended to show that the Chevrolet coupe, in which respondent was riding, was in fact dragged or pushed by appellant's truck after said vehicle collided. (b) The jury had the undoubted right to believe all of the testimony of any witness, or none of it, or to accept it in part, or reject it in part, as they found the same to be true or false, when considered in relation to the other testimony and the facts and circumstances in the case. Anderson v. Davis, 314 Mo. 515; Gould v. Railroad Co., 315 Mo. 723; Zlotnikoff v. Wells, 220 Mo.App. 875. (c) The record does not show that the petition was read to the jury, and therefore it does not support the contention that harmful error was committed in refusing to withdraw assignments of negligence set out therein. Error on the part of the trial court will not be presumed, on appeal, but must be definitely shown by the record. Secs. 821, 1513, R. S. 1929; Weber v. Bread & Baking Co. (Mo. App.), 15 S.W.2d 374; Palmer v. Transfer Co. (Mo.), 209 S.W. 882; Fiorella v. Jones (Mo.), 259 S.W. 785. (2) The court did not err in refusing Instruction H, requested by appellant. Said instruction was erroneous in directing, without qualification, a verdict for appellant on a finding of contributory negligence on respondent's part, when respondent alleged, and the evidence tended to prove, negligence on the part of appellant's chauffeur in violation of the humanitarian theory, as to which contributory negligence on respondent's part, if there was any such, was no defense. Spindler v. Wells (Mo.), 276 S.W. 387; Brooks v. Menaugh (Mo.), 284 S.W. 803; Yakoboski v. Wells (Mo. App.), 253 S.W. 72. (3) The court did not err in giving Instruction 7 at the instance of appellant's codefendant Horton. (a) There was ample testimony from which the jury could find that appellant's chauffeur violated the defendant Horton's right of way. Sec. 7777 (m), R. S. 1929. (b) Furthermore, appellant will not be heard to complain of an instruction given at the request of a codefendant. Leighton v. Davis (Mo.), 260 S.W. 989; Brickell v. Fleming (Mo.), 281 S.W. 951; Maher v. Coal & Coke Co. (Mo.), 20 S.W.2d 894; Beave v. Transit Co., 212 Mo. 331; Clark v. Ry. Co., 234 Mo. 396. (4) The court did not err in giving respondent's Instruction 1, on the measure of damages. (a) It is well settled that the failure of plaintiff in a civil case to submit instructions is not error. Our statute permits, but does not require, a party to offer instructions. Sec. 967, R. S. 1929; Keppler v. Wells (Mo.), 238 S.W. 425. (b) Furthermore, appellant, at the time, made no objection and saved no exception to the failure of respondent to offer instructions, nor was any complaint made on that score in the motion for a new trial. The matter therefore cannot be reviewed on appeal. Sec. 1061, R. S. 1929; Sullivan v. Railroad Co. (Mo.), 12 S.W.2d 740; State ex rel. v. Woods, 234 Mo. 16; Maplegreen v. Trust Co., 237 Mo. 350.

Leahy, Saunders & Walther, Harold F. Hecker and Lyon Anderson for appellant Reece H. Horton.

(1) The court erred in giving and reading to the jury Instruction 5, for the reason that said instruction assumed negligence on the part of appellant. Van Natta v. St. Ry. Elec. L. & P. Co., 133 Mo. 13; Zini v. Terminal Railroad Assn., 235 S.W. 86; Glaser v. Rothschild, 221 Mo. 203; Coffey v. Carthage, 186 Mo. 583; Orris v. Ry. Co., 279 Mo. 1, 214 S.W. 124; Perkins v. United Rys. Co., 243 S.W. 224; Miller v. Busey, 186 S.W. 983; Connell v. A. C. L. Haas & Sons Fish Co., 257 S.W. 760, 302 Mo. 48; State ex rel. Hartford Fire Ins. Co. v. Trimble, 250 S.W. 393, 298 Mo. 418; Fife v. Railroad Co., 174 Mo.App. 655; Althage v. Peoples Motor Bus Co., 8 S.W.2d 924. (2) The court erred in giving and reading to the jury, at the request of defendant Nafziger Baking Company, Instruction 6, for the reason that said instruction assumes that appellant did not make a boulevard stop at Delmar. Authorities, supra. (3) The court erred in failing and refusing to sustain appellant's motion requiring plaintiff to elect as to which defendant it would proceed against under the last-chance theory. Rutledge v. Ry. Co., 110 Mo. 312; Berry v. Milling Co., 240 S.W. 829; Hanson v. Traction Co., 226 S.W. 1; Clark v. Terminal Co., 242 Mo. 570.

Mark D. Eagleton and Allen, Moser & Marsalek for respondent.

(1) The assignments of error made by this appellant, that erroneous instructions were given to the jury at the request of Nafziger Baking Company, the codefendant, present no question for review on appeal. Where plaintiff sustains injuries as the result of the joint negligence of two or more defendants, neither defendant, on appeal from a judgment in favor of plaintiff, can be heard to complain of alleged error in the instructions given for the other defendant. Leighton v. Davis (Mo.), 260 S.W. 989; Brickell v. Fleming (Mo.), 281 S.W. 951; Maher v. Coal & Coke Co. (Mo.), 20 S.W.2d 894; Beave v. Transit Co., 212 Mo. 331; Clark v. Railway Co., 234 Mo. 396. (2) The court did not err in overruling appellant's oral motion to require plaintiff to elect. (a) Where the petition describes a single cause of action, upon which but one recovery could be had, the plaintiff is not required to elect between different counts or allegations. Rinard v. Ry. Co., 164 Mo. 270; Rapp v. Transit Co., 190 Mo. 144; White v. Railroad, 202 Mo. 539. (b) The allegations of negligence under the humanitarian rule, made against both defendants, were not repugnant to each other. The humanitarian rule is broader than the "last-chance" theory. Under it both defendants were liable if each could have discovered the automobile of the other approaching and in a position of danger in time to have averted the accident. Brooks v. Menaugh (Mo.), 284 S.W. 803; Banks v. Morris & Co., 302 Mo. 254; Ellis v. Street Railway, 234 Mo. 680. (c) Even if the allegations of negligence, under the humanitarian rule, were inconsistent, appellant waived the point by the filing of his answer to the merits. Jordan v. Transit Co., 202 Mo. 418; Rinard v. Railroad, supra.

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

OPINION

HYDE

This is an action for damages for personal injuries sustained in a collision between an automobile, in which plaintiff was riding, belonging to Dr. Reece H. Horton and a truck belonging to the Nafziger Baking Company. Plaintiff had, on April 15, 1926, been to a St. Louis University dance at the Chase Hotel. Dr. Horton, then a medical student at St Louis University, had taken plaintiff and Dr. Blume, then also a medical student, together with Miss...