Agee v. Herring

• Citation: 298 S.W. 250
• Decision Date: 06 June 1927
• Docket Number: Mo. 16646.
• Parties: AGEE v. HERRING
• Court: Court of Appeal of Missouri (US)

298 S.W. 250

AGEE v. HERRING

Mo. 16646.

Kansas City Court of Appeals, Missouri.

June 6, 1927.

Rehearing Denied June 27, 1927.

Certiorari Denied by Supreme Court September 27, 1927.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Esther Agee against Jack Herring. Judgment for plaintiff, and defendant appeals. Affirmed.

Horace Guffin and George W. Meyer, both of Kansas City, for appellant.

Harry G. Kyle and Walter A. Raymond, both of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $2,000 and defendant has appealed.

The facts show that plaintiff's injuries grew out of an automobile collision which took place at Twentieth and Main streets in Kansas City, Mo., about 11:30 p. m. of December 9, 1923. Main street is a north and south street and about 60 feet in width; Twentieth street is an east and west street intersecting Main street and is about 40 feet in width. Plaintiff's evidence tends to show that she was riding as a guest in a Ford automobile, being driven by one Giffin north on the east side of Main street. The automobile approached Twentieth street at a rate of speed of about 15 miles per hour. There was a defect in the pavement on Main street from 2 to 5 feet south of the south curb of Twentieth street, which caused the driver of the Ford car to slow down. The car then proceeded across Main street at about 10 miles per hour, being driven straight north, about 2 or 3 feet east of the most easterly rail of the double track street car line that ran along Main street at the place in controversy. The Ford car was entering the intersection of the two streets when defendant, driving a Dodge roadster, was seen on Twentieth street about 40 feet west of Main street, approaching the latter at the rate of 30 miles per hour. Defendant continued on toward the east without slackening his speed or giving any signal warning and struck the Ford car about the center of Twentieth street or a little south thereof. The left front fender of the Dodge roadster struck the rear left wheel of the Ford, causing the latter to be whirled completely around and upsetting it so that when it stopped it was bottom side up and near the northeast corner of the intersection of the two streets. After the collision the Dodge did not immediately stop but proceeded onward on Twentieth street a short distance when it turned around and came back. One of defendant's witnesses testified that the Ford car turned over three times. Plaintiff testified that she did not see the Dodge roadster at any time before the collision.

The evidence on behalf of defendant tended to show that he approached Main street at a reasonable rate of speed; that he stopped before entering the intersection and permitted a street car and several automobiles to pass in front of him on Main street, whereupon he shifted into low gear and proceeded at the rate of 3 or 4 miles per hour into the intersection and across Main street in an easterly direction to the right of the center of the intersection; that when he was crossing the intersection and approaching the rails of the north-bound or east street car tracks he first observed the presence of the Ford car; that at this time the Ford was proceeding north on the east side of Main street and was about 150 feet south of Twentieth street. traveling at a rate of speed of approximately 35 to 40 miles per hour. Concluding that he could not then proceed across the street in safety, defendant brought his automobile to a complete stop so as to permit the Ford car to pass in front of him. When he came to a stop the rear wheels of his automobile were on the east rail of the east or north-bound street car track. His car was 11 feet 3 inches long. When the Ford reached the south line of the intersection, its driver attempted to turn to the right and in so doing he struck against and "side-swiped" the right side of the bumper of defendant's automobile. The Ford driver then proceeded towards the building on the northeast corner of Twentieth and Main streets when it turned so sharply to the left that it lost its balance and turned over, coming to a stop at a point 15 or 20 feet north of the north curb line of Twentieth street and near the east curb of Main street. Defendant's automobile remained with his rear wheels on the east or north-bound street car rails with his front end turned somewhat in a northeasterly direction.

When the case went to trial the petition alleged a number of acts of negligence on the part of defendant, which acts and conduct on his part were pleaded as being merely negligent but near the close of plaintiff's testimony she amended her petition by inserting at the end of the charges of negligence the following:

"Plaintiff further states that the aforesaid acts of the defendant were committed with a reckless, willful and wanton disregard for the safety of others."

No exemplary damages were asked. Defendant filed no motion to require the plaintiff to elect but filed an answer which consisted of a general denial.

Defendant insists that the amended petition fails to state a cause of action in that on its face it is a felo de se, citing in support of this contention the case of Raming v. Met. St. Ry. Co., 157 Mo. 477, 57 S. W. 268, and some other cases founded upon the Raining Case. What was said in the Raining Case seems to uphold defendant's contention but that case, while it has not been overruled, has undergone considerable revision in recent years. It was later conceded that proof of negligence necessarily disproves willfulness and vice versa and for this reason the two allegations cannot be joined in the same count but that they are not repugnant and when founded upon the same acts, there is but one cause of action which may be stated in different counts. Waechter v. St. Louis & M. R. R. Co., 113 Mo. App. 270, 88 S. W. 147. That an allegation of negligence and one of reckless, willful, and wanton acts are not wholly repugnant, is also established by the following authorities: Miller v. Harpster, 273 Mo. 605, 201 S. W. 854; Reel v. Consolidated Investment Co. (Mo. Sup.) 236 S. W. 43, 46; Troxell v. De Shon (Mo. App.) 279 S. W. 438; Myers v. Adler, 188 Mo. App. 607, 617, 176 S. W. 538. In Miller v. Harpster, supra, loc cit. 614 (201 S. W. 856), the Supreme Court said concerning a contention similar to the one now made:

"This petition contains but one cause of action. It is founded upon a single injury. Precisely the same evidence must support it in either aspect in which we have considered it. No exemplary damage being asked, the same measure of damages applies alike under each theory. Had there existed any reason why the appellant might have profited by compelling the reformation of the petition or the election of the respondent to adopt one of the two rival theories before entering upon the trial, that reason was swept away in the developments of the trial itself, upon which the appellant voluntarily entered without asking such reformation or election, and he cannot now treat the course which he invited as error."

In Evans v. Illinois Cent. R. Co., 289 Mo. 493, 233 S. W. 397, cited by defendant, no question of pleading was involved but the court held that there was no evidence that the engineer of the train which struck the deceased was guilty of any reckless, willful, wanton or intentional act.

Complaint is made of the giving of plaintiff's instruction No. 1, which reads as follows:

"The court instructs the jury that if you find and believe from the evidence that at the time and place in question the plaintiff was riding as a passenger in a Ford touring car which was being driven and operated north on Main street, if so, and was approaching the intersection of that street and Twentieth street, both public streets in Kansas City, Jackson county, Mo., if so, and that at that time the defendant was driving and operating an automobile east on Twentieth street at a high and negligent rate of speed, if so, and that defendant's said automobile was approaching said intersection, if so, and that just as the Ford touring car in which plaintiff was a passenger reached the center of Twentieth street in said intersection, if so, the defendant negligently drove his said automobile into violent collision with said Ford touring car in which plaintiff was riding, if so, and that he negligently failed to wait until the Ford touring car in which plaintiff was riding had crossed said intersection before driving his automobile into said intersection, if so, and that he negligently failed to swerve his automobile to one side before...