Bellovich v. Griese

• Decision Date: 23 December 1936
• Docket Number: No. 32865.,32865.
• Parties: BELLOVICH v. GRIESE.
• Court: Missouri Supreme Court

100 S.W.2d 261

BELLOVICH v. GRIESE.

No. 32865.

Supreme Court of Missouri, Division No. 2.

December 23, 1936.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

Suit by Anna Bellovich, an infant, by Philip Gallop, her next friend, against Heinz Griese. From a judgment for the defendant, the plaintiff appeals.

Reversed and remanded.

Hyman G. Stein, of St. Louis, for appellant.

Green, Henry & Remmers, of St. Louis, for respondent.

COOLEY, Commissioner.

In this case, which recently came to the writer on reassignment, Anna Bellovich, an infant, sued by next friend to recover damages for personal injuries sustained by her in an automobile collision. We shall refer to her as plaintiff and to respondent Griese as defendant. On trial to a jury there was a verdict and judgment for defendant, from which plaintiff appealed.

The collision in which plaintiff was injured occurred about 2 o'clock a. m., February 6, 1931, at the intersection of Compton avenue, a north and south street, and Longfellow boulevard, an east and west street, in St. Louis. Plaintiff, a servant girl, then about sixteen years old, with her friend, Mary Branka, also a servant girl and about the same age, and four others, including the driver, were riding southward on Compton avenue in a Packard "Black & White" taxicab operated by Eugene Saunders, when said Packard car and defendant's Studebaker car, being driven by him westward in Longfellow avenue, collided in the intersection.

Plaintiff's petition charged several specifications of primary negligence and negligence under the humanitarian doctrine. Defendant's answer was a general denial and a plea of contributory negligence. The case was submitted to the jury on only the specification of negligence under the humanitarian doctrine. Plaintiff made a case to go to the jury on that issue. Because the judgment must be reversed for reasons presently to be noted, the foregoing will suffice as a general statement of the facts. Other facts will be referred to hereinafter.

The court, at defendant's request, gave an instruction on burden of proof reading as follows: "The charge laid by plaintiff against the defendant is one of negligence. Negligence is a positive wrong, and therefore in this case is not presumed. In other words, a recovery may be had on a charge of negligence, only when such charge is sustained by the preponderance, that is, the greater weight, of the credible evidence to the reasonable satisfaction of the jury and it does not devolve upon the defendant to disprove the charge, but, rather, the law casts the burden of proof in respect of it upon the plaintiff, and such charge of negligence must be sustained by the preponderance, that is, the greater weight, of the credible evidence to the reasonable satisfaction of the jury. If, therefore, you find the evidence touching the charge of negligence against the defendant to be evenly balanced, or the truth as to the charge of negligence against defendant remains in doubt in your minds, after fairly considering the evidence, your verdict must be for the defendant." (Italics ours.)

In several recent cases this court has held similar instructions to be erroneous, as casting upon a plaintiff a greater burden than the law requires. It was so held by Division 1 in Payne v. Reed, 332 Mo. 343, 59 S.W.(2d) 43. In Aly v. Terminal R. R. Ass'n, 336 Mo. 340, 78 S.W.(2d) 851, in Division 2, the question was fully considered, and we held the giving of a similar instruction to have been reversible error. That ruling was followed by the court en banc in Sheehan v. Terminal R. R. Ass'n, 336 Mo. 709, loc. cit. 717, 81 S. W.(2d) 305, loc. cit. 308, wherein the court said: "Such an instruction goes to the substance of plaintiff's right of action and cannot be classified as a matter of procedure." Three of the judges are marked as dissenting in said Sheehan Case, but their dissent evidently was not on this point, because they concurred in the subsequent opinion in Grimes v. Red Line Service, Inc., 337 Mo. 743, 85 S.W. (2d) 767 (Division 1), wherein the Aly Case, supra, is cited and followed. Thus in both divisions and en banc this court has held the giving of an instruction similar to the one before us to be reversible error. For such error in the instant case the judgment must be reversed.

Since there may be another trial, we shall notice certain other contentions. Appellant complains of the giving of defendant's instruction No. 5 on credibility of witnesses because, inter alia, it directs the jury that if they believe any witness has knowingly sworn falsely to any material facts, they are at liberty to reject all or any portion of such witness' testimony. The instruction is in form such as has often been approved. Appellant's complaint is that there was no such conflict in the testimony as to warrant that part of the instruction above referred to. We do not agree with this contention. The evidence in behalf of the respective parties presented such sharp conflict and conflict of such nature as in our opinion warranted said instruction.

Appellant contends that error was committed in the latitude allowed defendant's counsel in cross-examination of plaintiff and her witness Mary Branka, whereby she claims much extraneous matter was injected into the case which had no bearing upon the issues and was calculated only to distract the jurors' attention from the real issues or to prejudice them against her. Similar complaint is made as to the statement of defendant's counsel to the jury forecasting the introduction of such evidence. We are inclined to think there is some merit in this complaint. It will be recalled that the accident occurred at about 2 o'clock a. m., February 6th. Defendant was permitted to cross-examine both girls at great length and in minute detail as to their movements from about the middle of the preceding afternoon when they went to a moving picture show together, until the time of the collision. It was thus brought out that plaintiff wanted to go to North St. Louis to see a woman with whom she had made an engagement by telephone to see about getting employment. She had been given instructions how to get there by street car but had forgotten or failed to understand them and, having been in the city only about two weeks, was confused as to directions and locations. It seems that Miss Branka was also uncertain as to the proper car to take. While the girls were standing at a...