Bennette v. Hader

• Decision Date: 05 November 1935
• Parties: Hattie Bennette, Appellant, v. Walter Hader and Townsend Hader
• Court: Missouri Supreme Court

87 S.W.2d 413

337 Mo. 977

Hattie Bennette, Appellant, v. Walter Hader and Townsend Hader

Supreme Court of Missouri

November 5, 1935

Appellant's Motion for Rehearing Overruled November 5 1935.

Appeal from Clay Circuit Court; Hon. Ralph Hughes, Judge.

Affirmed.

Clif Langsdale, Fred Bellemere and Roy W. Rucker for appellant.

(1) The testimony of respondent Walter Hader: "I told my son that the car crowded us off of the road," was highly prejudicial, should not have been admitted, was self-serving and not a part of the res gestae. Landau v Travelers Ins. Co., 267 S.W. 378; Jackels v. K. C. Rys. Co., 231 S.W. 23; Gray v. Earls, 250 S.W. 567; McFarland v. Bishop, 221 S.W. 143; O'Day v. Annex Realty Co., 191 S.W. 41; Southern Iron & Equip. Co. v. Smith, 171 S.W. 754; Townsend v. Schaden, 204 S.W. 1076; State ex rel. Bankers Life v. Reynolds, 277 Mo. 24; Ruschenberg v. Railroad Co., 161 Mo. 80. (2) Respondents' Instruction 6 on the measure of damages was highly improper and did not declare the law of this State on that subject. It placed upon the appellant the burden of proving the amount of her pecuniary loss. That has never been the rule in Missouri in cases of this character. Barth v. Ry. Co., 44 S.W. 785; Tibbels v. Ry. Co., 219 S.W. 116; Polk v. Krenning, 2 S.W.2d 109. (3) The court erred in giving respondents' Instruction 7 for the reason that said instruction authorizes the jury to determine the question of respondents' liability on the conduct of respondents "at the time and place of the accident." To that extent it is in conflict with appellant's Instruction 1, which authorizes the jury to consider the conduct of respondents "at and prior to the time that said automobile was wrecked." Thus the jury was not authorized to consider the prior or antecedent negligence of respondents. Alexander v. Ry. Co., 38 S.W.2d 1026; Gray v. Columbia Terminals Co., 52 S.W.2d 813. (4) The testimony of respondents concerning the speed of their car and the effect of the slight collision (admitting that there was such a collision as was described by respondents) with the eastbound car is so wholly at variance with well known physical laws and common observation and experience that such statements do not amount to substantial evidence of the facts testified to and cannot be accepted as the basis of a verdict. Highfill v. Wells, 16 S.W.2d 103; Waldmann v. Skrainka Construction Co., 233 S.W. 247; Solomon v. Duncan, 185 S.W. 1142; Sexton v. Met. St. Ry. Co., 149 S.W. 25; Zalotuchin v. Met. St. Ry. Co., 106 S.W. 550.

James S. Simrall, Lawson & Hale, Hook & Sprinkle and Inghram D. Hook for respondents.

(1) There was no error in permitting Walter Hader to testify, "I told my son that the car crowded us off of the road." (a) Such testimony was a part of the res gestae. Leahey v. Cass Ave., 10 S.W. 60, 97 Mo. 171; State v. Martin, 28 S.W. 15, 124 Mo. 525; Smith v. Southern Ill. Co., 30 S.W.2d 1086; Brashear v. Ry. Co., 6 S.W.2d 651; Giles v. Ry. Co., 154 S.W. 852; Vaughan v. Ry. Co., 164 S.W. 144; Greenlee v. Kansas City Cas. Co., 182 S.W. 138; Unrein v. Oklahoma Hide Co., 244 S.W. 924. (b) Appellant cannot complain. Reynolds v. Maryland Cas. Co., 201 S.W. 1134. (c) The evidence was cumulative, hence harmless error. State ex rel. v. Trimble, 285 S.W. 732; Robinson v. Poplar Bluff, 293 S.W. 503; Anderson v. Wells, 261 S.W. 954. (2) Respondents' Instruction 6 was proper. (a) The instruction itself is correct. Barth v. Kansas City Elev. Ry. Co., 44 S.W. 784; Tibbels v. Railroad Co., 219 S.W. 116; Tetherow v. Ry. Co., 11 S.W. 313, 98 Mo. 74. (b) Appellant cannot complain. Tetherow v. Ry. Co., 11 S.W. 311, 98 Mo. 74; Sec. 3264, R. S. 1929; Polk v. Krenning, 2 S.W.2d 109. (c) Respondents having obtained the verdict, appellant cannot complain of respondents' damage instruction. Feary v. Met. St. Ry. Co., 62 S.W. 458; Schaefer v. Ry. Co., 30 S.W. 333; Williams v. Hyman-Michaels Co., 277 S.W. 595. (3) Respondents' Instruction 7 was proper. (a) The instruction itself was correct. Lake Shore & M. S. Ry. Co. v. Johnson, 26 N.E. 512, 135 Ill. 641; Lake Shore & M. S. Ry. Co. v. Ouska, 37 N.E. 898, 151 Ill. 232. (b) Appellant cannot complain. Smart v. Kansas City, 105 S.W. 721. (4) Respondents' testimony conformed to well-known physical laws and common observation and experience and was not at variance therewith. Highfill v. Wells, 16 S.W.2d 103; Crenshaw v. St. Louis Pub. Serv. Co., 52 S.W.2d 1039.

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

OPINION

BOHLING

Plaintiff seeks to recover damages for the alleged wrongful death of her husband, William Howard Bennette. The defendants, Walter Hader and Townsend Hader, his son, were the owner and operator, respectively, of the automobile in which plaintiff's husband was riding at the time of the accident resulting in his death. From a judgment for defendants, plaintiff appeals.

Plaintiff submitted her case to the jury on the negligent rate of speed of the Hader automobile.

The accident occurred about 2:30 P. M., June 19, 1930, on Highway No. 40 approximately forty miles west of Higginsville, Missouri, where the parties resided. David E. Zimmerman, who was ill, had requested Walter Hader, who consented, to take him to a hospital in Kansas City. The Lions Club of Higginsville had sponsored the treatment of a crippled girl in a Kansas City Hospital, and Mr. Bennette, as secretary of the club, had been authorized to attend to some business matters in connection therewith and return the girl to Higginsville. Messrs. Bennette and Walter Hader were members of the Lions club, and Mr. Hader, upon Mr. Bennette's request, consented to take him along and return the girl to Higginsville. The parties started from Higginsville about 1:10 P. M. in Mr. Hader's Studebaker sedan. Townsend Hader was driving, and with Mr. Zimmerman occupied the front seat. Mr. Bennette and Walter Hader were in the rear seat -- Mr. Hader being on the right side. While some of plaintiff's witnesses testified that the speed of the Hader automobile was in excess of sixty miles an hour a mile east and fifty miles an hour one-half mile east of the accident, the defendant testified that the speed of their automobile was approximately thirty-five miles an hour, and that it was traveling between thirty-five and forty miles an hour as it neared the scene of the accident, the view to the west there being somewhat obstructed by a curve in the highway and a hill. However, an eastbound Cadillac automobile, traveling astride the center line of the slab at a high rate of speed, was observed by the defendants as it topped a rise in the pavement, which was estimated at about one hundred and fifty to two hundred feet from the Hader automobile. The Hader automobile was turned to the extreme right of the slab when the automobiles were approximately one hundred and fifty feet apart. The two automobiles continued to approach each other in this manner, the Hader automobile slackening its speed to an estimated mileage of twenty-five miles an hour, until when about thirty feet apart, the Hader automobile was turned off the slab. It was, at the time on a slight downgrade. In passing, the Cadillac struck the left rear wheel or fender of the Hader automobile; and the front of the Hader automobile was caused to turn to the left or south and its operator lost control by reason of the impact. Some of plaintiff's witnesses testified that there was no Cadillac on the highway at the time and place involved. The Hader automobile continued down the shoulder of the slab for some distance, crossed the pavement to the south, and, crashing into several posts along the shoulder of the highway, came to rest with its wheels in the air and two of the posts through the top of the automobile. The distance the Hader automobile traveled after first leaving the slab was variously estimated, some of the witnesses putting it between seventy-five and one hundred and five feet. All of the occupants of the Hader automobile, with the exception of the driver who gripped the steering wheel, were thrown from the automobile. Mr. Bennette was thrown some twelve or fifteen feet from the automobile and expired within a few minutes. Other facts, essential to a determination of the issues presented, will be developed in the course of the opinion.

Over the objection and exception of plaintiff that the statement was self-serving and no part of the res gestae the court permitted Walter Hader to testify as follows: "I told my son that the car crowded us off the road." The evidence shows that Walter Hader was unconscious for four or five minutes after the accident; that he received a severe injury; that upon his regaining consciousness his son was by his side; and that he and his son went to Mr. Bennette, and, upon learning that Mr. Bennette was dead, Walter Hader made the statement. All this occurred, according to the witness, within just a minute "after he regained consciousness." Upon cross-examination, the witness testified, that his son was excited; that he made the statement because he wanted his son to know witness did not think it was the son's fault; that witness never thought it out; and that his son also knew it.

Plaintiff cites State ex rel. Bankers Life Co. v. Reynolds, 277 Mo. 14, 24, 208 S.W. 618, 620; Landau v. Travelers Ins. Co., 305 Mo. 563, 573, 267 S.W. 376, 378, and other like cases. In the Bankers Life Co. case the statement was made at least several days after the transaction to which it related (see 277 Mo. l. c. 23), and this court considered it no part of the res gestae. In the Landau case, involving an insurance policy, the decision turned on whether insured's fall from a street car was accidental or intentional. The court held there was some element of discretion vested in trial...