Bolino v. Illinois Terminal R. Co.

• Citation: 200 S.W.2d 352,355 Mo. 1236
• Decision Date: 10 March 1947
• Docket Number: 40078
• Parties: Alto Bolino, Administrator of the Estate of Fred Bolino, Deceased, v. Illinois Terminal Railroad Company, Appellant
• Court: United States State Supreme Court of Missouri

200 S.W.2d 352

355 Mo. 1236

Alto Bolino, Administrator of the Estate of Fred Bolino, Deceased, v. Illinois Terminal Railroad Company, Appellant

No. 40078

Supreme Court of Missouri

March 10, 1947

Appeal from Circuit Court of City of St. Louis; Hon. Francis E Williams, Judge.

Affirmed.

Roscoe Anderson and Cullen Coil for appellant Anderson, Gilbert, Wolfort, Allen & Bierman of counsel.

(1) Instruction B was a proper sole cause instruction to which under the facts in evidence appellant was entitled in order to submit to the jury the issue whether the sole negligence of the deceased was the sole cause of the death of deceased. The instruction properly hypothesized the facts in evidence from which the jury could so find. Kimbrough v Chervitz, 353 Mo. 1154, 186 S.W.2d 461; Hornsby v. Fisher, 85 S.W.2d 589; Fassi v. Schuler, 349 Mo. 160, 159 S.W.2d 774; Connole v. Illinois Central Railroad Co., 21 S.W.2d 907; Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; Hough v. Chicago, R.I. & P. Ry. Co., 339 Mo. 1169, 100 S.W.2d 499; DaPron v. Neu, 43 S.W.2d 915; Wilson v. Thompson, 345 Mo. 319, 133 S.W.2d 331; Johnston v. Ramming, 340 Mo. 311, 100 S.W.2d 466; Blech v. Berzon, 61 S.W.2d 201; Dipaoli v. Langeman, 192 S.W.2d 35; Johnson v. Dawidoff, 352 Mo. 343, 177 S.W.2d 467; Good v. M.-K.-T. R. Co., 339 Mo. 330, 97 S.W.2d 612. (2) Instruction D was a short, simple and approved instruction on the burden of proof. There was no other burden of proof instruction given and appellant was entitled to have the jury instructed as to plaintiff's burden of proof even in a res ipsa case. Palmer v. Hygrade Water & Soda Co., 236 Mo.App. 247, 151 S.W.2d 548; Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; Mackler v. Barnert et ux., 49 S.W.2d 244; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557; Adams v. LeBow, 236 Mo.App. 899, 160 S.W.2d 826. (3) Instruction G properly told the jury not to award damages for loss of companionship or mental anguish suffered by the parents because of the death of deceased. The language of respondent's Instruction 6, the damage instruction, without the limitation contained in Instruction G, permitted the jury to award damages for loss of companionship and mental anguish of the parents which are not recoverable elements of damages. American R. Co. v. Didricksen, 227 U.S. 145, 57 L.Ed. 456; Truesdale v. Wheelock, 335 Mo. 924, 74 S.W.2d 585; Crecelius v. Chicago, M. & St. P. Ry. Co., 284 Mo. 26, 223 S.W. 413. (4) Instruction 4 assumed without requiring a finding thereof that the father and mother of the deceased might reasonably expect to receive future pecuniary benefits from deceased if he had not been killed. Whether the parents did have any such reasonable expectation was a highly controverted fact in the case and an assumption of this controverted fact was reversibly erroneous. Cantley v. M.-K.-T. R. Co., 183 S.W.2d 123; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; Weinel v. Hesse, 174 S.W.2d 903; State ex rel. Highway Commissioner v. Riggs, 226 Mo.App. 1053, 47 S.W.2d 178; Garrett v. Louisville & N.R. Co., 235 U.S. 308, 59 L.Ed. 242. (5) Instruction No. 6 permits the jury to consider the health of the deceased's mother when there was no evidence whatever in the record of the state of her health and constituted permission to the jury to consider a material fact not in evidence in determining the amount of damages. The mother did not take the witness stand and the jury had no way of determining the state of her health. Siemers v. St. Louis Electric Term. Ry. Co., 348 Mo. 682, 155 S.W.2d 130. (6) It assumes without requiring a finding thereof that the beneficiaries of deceased might reasonably expect to receive future pecuniary benefits. Authorities cited under Point (4) of this brief. (7) It permits the jury to take into consideration in determining the pecuniary loss of the parents the care and attention which they might expect from deceased when there was no evidence in the record on which to base a finding of loss of future care and attention. American R. Co. v. Didricksen, 227 U.S. 145, 57 L.Ed. 456; Norfolk & Western R. Co. v. Holbrook, 235 U.S. 625, 59 L.Ed. 392; Kansas City S.R. Co. v. Leslie, 238 U.S. 599, 59 L.Ed. 1478; Jenkins v. Wabash Ry. Co., 232 Mo.App. 438, 107 S.W.2d 204. (8) It fails to direct the jury that the damages to be assessed by reason of loss of pecuniary benefits must be based upon the life expectancies of the mother and father rather than the life expectancy of the deceased. The life expectancies of the mother and father were both much shorter than the life expectancy of the deceased and thus it was essential to limit the jury to the shorter expectancies. Lofty v. Lynch-McDonald Const Co., 215 Mo.App. 163, 256 S.W. 83; McCord v. Schaff, 279 Mo. 558, 216 S.W. 320; McIntyre v. St. Louis-S.F. Ry. Co., 286 Mo. 234, 227 S.W. 1047; Chicago, B. & Q.R. Co. v. Kelley, 74 F.2d 80. (9) The verdict is grossly excessive. Dodd v. M.-K.-T. R. Co., 193 S.W.2d 905; Sibert v. Litchfield & M. Ry. Co., 159 S.W.2d 612; Carpenter v. Kurn, 348 Mo. 1132, 157 S.W.2d 213; Hancock v. Kansas City Term. Ry. Co., 347 Mo. 166, 146 S.W.2d 627.

Louis E. Miller and Miller & Landau and B. Sherman Landau for respondent.

(1) The court properly refused defendant's requested Instruction B, on sole cause. It is not supported by the evidence, does not hypothesize facts which would negative defendant's negligence, is misleading and confusing and otherwise erroneous. Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853; 45 U.S.C.A., sec. 53-54; McCarthy v. Pennsylvania R. Co., 156 F.2d 877; Hillis v. Rice, 151 S.W.2d 717, 724; Semar v. Kelly, 352 Mo. 157, 176 S.W.2d 289. (2) Defendant's requested Instruction D, on burden of proof, was properly refused. Two other instructions advised the jury concerning plaintiff's burden; a third instruction would have over-emphasized the burden. Mitchell v. Dyer, 57 S.W.2d 1082, 1083; Miller v. Williams, 76 S.W.2d 355. (3) Defendant's requested Instruction G, on elements of damage which were not in the case, was properly refused. It is confusing and misleading. Jenkins v. Wabash Ry. Co., 232 Mo.App. 438, 107 S.W.2d 204. (4) The court properly modified defendant's requested Instruction A, and read it to the jury, in its corrected form, as Instruction 4. Menke v. Rovin, 352 Mo. 826, 180 S.W.2d 24. (5) Plaintiff's Instruction 6, on measure of damages, properly submitted the allowable elements of recovery. Pittsburgh, C.C. & St. L. Ry. Co. v. Collard's Adm'r, 170 Ky. 239, 185 S.W. 1108, error dismissed, 246 U.S. 653, 38 S.Ct. 336, 62 L.Ed. 922; Moffett v. Baltimore & O.R. Co., 220 F. 39, 135 C.C. A. 607. (6) The verdict is not excessive; it is more properly vulnerable to charge of inadequacy. Illinois Cent R. Co. v. Humphries, 174 Miss. 459, 164 So. 22, 102 A.L.R. 549; Dodd v. M-K.-T.R. Co., 193 S.W.2d 905; Joice v. M.-K.-T.R. Co., 189 S.W.2d 568, 161 A.L.R. 383; Francis v. Terminal R. Assn. of St. Louis, 193 S.W.2d 909.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action under the Federal Employers' Liability Act (45 U.S.C.A., Sec. 53 et seq.) to recover damages because of the death of Fred Bolino, an employee of defendant. The suit was brought by the administrator (the father) of deceased for the benefit of the father and mother.

The petition was in two counts and alleged general negligence (res ipsa). The first count asked for damages in the sum of $ 15,000 for conscious pain and suffering, and the second count asked for $ 85,000 for the pecuniary loss. So far as concerned here the answer was a general denial. The jury found for defendant on the first count and for plaintiff on the second count in the sum of $ 13,500. Judgment went accordingly and defendant appealed.

Defendant (appellant) assigns error on the refusal of its requested instructions B, D, and G; on the giving of instruction 6; on modified instruction 4; and an alleged excessive verdict.

Deceased, 33 years old, was the unmarried son of plaintiff administrator and his wife, Frederica, and was killed in the derailment of a pushcar drawn by a motorcar about 9 a.m. on December 29, 1945, about three-quarters of a mile north of Wood River, Illinois, and it is conceded that, at the time, deceased and defendant were engaged in the furtherance of interstate commerce. Deceased was a bond welder and at the time of the derailment, he and his welding helper, Lewis Votrain, were riding on the pushcar. The motorcar was operated by defendant's section foreman, Val Gilbreath, and all were on their way to a previously designated point on the track where a bond or bonds were to be welded on.

Cecil Rowlands was a welder and deceased was under Rowlands. Prior to December 29th Rowlands had directed deceased to replace bonds where necessary on the track where the derailment occurred. Ordinarily the welders used their own truck to carry welding equipment and to get to the places where bonds were to be welded, but sometimes a truck could not get sufficiently near to some of the places, and that seems to have been the situation December 29th. Anyway, on December 29th, defendant's roadmaster, C. E. Winkler, directed Gilbreath to use the motorcar and pushcar and take deceased and his helper, with their welding equipment, to the places where bond welding was to be done, and Gilbreath did so.

Bonds are woven strands of small copper wire; are round and are from one half inch to one inch in diameter, and vary in length from 8 inches to 30 inches. Over each end, for welding purposes, is a triangular and flat like piece of solid copper some 3 inches in length. The bonds are welded to the rail ends, on the outside, and transmit electric current from one rail to the next. The pushcar was coupled to the motorcar by a round iron coupling rod about 1...