Boulos v. Kansas City Public Service Co.

• Decision Date: 12 September 1949
• Docket Number: 41338
• Parties: Adele Boulos, Respondent, v. Kansas City Public Service Company, a Corporation, Appellant
• Court: Missouri Supreme Court

223 S.W.2d 446

359 Mo. 763

Adele Boulos, Respondent, v. Kansas City Public Service Company, a Corporation, Appellant

No. 41338

Supreme Court of Missouri

September 12, 1949

Motion for Rehearing or to Transfer to Banc Overruled October 10 1949.

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

SYLLABUS

Plaintiff bus passenger was thrown to the floor by a sudden jerk of defendant's bus. Plaintiff made a submissible case under the res ipsa loquitur doctrine, and her instruction No. 1 did not submit specific negligence of the bus driver. Testimony by a bus passenger as to the unusual nature of the sudden jerk of the bus was not erroneous. Admission of plaintiff's photograph was not prejudicial. The verdict was not excessive.

Charles L. Carr, J. D. James, Hogsett, Trippe, Depping, Houts & James for appellant.

(1) It was error to submit the case to the jury on specific negligence in Instruction 1 and the first part of Instruction 2, and then, in the latter part of Instruction 2, to instruct the jury that they might infer negligence upon the res ipsa loquitur theory; and the Court of Appeals correctly so held. Instruction 1 submits specific negligence. Stolovey v. Fleming, 328 Mo. 623, 8 S.W.2d 832; Grimm v. Globe Printing Co., 232 S.W. 676; Duggan v. St. Louis Pub. Serv. Co., 56 S.W.2d 626; Hoeller v. St. Louis Pub. Serv. Co., 199 S.W.2d 7; Hughes v. East St. Louis City Lines, 149 S.W.2d 440; State ex rel. Spears v. McCullen, 210 S.W.2d 68; Mendenhall v. Springfield Traction Co., 26 S.W.2d 50; Miller v. United Rys. Co., 155 Mo.App. 528, 134 S.W. 1045; Lammert v. Wells, 13 S.W.2d 547; Jones v. Central States Oil Co., 164 S.W.2d 914. (2) Where specific negligence is submitted it is error to permit the jury to infer negligence. Berry v. K.C. Pub. Serv. Co., 343 Mo. 474, 121 S.W.2d 825; Conduitt v. Trenton Gas & Elec. Co., 326 Mo. 133, 31 S.W.2d 21; Sanders v. City of Carthage, 330 Mo. 844, 51 S.W.2d 529; Glasco Elec. Co. v. Union Elec. L. & P. Co., 332 Mo. 1079, 61 S.W.2d 955; Powell v. St. Joseph Ry., L., H. & P. Co., 336 Mo. 1016, 81 S.W.2d 957; Heckfuss v. American Packing Co., 224 S.W. 99; Kennedy v. Phillips, 319 Mo. 573, 5 S.W.2d 33. (3) There was no proof that the operator of defendant's bus was the one who caused the bus to lurch and jerk, etc., and the submission in Instruction 1 and the first part of Instruction 2 authorizing the jury so to find was error. Mendenhall v. Springfield Traction Co., 26 S.W.2d 50; State ex rel. v. Cox, 298 Mo. 427, 250 S.W. 551; Cardinale v. Kemp, 309 Mo. 241, 274 S.W. 437. (4) The court erred in admitting evidence as to the movement of the bus which consisted of conclusions and which was elicited in an improper and prejudicial manner. The testimony of Rose Boulos as to the movement of the bus consisted of conclusions and declamatory statements. Elliott v. Chicago, M. & St. P. Ry. Co., 236 S.W. 17; Guffey v. Railroad, 53 Mo.App. 462; Hedrick v. Railroad, 195 Mo. 104, 93 S.W. 268; Hawk v. C., B. & Q.R. Co., 130 Mo.App. 658; Anderson v. Asphalt Distributing Co., 55 S.W.2d 688; Haddow v. St. Louis Pub. Serv. Co., 38 S.W.2d 284; Hall v. Wilkerson, 84 S.W.2d 1063; Hanke v. St. Louis, 272 S.W. 933; Landau v. Travelers Ins. Co., 305 Mo. 563, 287 S.W. 346. (5) The testimony as to the movement of the bus was elicited by leading, suggestive and argumentative questions. State v. Culpepper, 293 Mo. 249, 238 S.W. 801; Engleking v. K.C., Ft. Scott & Memphis R. Co., 187 Mo. 158, 86 S.W. 89; State v. Fannon, 158 Mo. 149, 59 S.W. 75; Harper v. Western Union Telegraph Co., 92 Mo.App. 304; 3 Wigmore 122; Henry v. Sioux City & P.R. Co., 66 Iowa 52, 23 N.W. 260; Koehn v. City of Hastings, 114 Neb. 106, 206 N.W. 19; Luse v. Gibson, 26 S.W.2d 1081; Nurnberger v. U.S., 156 F. 721. (6) It was error to admit in evidence a photograph of plaintiff which was taken approximately 3 years before the accident and approximately 7 years before the trial, when the photograph was not properly identified as representing plaintiff's appearance at the time of the accident. Gignoux v. St. Louis Pub. Serv. Co., 180 S.W.2d 784; Home Ins. Co. of N.Y. v. Savage, 231 Mo.App. 569, 103 S.W.2d 900; McCormick v. Lowe & Campbell, 144 S.W.2d 866; Smith v. East St. Louis Ry. Co., 234 Mo.App. 1220, 123 S.W.2d 198; Baustian v. Young, 152 Mo. 317, 53 S.W. 921, 75 Am. St. Rep. 462; Haven v. Snyder, 176 N.E. 149, 93 Ind.App. 54; United Verde Extension Mining Co. v. Jordan, 14 F.2d 304; Hooks v. General Storage and Transfer Co., 63 S.W.2d 527. (7) The verdict of $ 4,500 was excessive. Taylor v. Terminal Railroad Assn., 112 S.W.2d 944.

Ben W. Swofford, N.R. Fischer and Laurence R. Smith for respondent.

(1) Instruction 1 did not submit specific negligence but, on the contrary, was a proper and approved res ipsa loquitur instruction supported by the evidence and the facts of the case. Jones v. Kansas City Pub. Serv. Co., 236 Mo.App. 794, 155 S.W.2d 775; Welch v. Thompson, 210 S.W.2d 79; Semler v. Kansas City Pub. Serv. Co., 355 Mo. 388, 196 S.W.2d 197; Sharon v. Kansas City Pub. Serv. Co., 208 S.W.2d 471. (2) The trial court did not err in giving Instruction 2. Thompson v. Kansas City Pub. Serv. Co., 232 Mo.App. 1124, 114 S.W.2d 145; Jones v. Kansas City Pub. Serv. Co., 236 Mo.App. 794, 155 S.W.2d 775. (3) Appellant's authorities distinguished. Berry v. Kansas City Pub. Serv. Co., 343 Mo. 474, 121 S.W.2d 825; Conduitt v. Trenton Gas & Elec. Co., 326 Mo. 133, 31 S.W.2d 21; Sanders v. City of Carthage, 330 Mo. 844, 51 S.W.2d 529; Glasco Elec. Co. v. Union Elec. L. & P. Co., 332 Mo. 1079, 61 S.W.2d 955; Heckfuss v. American Packing Co., 224 S.W. 99; Mendenhall v. Springfield Traction Co., 26 S.W.2d 50; Duggan v. St. Louis Pub. Serv. Co., 56 S.W.2d 626; Grimm v. Globe Printing Co., 232 S.W. 676; Powell v. St. Joseph Ry., Light, H. & P. Co., 336 Mo. 1016, 81 S.W.2d 957; Hughes v. East St. Louis City Lines, 149 S.W.2d 440; Stolovey v. Fleming, 328 Mo. 623, 8 S.W.2d 832; Lammert v. Wells, 13 S.W.2d 547; Miller v. United Rys. Co., 155 Mo.App. 528, 134 S.W. 1045; State ex rel. Spears v. McCullen, 210 S.W.2d 68; Hoeller v. St. Louis Pub. Serv. Co., 199 S.W.2d 7. (4) It was neither error to permit the recall of Rose Boulos, nor to admit into evidence the testimony given by her. There was no error in permitting the recall. McKissick v. Interstate Transit Lines, 201 S.W.2d 189; Long v. Thompson, 183 S.W.2d 96; Berberet v. Elec. Park Amusement Co., 310 Mo. 655, 276 S.W. 36; Crews v. Kansas City Pub. Serv. Co., 111 S.W.2d 54. (5) The testimony as to the movement of the bus was proper. Elliott v. Chicago, M. & St. P. Ry. Co., 236 S.W. 17; Crenshaw v. St. Louis Pub. Serv. Co., 52 S.W.2d 1035; Shafer v. Kansas City Rys. Co., 201 S.W. 611. (6) The testimony was not elicited by improper questions. Williams v. Kane, 55 S.W. 974; C.J. 517, Witnesses, sec. 680. (7) The testimony was not prejudicial. Laycock v. United Rys. Co. of St. Louis, 235 S.W. 91; Myers v. Wells, 273 S.W. 110; Shafer v. Kansas City Rys. Co., 201 S.W. 611; Burger v. Boardman, 254 Mo. 238, 162 S.W. 197; Shouse v. Dubinsky, 38 S.W.2d 530. (8) It was not error to admit in evidence a photograph of plaintiff which was taken approximately 3 years before the accident, even though the photograph was not specifically identified as representing plaintiff's appearance at the time of the accident, where there was other evidence to show that plaintiff's appearance at time picture was taken was substantially the same as that at time of accident. Reed v. Coleman, 167 S.W.2d 125; Young v. Dunlap, 190 S.W. 1041; Hunt v. St. Louis, 278 Mo. 213, 211 S.W. 673; McCormick v. Lowe & Campbell, 144 S.W.2d 866; Smith v. East St. Louis Ry. Co., 234 Mo.App. 1220, 123 S.W.2d 198; Home Ins. Co. of N.Y. v. Savage, 231 Mo.App. 569; 22 C.J. 919, Evidence, sec. 1124. (9) The verdict of $ 4,500 was not excessive. Kennedy v. Hartwig Dischinger Realty Co., 201 S.W.2d 475; Taylor v. Terminal Railroad Assn., 112 S.W.2d 944; O'Bauer v. Katz Drug Co., 49 S.W.2d 1065; Ogilvie v. Kansas City Pub. Serv. Co., 27 S.W.2d 733; Webb v. M.-K.-T.R. Co., 342 Mo. 394, 116 S.W.2d 27; Plater v. Kansas City, 334 Mo. 842, 68 S.W.2d 800; Zichler v. St. Louis Pub. Serv. Co., 332 Mo. 902, 59 S.W.2d 654; McEntee v. Kansas City Pub. Serv. Co., 159 S.W.2d 336; Johnson v. Terminal R. Assn. of St. Louis, 191 S.W.2d 676.

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

OPINION

VAN OSDOL

Action for personal injury. Upon trial plaintiff was awarded $ 4500 by the jury and defendant perfected its appeal from the ensuing judgment to the Kansas City Court of Appeals. Plaintiff had charged defendant's bus "was so carelessly and negligently operated, controlled, and maintained by the defendant, its agent, servant, and employee, that it was caused to lurch and jerk in a sudden, violent, and unusual manner - - - causing this plaintiff to be thrown violently to the floor."

In the Kansas City Court of Appeals, the defendant-appellant contended (and herein contends), (1) the trial court was erroneously inconsistent in submitting specific negligence by Instruction No. 1, and additionally authorizing the jury to infer negligence under the res ipsa loquitur doctrine by Instruction No. 2. Defendant-appellant further contended, (2) that the evidence did not support the submission a particular agent (the operator of the bus) caused the bus to lurch; (3) that testimony of the movement of the bus consisted of conclusions elicited in a manner improper and prejudicial and by leading, suggestive and argumentative questions; and that (4) a photograph of plaintiff was erroneously admitted into evidence. And defendant-appellant finally contended, (5) the jury's award ($ 4500) was excessive.

In reviewing the case, the Kansas City Court of Appeals, by majority...