Brinkley v. United Biscuit Co. of America

• Decision Date: 28 July 1942
• Docket Number: 38016,38017
• Citation: 164 S.W.2d 325,349 Mo. 1227
• Parties: Helen Brinkley v. United Biscuit Company of America, a Corporation, and James Francis McDaniel, Appellants. Helen Brinkley v. I. H. Shell, Lee Shell and Claud Myers, Appellants
• Court: Missouri Supreme Court

164 S.W.2d 325

349 Mo. 1227

Helen Brinkley v. United Biscuit Company of America, a Corporation, and James Francis McDaniel, Appellants. Helen Brinkley v. I. H. Shell, Lee Shell and Claud Myers, Appellants

Nos. 38016, 38017

Supreme Court of Missouri

July 28, 1942

Rehearing Denied September 8, 1942.

Appeal from Stoddard Circuit Court; Hon. James V. Billings Judge.

Affirmed.

Frye & Rowan for I. H. Shell, Lee Shell and Claud Myers appellants.

(1) There was a fatal variance between the pleadings and the proof, the plaintiff having pleaded one act of negligence, namely, parking and stopping the truck, and having proved another, namely, having gone upon the highway with a dead truck which they could not immediately move once it had stopped itself. Haines v. Pearson, 75 S.W. 194, 100 Mo.App. 551; Hughes v. Kiel, 100 S.W.2d 48; Waldhier v. Hannibal & St. Joseph Railroad Co., 71 Mo. 514; Buffington v. Atlantic & Pacific Railroad Co., 64 Mo. 246. (2) There was no evidence upon which to submit the charge that the Shell defendants stopped or parked their truck on the paved portion of the highway; and the giving of Instruction P-2 submitting such basis of recovery is error. Gandy v. St. Louis-S. F. Railroad Co., 44 S.W.2d 634. (3) The special demurrers to the evidence (Z and Z-4) offered by the Shell defendants (104 and 106) should have been given, as the evidence showed that they did not stop or park the truck on the highway or fail to drive it off of the highway, but rather that the truck stopped of its own weight and that they could not immediately move it off of the highway. Authorities (2), supra; Snyder v. Murray, 17 S.W.2d 639. (4) Instruction 11-D (118), offered by the Shell defendants, submitting that if the Shell defendants were unable to remove the truck after it ceased to operate but used reasonable diligence in having it. Waldhier v. Hannibal & St. Joseph Railroad Co., 71 Mo. 514; Buffington v. The Atlantic & Pacific Railroad Co., 64 Mo. 246. (5) As against the Shell defendants, the petition specifically alleged certain acts of negligence. Such assignments take precedence over any general allegations of negligence which the petition might be construed to contain; and the issues are confined to such specific assignments. State ex rel. Anderson v. Hostetter, 140 S.W.2d 21. (6) Plaintiff's Instruction P-2 was broader than the petition and permitted the jury to find a verdict for plaintiff and against the Shell defendants upon grounds of negligence not pleaded; and, as the instruction is broader than the petition, the verdict cannot stand. Gandy v. St. Louis-S. F. Railroad Co., 44 S.W.2d 634; State ex rel. Central Coal & Coke Co. v. Ellison, 195 S.W. 722, 270 Mo. 645; Kitchen v. Schlueter Mfg. Co., 20 S.W.2d 676; Krelitz v. Calcaterra, 33 S.W.2d 909. (7) Instructions P-2, P-3, and P-4 were erroneous in submitting to the jury that "if you find that at the time of said accident the said Ora A. Brinkley was exercising the highest degree of care for his own safety," as such did not require the finding of any specific facts but gave the jury a roving commission. Shields v. Keller, 153 S.W.2d 60. (8) Instruction P-2 authorized a recovery against the Shell defendants if the weather and atmospheric conditions rendered the use of the highway dangerous, or if such conditions concurred with the negligence of the Biscuit Company defendants, and caused Brinkley's death. Hopkins v. Highland Dairy Farm, 159 S.W.2d 254; Authorities (11), post. (9) The evidence that no lights had been put out on the highway by the drivers of the defendants' trucks was inadmissible and defendants' objections to such evidence should have been sustained. Sec. 8385, R. S. 1939. (10) Instruction P-5 referred the jury to the pleadings for the issues and without directing the jury's attention to the instructions on contributory negligence offered by defendants, or without hypothesizing any facts constituting contributory negligence, and such was erroneous. McCaslin v. Mullins, 17 S.W.2d 684. (11) The special demurrers to the evidence offered by the Shell defendants to the effect that if the Shell defendant were guilty of any negligence they were not liable as the acts of the Biscuit Company defendants and of Brinkley were an intervening efficient cause of the collision, and there was no casual connection between the acts of the Shell defendants and the death of Brinkley. Krelitz v. Calcaterra, 33 S.W.2d 909; Vassia v. Highland Dairy Farms, 104 S.W.2d 686; DeMoss v. Kansas City Railway, 246 S.W. 566, 296 Mo. 526; Snyder v. Murray, 17 S.W.2d 639.

Finch & Finch and R. Kip Briney for United Biscuit Company of America and James Francis McDaniel, appellants.

(1) Where the evidence furnishes no substantial support to plaintiff's allegations of defendant's negligence, there remains nothing to try and it is then proper to instruct the jury to find for defendant. Hyde v. Mo. Pac. Ry. Co., 110 Mo. 272; Joslyn v. Chicago, M. & St. P. Ry. Co., 319 Mo. 250, 3 S.W.2d 352; Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 311; Snowwhite v. Met. Life Ins. Co. 344 Mo. 705, 127 S.W.2d 718. (2) The court ought not to submit to the jury a case unless substantial evidence of defendants' negligence is offered, as the "scintilla rule" does not obtain in Missouri. William v. Railroad Co., 257 Mo. 87; Wallingford v. Terminal Railroad Assn., 337 Mo. 1147, 88 S.W.2d 361; Van Raalte v. Graff, 299 Mo. l. c. 526, 253 S.W. 220. (3) Contradictory testimony of a single witness, relied on to prove essential facts, does not warrant submission of the question to the jury, absent explanation. Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Swain v. Anders, 140 S.W.2d 730; Stoll v. First Natl. Bank, 234 Mo.App. 364, 132 S.W.2d 644. (4) It is error to submit to the jury any issue which can only be determined by speculation or conjecture. Joslyn v. Chicago, M. & St. P. Ry. Co., 3 S.W.2d 352; Boeckmann v. Valier & Spies Milling Co., 199 S.W. 457; Lampe v. Franklin-American Trust Co., 96 S.W.2d 710. (5) Where the uncontradicted evidence shows the deceased person to be guilty of contributory negligence as a matter of law, it is the duty of the court to so declare by sustaining a demurrer and directing a verdict for the defendant. Kelsay v. Mo. Pac. Ry. Co., 129 Mo. 362; Inman v. Walter Freund Bread Co., 332 Mo. 461, 58 S.W.2d 477; Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621. (6) Instruction P-1, given for plaintiff, was erroneous: (a) Because it failed to submit to the jury the question of defendants' negligence when the defendants were not charged with acts constituting negligence per se or the violation of a positive rule of law, and where the facts were not conceded. Lauderman v. Carmin, 255 Mo. 62; Mangram v. Railroad Co., 183 Mo. 119; Ducoulombier v. Baldwin, 101 S.W.2d 96; Roberts v. Kansas City Ry. Co., 204 Mo.App. 586, 228 S.W. 902; Stewart v. St. Louis Pub. Serv. Co., 75 S.W.2d 634; State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984; Trusty on "Constructing and Reviewing Instructions," p. 59. (b) Because it is broader than the petition and submitted to the jury charges of negligence not alleged therein. State ex rel. Anderson v. Hostetter, 140 S.W.2d 21; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; Kitchen v. Schlueter Mfg. Co., 323 Mo. 1179, 20 S.W.2d 676; Gandy v. St. Louis-S. F. Ry. Co., 329 Mo. 458, 44 S.W.2d 634; Krelitz v. Calcaterra, 33 S.W.2d 909. (c) Because it submitted hypothesized facts without any evidence to support them. Allen v. Mo. Pac. Ry. Co., 294 S.W. 80; Grosvener v. N. Y. Central Ry. Co., 343 Mo. 611, 123 S.W.2d 173; Rishel v. K. C. Pub. Serv. Co., 129 S.W.2d 851. (d) Because it placed on the Biscuit Company and its driver a duty to warn, without requiring the jury to find that the driver either had the opportunity or was charged with the duty so to do. (e) Because it is repetitious, confusing and misleading. Hopkins v. Highland Dairy Farms Co., 159 S.W.2d 255; Freeman v. Berberich, 60 S.W.2d 393. (7) Instructions numbered P-4 and P-5, given by the plaintiff, were erroneous, because they were confusing and misleading in this: (a) That they, in effect, gave the jury a roving commission to find for the plaintiff unless the jury found that her husband was not negligent. Freeman v. Berberich, 60 S.W.2d 393. (b) Because of the use of the terms "one of the proximate causes," "the only proximate cause" and "a proximate cause" without defining the terms. Mitchell v. Violette, 203 S.W. 218; Turnbow v. Dunham, 197 S.W. 103; Montgomery v. Railroad Co., 181 Mo. 508; Graham v. St. L., Red Bud, Chester, etc., Co., 147 S.W.2d 205; Hopkins v. Highland Dairy Farms Co., 159 S.W.2d 255.

Homer F. Williams and C. A. Powell for respondent.

(1) It is negligence to stop one's automobile on the highway so close to another car already stopped on the highway, at night, and in bad weather that an automobile approaching does not have room nor time to safely pass between such two stopped and parked automobiles; it is negligence, especially at night and in bad weather, to stop an automobile on the paved portion of the highway; and it is negligence to fail to warn one approaching of the danger created by stopping one's automobile on the highway near another automobile already stopped and parked on said highway. Smith v Producers Cold Storage Co., 128 S.W.2d 299; 42 C. J., p. 1007, secs. 734, 736; Snyder v. Murray, 17 S.W.2d 639, 223 Mo.App. 671; Bradley v. Clarke, 293 S.W. 1082, 219 Ky. 438; Goodwin v. Theriot, 165 So. 342; Cooper v. Teter, 15 S.E.2d 152. (2) It is negligence to stop and park an automobile with its right side not as near the right hand side of the highway as practicable; it is negligence to not have a tail light or other light upon the rear of an automobile...