Brisboise v. Kansas City Public Service Co.

• Decision Date: 10 June 1957
• Docket Number: No. 45365,45365
• Citation: 303 S.W.2d 619
• Parties: Aubrey F. BRISBOISE, Appellant, v. KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, Respondent.
• Court: Missouri Supreme Court

Page 619

303 S.W.2d 619

Aubrey F. BRISBOISE, Appellant, v. KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, Respondent.

No. 45365.

Supreme Court of Missouri, En Banc.

June 10, 1957.

Rehearing Denied July 8, 1957.

Clarence C. Chilcott and Preston Forsee, Kansas City, for appellant.

E. E. (Tom) Thompson and Sam Mandell, Kansas City, Attorneys for respondent Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel.

BOHLING, Commissioner.

Aubrey F. Brisboise sued the Kansas City Public Service Company, a corporation, and seeks $100,000 actual and $100,000 punitive damages for the consequential loss of his wife's, Pearl Brisboise's consortium under circumstances hereinafter detailed. A second amended petition was filed. Defendant filed a 'motion to dismiss' on the ground said petition failed to state a claim; and a 'motion, in the alternative, to strike' portions of said petition. Thereafter, the court dismissed said petition on the ground it failed to state a claim upon which relief could be granted and entered judgment for defendant for costs. Plaintiff has appealed.

The injuries to plaintiff's wife were the result of fright, shock, terror and alarm; and the essential issue presented is whether the facts alleged charged defendant with willful, wanton and reckless acts and conduct authorizing a recovery for fright, etc., and the alleged sequelae of physical injuries in the absence of contemporaneous bodily injury to plaintiff's wife.

Following allegations that defendant was a common carrier corporation in Kansas City, Missouri, plaintiff alleged that on October 29, 1951, one of defendant's streetcars collided with a motor vehicle his wife was operating and injured her as more particularly set forth in the petition.

Under the allegations of said petition (p3) plaintiff's wife was operating a motor vehicle northbound on Main street, intending to enter the Capitol garage, located on the west side of Main street and south of 13th street. She operated the automobile across defendant's southbound streetcar track toward the entrance of the garage, but was unable to enter as another automobile ahead of her blocked said entrance and she was obliged to stop upon said streetcar track. It is alleged that another motorist was immediately to the rear of her automobile waiting to enter said garage; that when plaintiff's wife stopped upon said streetcar track, one of defendant's streetcars was stopped north of 13th street, approximately 150 feet north of her, awaiting a change in the traffic light to proceed southwardly; that said automobiles remained in their respective positions, and that after said traffic light changed 'defendant started and operated said streetcar across said 13th street toward plaintiff in a threatening manner, and sounded or rang the bell or gong attached thereto, loudly and incessantly, and accelerated and slackened the speed thereof, and caused a loud and hissing sound until it arrived within a very short distance of plaintiff's said wife, and thereby so frightened and terrified plaintiff's said wife and so put her in fear of her life or great bodily injury that she attempted to back said motor vehicle off of said streetcar track in order to operate it around to the east of said streetcar, and thereby clear said streetcar track, and that every time said plaintiff's said wife backed her said motor vehicle in order to obtain space to turn the same, defendant moved said streetcar forward upon said streetcar track onto the space plaintiff's said wife intended to use to turn said motor vehicle, and thereby prevented plaintiff's said wife from operating said motor vehicle off said streetcar track; that said defendant continued to cause said streetcar to advance upon plaintiff's said wife in said threatening manner and finally caused and brought about a collision between said streetcar and said motor vehicle, and between said motor vehicle and the motor vehicle immediately following it, at all of which times plaintiff's said wife was in a helpless and inextricable position, and that the action and conduct of defendant so alarmed, shocked, terrified and frightened plaintiff's said wife, that as a direct and proximate result thereof, she then and there fainted and suffered an injury to her brain, resulting in the total paralysis of her left side, as a direct result of aforesaid fright, shock, terror and alarm.'

Plaintiff further alleged that 'said actions and conduct of the defendant was a willful, wanton, reckless and inhuman trespass against plaintiff's said wife and motor vehicle, intentionally and knowingly inflicted with a reckless disregard and indifference to the life, limb, rights and safety of plaintiff's said wife' (p4); that they were 'oppressive, malicious, and wholly unjustified'; that as a direct result thereof plaintiff's wife 'was put in great mental distress, fear, apprehension, and as a direct result of such mental distress, fear and apprehension she was grievously and permanently injured' (p5), suffering an occlusion, laceration, or rupture of the blood vessels of her brain, convulsions, unconsciousness, paralysis, constipation, nausea, depression, melancholia, nervousness, emotional instability, impaired power of locomotion, loss of sensation, inability to control her left side, arms and legs, and other conditions (paragraphs5-7).

In this case there is no charge of a battery or a bodily injury resulting other than from alleged alarm, shock, terror or fright. The burden of plaintiff's alleged claim is that the action and conduct of the motorman so alarmed, shocked, terrified and frightened plaintiff's wife that the alleged physical injuries resulted therefrom.

I. Plaintiff argues that the alleged acts and conduct of the defendant, by and through its motorman, constituted a willful, wanton, reckless, oppressive and intentional tort. Defendant, not questioning liability for willful et cetera acts occasioning mental distress, contends the factual allegations of plaintiff's petition do not so charge, and characterizing them as such in the petition does not make them so.

We held in Therrien v. Mercantile-Commerce Bk. & Trust Co., Banc, 360 Mo. 149, 227 S.W.2d 708, 711[3-9], in ruling a petition challenged in the trial court, precluding any issue of entrapment, for failure to state facts invoking a principle of substantive law entitling the pleader to relief, that all properly pleaded facts and inferences fairly and reasonably to be drawn therefrom are taken as true, but neither conclusions of law nor conclusions of the pleader on the facts are admitted by the motion. Sections 509.040, 509.050, 509.250, 509.300, RSMo 1949, V.A.M.S.; Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596, 598; Bealmear v. Beeson, Mo.App., 263 S.W.2d 472, 476[3, 4].

Many cases are cited in support of plaintiff's points. This is not a case involving some independent tort as assault, battery, false imprisonment, malicious prosecution, a trespass on land, an invasion of the right of privacy, a dead body, or an act committed with the intent of causing mental distress. It would extend this opinion beyond reasonable bounds to discuss all the authorities cited by plaintiff. Under our Rule 1.08(a)(3), 42 V.A.M.S. '* * * if more than three authorities are cited in support of a point made, the three authorities principally relied on shall be cited first.' We take up cases stressed by plaintiff.

In McClanahan v. St. Louis Pub. Serv. Co., 363 Mo. 500, 251 S.W.2d 704, 705 (same case, Mo.App., 242 S.W.2d 265), a ten-year old boy was clinging to the handholds on the outside of a double exit door of one of defendant's streetcars, with his toes on "that little ledge by the door," and was in a precarious position, fraught with perilous possibilities. The motorman motioned several times for the boy to get off and upon his failure to do so accelerated the speed of and violently jerked the streetcar causing plaintiff to fall and be injured (242 S.W.2d 267). We considered that the facts favorable to plaintiff charged the motorman with knowledge of the boy's precarious position; that accelerating the speed and causing the streetcar to violently jerk involved an unreasonable risk of bodily harm to the small boy, and, hence, plaintiff might state a claim for willful, wanton and reckless conduct; but that a case was not made under the humanitarian doctrine because after plaintiff was first in imminent peril defendant did not have time thereafter to avert the casualty. 251 S.W.2d 708[6, 7].

In Smith v. Siedhoff, Mo., 209 S.W.2d 233, 236[3-8], plaintiff's instructions submitted primary and humanitarian negligence on the part of defendant; but plaintiff failed to make a submissible case on humanitarian negligence and the case was remanded for new trial.

Plaintiff states that under the above two cases he cannot submit 'his case under the humanitarian doctrine' for a failure to stop, or to warn, or to keep a lookout, or to apply the brakes because the operator of the streetcar did stop, was sounding the bell or gong loudly and incessantly, was maintaining a lookout and knew of plaintiff's situation, was applying and releasing brakes intermittently, and that the only available ground for recovery is willful, wanton and reckless conduct.

In Reel v. Consolidated Inv. Co., Mo., 236 S.W. 43, 46 et seq., plaintiff was injured by the fall of a passenger elevator. There was evidence that a city inspector had twice previously notified defendant to put in new cables and had been promised new cables would be supplied. Carriers of passengers by elevator are required to exercise the highest degree of care and exercise the utmost care in the choice of machinery and applicances. The case was submitted under the res ipsa loquitur doctrine. The court considered the evidence showed defendant 'knew and appreciated the imminent danger necessarily incident' to the continued use of the elevator and the failure to replace the cables for...