Brown v. Payne

• Decision Date: 11 January 1954
• Docket Number: No. 2,No. 43401,43401,2
• Citation: 264 S.W.2d 341
• Parties: BROWN v. PAYNE
• Court: Missouri Supreme Court

Page 341

264 S.W.2d 341

BROWN v. PAYNE.

No. 43401.

Supreme Court of Missouri, Division No. 2.

Jan. 11, 1954.

Motion for Rehearing or to Transfer to Court En Banc Denied

Feb. 8, 1954.

Russell N. Pickett, Eugene E. Andereck, Phil Hauck, Pickett, Pickett & Andereck, Trenton, for appellant.

Kelso Journey, Clinton, Herbert S. Brown, Trenton, for respondent.

BARRETT, Commissioner.

In this action against Fred S. Payne for actual and punitive damages a jury awarded Mrs. Opal Brown $10,000 actual damages as compensation for her personal injuries.

The circumstances giving rise to the action were that between six and six-thirty o'clock on June 1, 1951, Mrs. Brown, with her husband as a passenger, was driving a pickup truck east on blacktop Highway 35 about one mile from Clinton. Mrs. Brown intended to turn left off of the highway onto an intersecting gravel road. It was a clear day, the sun was shining and, while the road was heavily traveled, visibility from the west was clear for a quarter of a mile. About 600 feet west of the intersection, Mr. Brown said a quarter of a mile, Mrs. Brown, traveling in the right-hand lane of the highway at a speed of about 25 miles an hour, signaled her intention to turn left onto the gravel road. The appellant, Payne, operating his pickup truck in the same direction at a speed of 45 to 50 miles an hour, according to him, saw Mrs. Brown's signal. Mrs. Brown was watching Payne's truck in her rear vision mirror and when she was about 125 feet from the intersection saw that his truck was traveling at a speed of approximately 60 miles an hour and weaving across the highway and she withdrew her arm and the left turn signal, pulled to the right with the right truck wheels on the 3 to 4 foot shoulder, and began to slow down before reaching the intersection. As she did so the front of Payne's truck struck the left rear end of the truck Mrs. Brown was driving and knocked it down the road past the intersection. The skid marks from Payne's truck measured 75 feet.

Owen May was riding with Payne. They had left Trenton the day before and stayed in Kansas City that night. Payne was going to Arkansas and took May along on the trip 'trying to get him sobered up.' Payne says that they had had a few beers in Kansas City the night before, a beer in Higginsville the morning of June 1st and two beers in Clinton in the midafternoon but that neither of them were drunk. A Clinton businessman, a deputy sheriff, a highway patrolman and the Browns said that both Payne and May were drunk and that May 'had passed out' in the truck. Payne engaged in an argument with the deputy sheriff, both Payne and May were arrested by the officers and spent the night in the Henry County jail and the following day Payne pled guilty to resisting an officer, and careless and reckless driving 'while intoxicated' and paid a fine of $125.

Mrs. Brown was employed as the production manager in the Bush Hatcheries in Clinton and the truck she was driving, on her way home, belonged to the Bush Hatcheries. Payne's principal defense to the action was that Mrs. Brown was not injured and in support of his claim offered to prove, and did prove, upon the cross-examination of Mr. Bush and Mrs. Brown that the Bush Hatchery carried workmen's compensation insurance but that Mrs. Brown, as an employee, had not filed a claim for compensation. The trial court, although doubtful as to the admissibility of the evidence, permitted its introduction and upon the court's own motion instructed the jury 'that the fact, if it be a fact plaintiff made no claim for Workmen's Compensation is no defense to this suit but evidence thereof was admitted only to shed light, if it does, on the case as a whole.' Payne, upon this appeal, urges that the evidence was probative of the fact that Mrs. Brown was not injured, that the jury should have been permitted to draw the reasonable inference that she was not injured from the fact of failure to make a claim for compensation and that the court's instruction was an unwarranted comment on the evidence and, in effect, improperly withdrew this admissible evidence from the jury's consideration. It is not necessary to say whether the evidence was admissible for any purpose, Reiling v. Russell, 345 Mo. 517, 522-523, 134 S.W.2d 33, 36, it was collateral and did not constitute an admission that she was not injured in the collision, Hilton v. Thompson, 360 Mo. 177, 191-192, 227 S.W.2d 675, 681-682, and, we might add, does not constitute a defense to this action. V.A.M.S. Sec. 287.150; Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913. The instruction given by the court is cautionary and does not direct the jury that the evidence could not be considered upon the question of whether Mrs. Brown was injured. If the evidence was admissible for the purpose of showing no injury, the appellant offered and the trial court gave two instructions, one of which plainly told the jury that 'before plaintiff may recover any sum of money from defendant, you must find that she has suffered injuries or damages as mentioned in other instructions of this court.' So the jury was not precluded from considering the evidence and drawing inferences from it, and in these circumstances the instruction was not prejudicially erroneous.

From Payne's testimony the jury could have found Mrs. Brown guilty of contributory negligence in several particulars, among others that she stopped the truck immediately in front of him in the right traffic lane and not as close to the right-hand side of the highway as practicable. He insists that there was evidence to support another theory, that she did not stop as he claimed, but was moving as she testified, and that in so doing 'she operated her vehicle without keeping same as close to the right-hand side of the highway as practicable.' The defendant contends that the court prejudicially erred in refusing his proffered instruction E hypothesizing this theory. The parties in presenting their contrasting arguments point to the applicable 'rules of the road', particularly V.A.M.S., Sec. 304.020(2)(10), and the court's interpretation of the rules and debate whether the instruction is applicable to the facts. It is assumed that there was an evidentiary basis for the instruction, but it does not follow, upon this record that the court prejudicially erred in refusing it. The court gave five instructions upon the subject of Mrs. Brown's contributory negligence. As indicated, there was one which hypothesized her stopping in the path of Payne's truck 'without placing the right-hand side of her vehicle as near to the right-hand side of the highway as practicable.' Another instruction submitted her failure to maintain a proper lookout and failure to keep the truck under reasonable and proper control. Still another hypothesized her signaling to turn left and then failing to do so and stopping in the path of Payne's truck. Another instruction submitted her 'failing to operate her vehicle as close as practicable to the center line of the highway along which she was proceeding before turning.' Then there was an instruction which submitted Mrs. Brown's contributory negligence in general, 'and if you further find and believe from the evidence and from other instructions given you by this court that the plaintiff's own negligence contributed to her injuries, if any, then your verdict must be for the defendant and against the plaintiff.' All in all the jury must have understood that they could find Mrs. Brown guilty of contributory negligence if they found that she either stopped or drove the truck and failed to keep it 'as close to the right-hand side of the highway as practicable'. V.A.M.S. Sec. 304.020. Refused instruction E did not hypothesize the facts and circumstances relied upon as constituting a violation of this rule of the road but abstractly submitted 'in operating her vehicle without keeping same as close to the right-hand side of the highway as practicable.' The general instruction was broader than and embraced the matters hypothesized in the refused instruction, Young v. City of Farmington, Mo.Sup., 196 S.W.2d 124, and, in view of all the instructions on the subject of contributory negligence, it may not be said that the refusal of instruction E constituted prejudicial error. Edwards v. Woods, 342 Mo. 1097, 119 S.W.2d 359, 361.

As indicated, in addition to Payne's primary negligence in operating his truck, Mrs. Brown alleged that the acts set forth in her petition 'were done maliciously and wantonly' and for that reason she asked for $25,000 punitive damages. It is now insisted that the court erred in submitting the case to the jury upon two inconsistent theories, (a) primary negligence and (b) wilful and wanton misconduct, particularly after the defendant made a jury question of Mrs. Brown's contributory negligence, which would not constitute a defense to wilful and wanton misconduct. In this connection it is urged that the court erred in refusing to dismiss the plaintiff's petition upon the ground that it failed to state a cause of action, that the court erred in instructing the jury upon the subject of recovery of punitive damages for wilful misconduct, and in denying his motions for a directed verdict upon that issue. It may be noted in passing that while the statute, V.A.M.S. Sec. 509.200, requires that a claim for punitive damages be separately stated, there is no requirement that a claim for such damages be stated in a separate count. Baker v. Atkins, Mo.App., 258 S.W.2d 16, 23. The appellant, perhaps for obvious reasons, does not contend that there was no evidentiary basis for the submission of wanton misconduct and punitive damages in this case. State ex rel. Kurn v. Hughes, 348 Mo. 177, 153 S.W.2d. 46. In any event, it is not necessary to consider whether the court in fact submitted the case on two inconsistent theories, primary negligence and compensatory damages and wilful, wanton misconduct and punitive...