Cantwell v. Cremins

• Decision Date: 03 April 1941
• Docket Number: 37100
• Parties: Claude K. Cantwell, Appellant, v. T. F. Cremins and Massachusetts Bonding & Insurance Company, a Corporation
• Court: Missouri Supreme Court

149 S.W.2d 343

347 Mo. 836

Claude K. Cantwell, Appellant, v. T. F. Cremins and Massachusetts Bonding & Insurance Company, a Corporation

No. 37100

Supreme Court of Missouri

April 3, 1941

Appeal from Circuit Court of City of St. Louis; Hon. Frank C O'Malley, Judge.

Reversed and remanded (with directions).

Wilbur C. Schwartz, Thomas B. Curtis and Orville Richardson for appellant.

(1) It would have been error to incorporate in the instructions the unpleaded, unproven facts which Cremins adopted after verdict without support from either plaintiff's or defendants' evidence. Shaw v. Fulkerson, 339 Mo 310, 96 S.W.2d 495; Gately v. St. L.-S. F. Ry. Co., 332 Mo. 1, 56 S.W.2d 54; Gundelach v. Compagnie Generale Transatlantique, 41 S.W.2d 1. (a) Had these instructions submitted this new theory of "excuse," they would have gone outside of the entire record and would have erroneously invited a verdict based upon conjecture of speculation. State ex rel. Banks v. Hostetter, 344 Mo. 155, 125 S.W.2d 835. (b) Defendants may not charge the trial court with error in the refusal to submit a theory different than that adopted during trial. Kincaid v Burt, 29 S.W.2d 97; Stoll v. First Natl. Bank, 134 S.W.2d 97. (c) Defendants are bound by the personal sworn testimony of defendant Cremins and cannot claim a benefit from any testimony contradicting that testimony and contrary to Cremins' theory. Lolordo v. Lacy, 337 Mo. 1097, 88 S.W.2d 353; Rucker v. Alton Ry. Co., 343 Mo. 929, 123 S.W.2d 24; Elkin v. St. Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600. (d) Finally, it was not necessary for plaintiff to submit in his instructions any excuse now claimed by Cremins for having been guilty of negligence. Such a theory of excuse was not pleaded and could be ignored. Demaray v. M.-K.-T. Ry. Co., 330 Mo. 589, 50 S.W.2d 127. Excuses or theories not rising to the dignity of affirmative defenses or issues need not be submitted by the other litigant. Gately v. St. L.-S. F. Ry. Co., 332 Mo. 1, 56 S.W.2d 54; Stanton v. Jones, 332 Mo. 631, 59 S.W.2d 648; Bennette v. Hader, 337 Mo. 977, 87 S.W.2d 413; Sternkopt v. Cawein, 63 S.W.2d 443; Erxleben v. Kaster, 21 S.W.2d 195; Mundinger v. Sewell, 40 S.W.2d 530. A litigant is entitled to submit his theory of the case to the jury in a direct way without being restricted to the converse of any theory which the other litigant might have. State ex rel. Dunklin County v. McKay, 325 Mo. 1075, 30 S.W.2d 83; Doherty v. St. L. Butter Co., 339 Mo. 996, 98 S.W.2d 742; Alexander v. Wabash Ry. Co., 38 S.W.2d 545. (2) This was the Illinois law, so long as the issue of proximate cause was left open to the jury. Gourley v. C. & E. I. Ry. Co., 295 Ill.App. 160; Jeneary v. C. & I. Traction Co., 306 Ill. 92; Price v. Ill. Bell Tel. Co., 269 Ill.App. 581; Kenyon v. C. C. Ry. Co., 235 Ill. 406; Lerette v. Director Generale, 306 Ill. 348; L. S. & M. S. Ry. Co. v. Parker, 131 Ill. 557; Bunch v. McAllister, 266 Ill.App. 248; Schactrup v. Hensel, 295 Ill.App. 303; Amos v. Terminal Railroad Assn., 142 S.W.2d 787. (a) This is the Illinois rule, since Illinois courts have declared litigants negligent or contributorily negligent as a matter of law in numerous cases. Hill v. Illinois Term. Co., 100 S.W.2d 40; Schactrup v. Hensel, 295 Ill.App. 303; Bunch v. McAllister, 266 Ill.App. 248.

Hay & Flanagan and Robert W. Herr for T. F. Cremins; James J. Seeley for Massachusetts Bonding & Insurance Company.

(1) Issuable facts need not be shown by direct evidence, but may be arrived at by fair inference and the jury may draw all reasonable inferences and deductions from the evidence adduced. From all the evidence in this case the jury could have reasonably drawn a fair inference that the respondent Cremins may have had an excuse for being on the wrong side of the road just prior to and at the moment of impact, assuming he was so placed. Schanbacher v. Lucido Brothers Gro. Co., 93 S.W.2d 1076; Hulsey v. Tower Grove Quarry & Const. Co., 326 Mo. 194, 30 S.W. 1018; Rose v. Mo. Dist. Telegraph Co., 328 Mo. 1009, 43 S.W.2d 562. (2) Under the Illinois law the general rule is that the violation of a statute is not negligence per se, but only evidence of negligence to be considered by the jury along with all the other facts and circumstances in the case in determining whether a party was guilty of negligence; this determination by the jury is in addition to the determination of whether such negligence, if any, was the proximate cause of the accident. U.S. Brewing Co. v. Stoltenberg, 211 Ill. 531; Culver v. Harris, 211 Ill.App. 575; Miller v. Burch, 254 Ill.App. 387; Tuttle v. Checker Taxi Co., 274 Ill.App. 525; Peters v. Madigan, 262 Ill.App. 417; Burke v. Zwick, 299 Ill.App. 558; Carroll v. Krause, 295 Ill.App. 552; Sec. 806, R. S. 1929; Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053; Weeks v. A., T. & S. F. Ry. Co., 109 S.W.2d 374; Haton v. I. C. Ry. Co., 76 S.W.2d 127.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Appellant, Cantwell, filed this suit against respondents, T. F. Cremins and Massachusetts Bonding & Insurance Company, a Corporation, to recover damages to appellant's truck, alleged to have been sustained in a collision between the truck and a car driven by Cremins while engaged in discharging his duties as an agent and servant of the bonding company. Cremins filed a counterclaim in which he sought damages in the sum of $ 40,000 for personal injuries alleged to have been sustained in the same collision. At the close of all the evidence plaintiff dismissed his suit against Cremins without prejudice. The case was submitted to a jury on plaintiff's claim against the bonding company and Cremins' claim against plaintiff Cantwell. The jury returned a verdict in plaintiff's favor and against the bonding company in the sum of $ 750, and in plaintiff's favor and against the defendant Cremins on the latter's counterclaim. Each defendant filed a motion for new trial. These motions were sustained by the trial court. The reason given was that the trial court deemed instructions one and three, given at plaintiff's request, to be erroneous, whereupon plaintiff appealed.

Respondents have not briefed any other point to sustain the action of the trial court. We are therefore confined to a consideration of the question of whether instructions one and three were erroneous. The correctness of the instructions must be determined in the light of the issues presented at the trial. It will therefore be necessary to briefly refer to the pleadings and the evidence. The collision occurred on July 13, 1937, at about 10:00 A. M., at a point north of Cairo, Illinois, on highway number fifty-one. The weather was fair and the pavement dry. The truck was traveling north and was being driven by Glen Gray, an employe of plaintiff Cantwell. The defendant Cremins was traveling south in a 1937, Plymouth. Plaintiff in his petition charged as an act of negligence that the defendant was driving his car on the left or east side of the roadway. The defendant Cremins in his counterclaim charged that the truck was on the wrong or west side of the roadway. Plaintiff and defendant, Cremins, each pleaded a statute of Illinois which provided as follows:

"'Drivers of vehicles proceeding in opposite directions, except as provided in Sec. 151 (ante), shall pass each other to the right and upon roadways having width for not more than one line of traffic in each direction, each driver shall give to the other at least one-half of the main traveled portion of the roadway as nearly as possible.'"

At the point of collision the roadway was straight and continued so for some distance both north and south. It was paved with brick for a width of eighteen feet and ten inches and a black line marked the center of the roadway. The evidence does not disclose that any other vehicle on the highway had any connection with the collision. The portion of instruction one which was deemed erroneous in substance informed the jury that under the Illinois law it was the duty of Cremins, when meeting plaintiff's truck, to drive his car on his own right-hand side of the highway, as nearly as possible, and give such truck one-half of the main traveled portion of the roadway, as nearly as possible, and if Cremins failed to do so he was negligent. The instruction further informed the jury in substance that if they found that such negligence, if any, on part of Cremins, directly caused the collision and damage, if any, to plaintiff's truck, and that plaintiff was in the exercise of ordinary care, then a verdict for plaintiff was authorized. Instruction number three concerned the counterclaim of Cremins. The fore part of this instruction is substantially the same as instruction number one wherein the jury was told that it was the duty of Cremins to drive on his right-hand side of the road and that if he failed to do so he was negligent. The instruction concluded, that if such negligence, if any, either directly and solely caused, or directly contributed to cause the collision, then Cremins could not recover on his counterclaim.

Respondents in their brief contend that the instructions are erroneous because they excluded from the consideration of the jury any possible excuse or reason Cremins may have had for being on the wrong side of the road. If the evidence justified any theory upon which Cremins could have been excused for being on the wrong side of the road the instructions would be subject to the criticism made. [See 45 C. J. 962, sec. 517.] This court so held in Collins v. Beckmann, 79 S.W.2d 1052, l. c. 1055 (2). In that case the party charged with negligence testified that he swerved to the left to avoid a collision. If a driver of a car is confronted with an emergency not of his own creation, (45 C....