Cheatham v. Chartrau

• Decision Date: 06 January 1944
• Citation: 176 S.W.2d 865,237 Mo.App. 793
• Parties: Viola Cheatham, Respondent, v. Everett Chartrau, Appellant
• Court: Missouri Court of Appeals

176 S.W.2d 865

237 Mo.App. 793

Viola Cheatham, Respondent, v. Everett Chartrau, Appellant

Court of Appeals of Missouri, Springfield District

January 6, 1944

Appeal from the Circuit Court of New Madrid County; Hon. Louis H Schult, Judge.

Affirmed.

R F. Baynes and Harry H. Bock for appellant.

(1) The court erred in admitting incompetent, irrelevant and immaterial evidence offered by the plaintiff. [a] Evidence of witnesses to the effect they might have smelled intoxicating liquor on the breath of someone, is wholly incompetent, as well as the testimony of certain witnesses that they smelled something but did not know what it was or where it came from also the testimony of certain witnesses to the effect that appellant had the appearance of an intoxicated man. All of this testimony is highly prejudicial and constitutes reversible error. Willis v. Kansas City Terminal Ry. Co., 199 S.W. 736. [b] And the fact the court in some instances sustained objection, yet the withdrawing of such prejudicial testimony from the consideration of the jury, did not destroy the effect thereof. State v. Benson, 142 S.W.2d 52; Wojtylak v. Coal Co., 188 Mo. 260. (2) The court erred in refusing defendant's requested instruction in the nature of a demurrer to the evidence at the close of the whole case. The evidence all shows that plaintiff could have, by merely suggesting to the driver of the car she was riding in, prevented this accident. The evidence all shows that she saw defendant in a position of imminent peril in ample time to have suggested to the driver of the car in which she was, to pull slightly to the right, which would have avoided the accident, but that she refused to do so. By her own acts and conduct in that respect, she is not entitled to recover as a matter of law, and the court should have given defendant's requested instruction in the nature of a demurrer to the evidence. (3) The court erred in the instructions given at the request of plaintiff. [a] These instructions wholly ignored the defense in this case, and wholly ignored the duty the plaintiff owed to defendant, to prevent this accident if within her power which she, under the evidence, refused to do. [b] The court erred in giving to the jury plaintiff's Instruction No. 3, because the instruction erroneously refers the jury to the answer for the facts constituting contributory negligence, without setting any facts out to the jury. Ward v. City of Portageville, 106 S.W.2d 497; Lally v. Morris, 26 S.W.2d 52; Bullmore v. Beeler, 33 S.W.2d 161; Phillips v. Thompson, 225 Mo.App. 859, 35 S.W.2d 382; Jacobson v. Graham Ship by Truck Co., 61 S.W.2d 401; Dietderick v. Mo. Iron & Metal Co., 222 Mo.App. 740, 9 S.W.2d 824; Elders v. Mo. Pac. Ry. Co., 280 S.W. 1048. (4) The court committed error in refusing to give the only instruction offered by defendant. This instruction properly declared the law and the duty of plaintiff before being entitled to recover, and the court should have given said instruction. The refusal thereof constitutes reversible error. Adams v. Le Bow, 160 S.W.2d 826. (5) [a] The verdict of the jury is excessive. Sachse v. Highland Dairy Farms Co., 45 S.W.2d 934; Johnston v. City of St. Louis, 138 S.W.2d 666; Briscoe v. Met. Street Ry. Co., 220 Mo. 104. It is a generally accepted doctrine that each case must stand on its own footing. However, when cases are similar there should be a reasonable uniformity as to the amount of the verdicts in the various cases. Lynch v. Baldwin, 117 S.W.2d 273; Philibert v. Benjamin Ansehl Co., 119 S.W.2d 797. And the fact the courts have held in the cases above cited, that $ 5000 would be excessive for the injuries respondent received, those cases should be followed. Johnston v. City of St. Louis, supra. The verdict in this case being so glaringly unauthorized in amount, a remittitur could not cure the error and the verdict should be set aside. Cook v. Globe Printing Co., 227 Mo. 471; Bente v. Finley, 83 S.W.2d 155. [b] There was no evidence in the case of permanent injury, "To recover damages for permanent injuries, the permanency of the injuries must be shown with reasonable certainty -- mere conjecture or likelihood, or even a probability of such injuries will not sustain the allowance of damage therefor." Hence, error was committed by the court in overruling appellant's objection to the argument of respondent's counsel to the jury, that respondent's injuries were permanent, there being no evidence whatever of this fact. State v. Shane, 165 S.W.2d 428; Weiner v. St. Louis Public Service Co., 87 S.W.2d 191; Plank v. R. J. Brown Petroleum Co., 61 S.W.2d 328. (6) The court erred in refusing to rebuke the counsel for plaintiff in persisting to ask the witnesses if they could smell intoxicating liquor on the breath of the defendant or could smell intoxicating liquor when near the defendant, and in refusing to sustain appellant's motion for a mistrial, as requested, when plaintiff's counsel persisted in attempting to elicit evidence from various witnesses to the effect that defendant had been drinking intoxicating liquor. McClendon v. Bank of Advance, 174 S.W. 203.

Ward & Reeves for respondent.

It is generally held in negligence cases that it is competent to show the driver of a car was drinking or was under the influence of liquor, or that he had the smell of liquor on his breath. 9 Blashfield's Cyc. of Automobile Law & Practice, secs. 6185-6186. The evidence shows that plaintiff's husband was a good, experienced driver having driven automobiles for twenty-five years, and plaintiff had had only a slight experience in driving automobiles. She was not guilty of any negligence at all in relying on her husband in the emergency which confronted them, and especially is this true when it was impossible for either the plaintiff or her husband to determine until too late whether the defendant would proceed in the middle of the west half of the highway or would turn to his right or left before the collision became imminent. (3) All that was required to be submitted in the plaintiff's instructions was to predicate all the essential facts necessary to entitle the plaintiff to recover, and it was not essential or necessary to set out in plaintiff's instructions the defenses relied upon by the defendant. Perry v. Railroad Co., 340 Mo. 1052; Jones v. Railroad Co., 343 Mo. 1104; State ex rel. Ins. Co. v. Cox, 307 Mo. 194; State ex rel. Jenkins v. Trimble, 291 Mo. 227. (4) [a] As to plaintiff's Instruction No. 3, the first paragraph of it is a mere definition and explanation of the meaning of ordinary care and does not purport to submit facts, nor does it refer the jury to the answer for the facts. It is a mere counter-part of defendant's Instruction No. D-1. As to the last paragraph of the instruction, it merely deals with the burden of proof and does not there refer the jury to the pleadings to obtain the facts. It has been held that a reference to the pleadings in a burden of proof instruction is not erroneous. Sherwood v. Ry. Co., 132 Mo. 339; Bradford v. Ry. Co., 136 Mo.App. 705; Carpenter v. Burmeister, 217 Mo.App. 104; Patton v. Eveker, 232 S.W. 762. [b] Instruction No. 3 does not refer the jury to the answer in order to determine the facts, but it merely tells the jury what issues are raised in the answer. A recognized authority on Missouri instructions sets out many burden of proof instructions referring to the issue of contributory negligence pleaded in the defendant's answer, and many of them are nearly exactly in the form of the one given as plaintiff's Instruction No. 3 in this case. 2 Raymond, Missouri Instructions, secs. 3281-3290. (5) There are two other good reasons why said Instruction No. 3, though erroneous, was not harmful and did not constitute prejudicial error in this case. [a] There was no substantial evidence to show any negligent act or negligent failure to act or to warn on the part of the plaintiff, who was a guest in the automobile. There was no duty resting on plaintiff to warn driver, because all the evidence shows driver was aware of the near approach of the truck, and any warning would have been useless under the circumstances and would probably have confused the driver rather than assisted him in avoiding the collision. Sherwood v. Ry. Co., supra; O'Hare v. Justin T. Flint Laundry & Dry Cleaning Co., 170 S.W.2d 95; Mahaney v. K.C. Rys. Co., 254 S.W. 16; Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21. [b] There was no causal connection shown between any alleged negligent act or omission of plaintiff and the collision. Therefore, the plaintiff's negligence, if any, did not contribute directly to her injury, nor could it have been the proximate cause of her injury. Whatever might be said of the negligence of the driver, there was no evidence to show negligence on the part of the plaintiff, and the burden of proof was on the defendant to show such negligence. Buehler v. Festus Merc. Co., 343 Mo. 139, 119 S.W.2d 961; Rosenstein v. Lewis Automobile Co., 34 S.W.2d 1023; Davis v. City Light & Traction Co., 204 Mo.App. 174. (6) [a] The refusal of appellant's instruction on contributory negligence was not error because there was no evidence of contributory negligence in this case. Authorities supra, under (5). [b] The instruction offered by appellant was also erroneous and properly refused because it did not leave it to the jury to determine whether plaintiff's conduct amounted to negligence. Smith v. Railroad, 9 S.W.2d 939; Boland v. Railroad, 284 S.W. 141. (7) The verdict for $ 5000 met the approval of the trial court and is a very modest amount for the injuries sustained. Sloan v. Farmer, 168 S.W.2d 467. (8) Appellant's assignment (5) [a] is wholly insufficient for a review by this court, because he does not set out anywhere in his...