Coats v. Old

• Decision Date: 14 December 1943
• Citation: 167 S.W.2d 652,237 Mo.App. 353
• Parties: Emalyne Coats, Respondent, v. Marvin B. Old, d/b/a Yellow Cab & Baggage Co., and Dewey Turner, Appellants
• Court: Kansas Court of Appeals

167 S.W.2d 652

237 Mo.App. 353

Emalyne Coats, Respondent, v. Marvin B. Old, d/b/a Yellow Cab & Baggage Co., and Dewey Turner, Appellants

Court of Appeals of Missouri, Kansas City

December 14, 1943

Appeal from Boone Circuit Court; Hon. W. M. Dinwiddie, Judge.

Affirmed.

Edwin C. Orr for respondent.

(1) The plaintiff's Instruction P-A was sufficient in every detail and the court did not commit error in giving that instruction. Crowley v. American Car & Foundry Co., 279 S.W. 212, 215-16; Morris v. Seitrich, 118 S.W.2d 46. (2) The respondent's (plaintiff's) Instruction P-C was a correct statement of the law and not reversible error. State ex rel. Berberich v. Haid et al. (Mo.), 64 S.W.2d 667; Quinn v. Berberich, 51 S.W.2d 153; State v. Richetti, 119 S.W.2d 330, 343; Leimkuehler v. Wessendorf, 323 Mo. 64, 18 S.W.2d 445; Cool v. Peterson, 189 Mo.App. 717, 175 S.W 244; Burgher v. Neidorp, 50 S.W.2d 174, 175; State ex rel. Burgher v. Trimble, 331 Mo. 748, 55 S.W.2d 442; McGrew v. Mo. Pac. Ry. Co., 109 Mo. 582 19 S.W. 53; Bourdoin v. Town of Trenton, 116 Mo 358, 22 S.W. 728. (3) The court did not err in giving plaintiff's Instruction P-D. That instruction is a correct statement of the law, and although general, is not erroneous. Hill v. Union E. L. & P. Co., 169 S.W. 345, 359; Laycock v. United Rys. Co. of St. Louis, 235 S.W. 91, 94; Miller v. Phenix Fire Ins. Co. of Paris, France, 9 S.W.2d 672, 673; Bishop v. Musick Plating Works, 3 S.W.2d 256, 260; Taylor v. Sesler, 113 S.W.2d 812, 816; Kemp v. Doe Run Lead Co., 57 S.W.2d 758, 762; Shinn v. Railroad, 248 Mo. 173, 154 S.W. 103; Peck v. W. F. Williamson Adv. Service, 68 S.W.2d 847, 851; Morris v. Kansas City Rys. Co., 223 S.W. 784, 785; Pieffer v. Schee, 107 S.W.2d 170; Trusty (Constructing and Reviewing Instructions), page 255 et seq. (4) The court did not commit error in admitting testimony of the plaintiff Emalyne Coats. Hulsey v. Quarry & Const. Co., 326 Mo. 194, 220; Wolfson v. Cohen, 55 S.W.2d 677, 680; Lux v. Milwaukee Mechanics' Ins. Co. (Mo. App.), 30 S.W.2d 1090, l. c. 1092; Carter v. Zollinger, 85 S.W.2d 189, 191. (5) There was no error committed in this case in the examination of plaintiff's witness Mrs. Raymond Holman. The subject-matter to which the objections were directed would not have constituted error had such evidence been admitted by the court, over the objections of defendants. State v. Patton, 255 Mo. 245, 256; State v. Gregory, 339 Mo. 133, 148; State v. Murphy, 345 Mo. 358, 361; Waeckerley v. Colonial Banking Co., 228 Mo.App. 1185, 1191; Weston v. American Nat. Assur. Co., 32 S.W.2d 789, 791.

Howard F. Majors for appellants.

(1) The court erred in giving plaintiff's instruction P-A. Owens v. McCleary (Mo.), 281 S.W. 682; Sommers v. St. Louis Transit Co., 108 Mo.App. 319, 83 S.W. 268; Allen v. St. Louis Transit Co., 183 Mo. 411, 81 S.W. 1142; Egan v. Palmer (Mo. App.), 293 S.W. 460; State ex rel. Burger v. Trimble (Mo.), 55 S.W.2d 422; Harke v. Haase (Mo.), 75 S.W.2d 1001; Van Bibber v. Willman Fruit Co. (Mo. App.), 234 S.W. 356; Burger v. Niedorp (Mo. App.), 50 S.W.2d 174, certiorari quashed; State ex rel. Burger v. Trimble et al., 55 S.W.2d 422; State ex rel. Brancato v. Trimble et al., 322 Mo. 318, 18 S.W.2d 4; Price v. Met. Street Ry. Co., 220 Mo. 435, 119 S.W. 932; Goldbaum v. Mulligan Pub. Co. (Mo.), 149 S.W.2d 348; Shannon v. People's Motor Bus Co. (Mo. App.), 20 S.W.2d 580; Morris v. Seitrich (Mo. App.), 118 S.W.2d 46; Ducoulombier v. Baldwin et al. (Mo. App.), 101 S.W.2d 96; Reavis v. Gordon (Mo. App.), 45 S.W.2d 99; St. Louis & H. R. Co. v. Walsh Fire Clay Products Co. (Mo. App.), 16 S.W.2d 616; Disano v. Hall (Mo. App.), 14 S.W.2d 483; White v. Handy (Mo. App.), 245 S.W. 613; Lackey v. United Rys. Co. (Mo.), 231 S.W. 956; Howard & Brown Realty Co. v. Berman (Mo. App.), 245 S.W. 606. (2) The court erred in giving plaintiff's Instruction P-D. (3) The court erred in giving plaintiff's Instruction P-C. Gardner v. Turk (Mo.), 123 S.W.2d 158; Schipper v. Brashear Truck Co. (Mo.), 132 S.W.2d 993; Wilsch v. Gleiforst (Mo. App.), 259 S.W. 850; Lewis v. Kansas City Pub. Serv. Co. (Mo. App.), 17 S.W.2d 359; Birdsong v. Jones (Mo. App.), 30 S.W.2d 1094; Fuller Co. v. St. Louis Wholesale Drug Co. (Mo. App.), 282 S.W. 535; Moran v. C., B. & Q. R. Co. (Mo. App.), 255 S.W. 331; Jones v. Norman (Mo. App.), 248 S.W. 621. (4) The court erred in giving plaintiff's Instruction P-D for the reason that such instruction does not limit recovery for various specific items of plaintiff's damage for the amount claimed for such specific items of damage in plaintiff's petition. Reavis v. Gordon (Mo. App.), 45 S.W.2d 99; Davis v. City of Independence (Mo.), 49 S.W.2d 95. (5) The court erred in admitting testimony of the plaintiff, Emalyne Coats. Lowenstein v. Widdicomb (Mo. App.), 52 S.W.2d 1044; Audrain County v. Muir (Mo.), 249 S.W. 383; Thompson v. Met. Street Ry. Co., 135 Mo. 217, 36 S.W. 625; Elliott v. Kansas City, 210 Mo. 576, 109 S.W. 627; McLean v. Kansas City, 81 Mo.App. 72; Hill v. City of Sedalia, 64 Mo.App. 494; Hickey v. Welch, 91 Mo.App. 4. (6) The court erred in failing to sustain defendants' objection to plaintiff's cross-examination of plaintiff's own witness, Mrs. Raymond Holman. State v. Burks, 132 Mo. 363, 34 S.W. 48; State v. Drummins, 274 Mo. 632, 204 S.W. 271; McDaniel v. Sprick (Mo.), 249 S.W. 611.

OPINION

Bland, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 1000, and defendants have appealed.

The action grew out of a collision, occurring on the 29th day of March, 1941, between a taxicab, in which plaintiff was a passenger, and an automobile. The collision took place at the intersection of North Eighth Street and Park Avenue, public streets, in the City of Columbia. The taxicab was owned by the defendant, Old, and was being driven by his employee, the defendant, Turner.

Complaint is made of the giving of plaintiff's Instruction P-A, which told the jury, among other things, that if they found "that the taxicab mentioned in evidence was then and there being operated at a rate of speed which was high, dangerous and excessive under the circumstances then and there existing, and that the defendants were negligent in so doing, if you so find, and if you further find and believe from the evidence that because of the negligent operation of said taxicab by the defendants at said time and place, provided you find it was negligently operated, it was caused to and did collide with an automobile then and there driven by one W. J. Blackwell, directly causing or directly contributing to cause plaintiff to be injured, then your verdict will be for the plaintiff." (Italics ours.)

It is insisted that that part of the instruction italicized constitutes a submission of general negligence, and that the instruction does not require the jury to find that the excessive speed of the taxicab, submitted therein, directly caused, contributed to cause, or was the proximate cause, of plaintiff's injury.

One of the acts of negligence pleaded in the petition was excessive speed of the taxicab and this alleged act of negligence was attempted to be submitted in plaintiff's Instruction P-A. We disagree with the contention of the defendants that the word "the" used before the words "negligent operation", in that part of the instruction italicized is equivalent to the use of the word "any". The word "the" is "a definite article" (Webster's New International Dictionary), and, as used in the instruction, refers to the specific negligence theretofore mentioned in the instruction. We think that that part of the instruction complained of cannot be separated from the rest and, therefore, it does not submit general negligence, but negligent speed and such as being the proximate cause of the injury. [Crowley v. American Car & Foundry Co., 279 S.W. 212.]

We have examined Morris v. Deitrich, 118 S.W.2d 46, and other cases cited by defendant on this point, and find them not applicable.

It is insisted that the court erred in the giving of plaintiff's Instruction P-D, reading as follows:

"If from the evidence in this case and the instructions of the Court your verdict is in favor of the plaintiff, then it becomes your duty to allow her such a sum of money as you find from the evidence will reasonably and fairly compensate her for all damages you find from the evidence have directly resulted to her by reason of the defendants' negligence, if you so find that the defendants were negligent."

It is urged that this instruction constitutes a submission of general negligence, giving the jury a roving commission, and does not submit the specific acts of negligence (excessive speed) relied upon by plaintiff and sworn by the evidence. There is no merit in this contention. [Rush v. Hollingsworth, 89 S.W.2d 535; Laycock v. United Rys. Co., 235 S.W. 91.]

It is insisted that the court erred in giving the instruction for the reason that it does not limit recovery for various specific items of plaintiff's alleged damages to the amount claimed for such specific items of damage in plaintiff's petition.

In the petition plaintiff alleges special damages as follows: Doctors' bills $ 25, Hospital bill $ 25, Domestic help $ 25, Additional household expenses $ 50, Earnings lost $ 132.

It is not contended that there was any evidence tending to show that the damages for any of these various items were greater than claimed in the petition, consequently, there is no merit in the contention. [1 Raymond, Missouri Instructions, pp. 128, 129; Leighton v. Davis, 260 S.W. 986; Scanlon v. Kansas City, 81 S.W.2d 939; Peck v. W. F. Williamson Adv. Serv., etc., 68 S.W.2d 847; Burnison v. Sonders, 35 S.W.2d 619; Reaves v. Gordon et al., 45 S.W.2d 99.]

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