Collins v. Stroh

• Decision Date: 20 February 1968
• Docket Number: No. 32747,32747
• Citation: 426 S.W.2d 681
• Parties: Jack COLLINS and Winona Collins, Plaintiffs-Respondents, v. John H. STROH, Administrator of the Estate of Devern V. Kisling, Deceased, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 681

426 S.W.2d 681

Jack COLLINS and Winona Collins, Plaintiffs-Respondents, v. John H. STROH, Administrator of the Estate of Devern V Kisling, Deceased, Defendant-Appellant.

No. 32747.

St. Louis Court of Appeals, Missouri.

Feb. 20, 1968.

Motion for Rehearing or for Transfer to Supreme Court Denied

March 21, 1968.

Donald F. Flint, Clayton, for defendant-appellant.

Gray & Sommers, C. Marshall Friedman, St. Louis, for plaintiffs-respondents.

BRADY, Commissioner.

Plaintiffs, surviving parents of their deceased minor daughter, brought an action to recover for her wrongful death based upon a theory of res ipsa loquitur. The verdict was in favor of plaintiffs in the amount of $15,000.00 and judgment was entered in that amount against the defendant who appeals.

Plaintiffs alleged in the petition: '4. That at the time of the aforesaid plane crash said plane was owned, maintained and controlled by Devern V. Kisling, now deceased, and at the time of said crash was solely and exclusively under the management and control of said Devern V. Kisling.'

This crash occurred sometime in the evening of November 8, 1963. Mrs. Larsen came to the apartment shared by Misses Collins and Holloway at about 6:30 P.M. Also present were Mr. Cooper and Mr. Kisling. The parties discussed a proposed flight to Mexico, Missouri in Kisling's plane to a place he knew of in that city. Cooper did not know of this place. However, during the course of the conversation at the apartment both Cooper and Kisling stated they were going to fly the plane. The girls were hesitant about going but Kisling's explanation of his flying experience and knowledge was what persuaded them to go. They left the apartment about 7:30 P.M. and took off from the Creve Coeur Airport at 7:45 P.M. The only witness to the takeoff was Daniel Coates who managed that airport and who described the takeoff as normal. He did not see the four occupants get into the plane and did not know how they were seated.

Lawrence B. Sims, Jr., operation inspector for the Federal Aviation Agency, testified that he investigated the crash at the site on November 9th. He found the airplane to be relatively new, airworthy so far as the proper inspections having been made was concerned, and testified the crash occurred at a point where airplanes of all kinds are routed to fly and subject to anyone's use. The weather was clear and the visibility was approximately seven miles with the result that no instruments would have been required for visibility purposes. Sims could see where the plane crashed by marks in the ground. Parts of the aircraft were scattered over a considerable area, some small pieces being found as far as one hundred fifty feet from the main wreckage. He did not receive any reports nor have any knowledge of any jet aircraft having any involvement in this crash. It was impossible to tell if the controls had been in good operating condition although he found no evidence of control malfunction. Neither did he find any evidence that would lead to the conclusion the crash was due to mechanical failure, structural failure, in-flight distress, turbulence, or being struck by a duck or other flying object. Sims was unable to determine how the four occupants in the plane had been seated.

The aircraft here involved was a fourplace low-wing type equipped with dual controls so that it could be flown from either of the two front seats. When one of the controls was moved in one seat it moved in the other seat also.

The plaintiffs lived with their deceased daughter in West Frankfort, Illinois. Both are employed. Their daughter was twenty years old at the time of her death and would have been twenty-one on January 15, 1964. Mrs. Collins described her daughter as a nice-looking girl, tall, neat, who did not drink or smoke to her knowledge, and who had never been in difficulty with the law, in school, or with any of her employers. At the time of her death she had a full time job and was going to night school at Washington University in St. Louis three nights a week. She had previously attended the University of Illinois for a year and a half. She lived at home in West Frankfort during vacations and on weekends during the two years prior to her death. She would be at home on Saturdays and Sundays only, about every two or three weeks or once a month. When she was at home she did all of the housework and helped take care of her fourteen-year-old brother. She did not contribute any of her money to the support of her family. Her parents paid for her schooling.

During the trial defendant objected to testimony concerning plaintiffs' expectation of receiving services from their daughter when past her legal age. The matter arose in this fashion. Plaintiffs' counsel was inquiring of Mrs. Collins as to what services her daughter could be expected to perform in the future. Mrs. Collins stated what her daughter had done in the past. The following then occurred: 'Q. Can you tell us whether or not it was expected that she would do that in the future? A. Well she always did when she came home. MR. CRAIG: I object to that unless it is restricted to a period of time. THE COURT: Yes. Sustained. MR. SOMMERS: I agree. Q. (By Mr. Sommers) I mean when she was going to finish her education whether or not she would continue to do that in her recesses from school. That is what I had in mind. MR. CRAIG: I still would raise the objection. It is not limited to her minority, your Honor. THE COURT: Sustained.' (Emphasis supplied.)

When the parties were in chambers discussing with the court instructions and the matters to be covered during argument plaintiffs' counsel stated he intended to tell the jury '* * * that they are not limited to any damages that they may have sustained up to the time the girl was twenty-one years of age. * * * MR. CRAIG: I object to him arguing that on the grounds there is no evidence of any damage over the age of twenty-one years by the very proof that was put in in plaintiffs' case and consequently anything that he would argue as to damages over would be outside of the evidence and purely speculative, conjecture. MR. SOMMERS: The only way you can show damages by loss of services of a minor is by showing past actions and that the child was--that--there was no reason to show an expected change in the future. We have shown the past conduct of the child just as the same was in that case there (indicating).' (Emphasis supplied.) The court overruled the objection and permitted the argument. It is unnecessary to set out the exact words used by plaintiffs' counsel to press his argument dealing with the award of damages to the plaintiffs for services that might be received from their daughter past her majority. There is no dispute as to what was said nor is there any doubt but that plaintiffs' counsel did in fact argue that issue. The motion for new trial does contain an allegation of error relating to the argument made by plaintiffs' counsel. Paragraph 4 of that motion reads: 'The Court erred in permitting counsel for plaintiff, over objection of defendant, to argue speculative, conjectural, immaterial and otherwise improper items of damage.'

Plaintiffs' verdict directing instruction submitted: 'First, Devern V. Kisling either controlled or had the right to control the operation of the airplane, * * *.'

There are four allegations of error contained in defendant's brief which plaintiffs contend are not properly before this court for ruling. In the first of these defendant attacks the giving of plaintiffs' verdict directing instruction on the ground that it submitted a theory inconsistent with plaintiffs' pleadings. The inconsistency referred to is that the petition alleged that aircraft involved was 'owned, maintained and controlled' by Kisling, defendant's decedent, and 'at the time of said crash was solely and exclusively under the management and control of said Devern V. Kisling' while the instruction allowed the jury to return a verdict for plaintiffs if it found that Kisling 'either controlled or had the right to control the operation of the airplane, * * *.' Defendant's motion for new trial attacks this instruction at Paragraph 5 which is divided into four subparagraphs. These sub-paragraphs are completely devoid of language which specifically or by fair implication alleges the instruction was inconsistent with the pleadings. It follows that allegation of error is not preserved for our review. ¹ It should be noted the court gave Instruction No. 3 at the request of defendant. That instruction informed the jury their verdict must be for defendant '* * * unless you believe Devern V. Kisling had the control of the aircraft at the time of the occurrence * * *.' (Emphasis supplied.) So the theory defendant contends should have been submitted to the jury was in fact presented to them albeit not in plaintiffs' verdict directing instruction.

The court also gave Instruction No. 6 submitted by plaintiffs which authorized the jury to award plaintiffs such sum as they believed would fairly and justly compensate them for the damages '* * * which you believe plaintiffs sustained and are reasonably certain to sustain in the future, * * *.' Defendant's brief contains the allegation this instruction was erroneously given. The transcript discloses defendant's counsel made a general objection at the trial to the giving of plaintiffs' instructions. The motion for new trial contained nine assignments of error. None of these contains any reference to Instruction No. 6 by number nor by the matter dealt with in that instruction. This allegation of error is not preserved for our review as defendant's counsel candidly admits in the reply brief.

The third and fourth allegations of error plaintiffs contend defendant has failed to preserve for our ruling deal with the trial court's action in permitting plaintiffs' counsel to argue damages that might accrue to plaintiffs beyond their deceased daughter's...