Conley v. Crown Coach Co.

• Decision Date: 26 February 1942
• Docket Number: 37694
• Parties: Mattie A. Conley, Appellant, v. Crown Coach Company, a Corporation
• Court: Missouri Supreme Court

159 S.W.2d 281

348 Mo. 1243

Mattie A. Conley, Appellant, v. Crown Coach Company, a Corporation

No. 37694

Supreme Court of Missouri

February 26, 1942

Appeal from Jasper Circuit Court; Hon. Wilbur J. Owen Judge.

Affirmed.

Kelsey Norman and Henry Warten for appellant.

(1) The driver of the car following another is required only to maintain such speed and distance from the lead car as to be able to meet the usual and ordinary movements of a car using the highway. Adams v. Morgan, 173 So. 540; Vinson v. Kissinger's Admr., 274 Ky. 606, 119 S.W.2d 628; 5 Am. Jur., p. 656, sec. 280; 2 Blashfield Cyclopedia of Automobile Law and Practice, p. 71, sec. 931; 42 C. J. 948. In the case at bar, plaintiff was not required to anticipate that the driver of defendant's bus would suddenly drive the bus in front of the Prettyman car when the way ahead was not clear of approaching traffic. (2) The facts in this case being undisputed, the court's conclusion of law that a question of fact was presented to the court, was erroneous, because when the facts are undisputed in any case the question presented is always one of law and not of fact. Douglas v. Met. Life Ins. Co., 297 S.W. 87. (3) Giving of abstract conclusions of law is to be condemned. Howard v. Fred Schmitt Realty & Inv. Co., 7 S.W.2d 448. (a) Giving a conclusion of law that is not supported by the evidence is erroneous. Gundelach v. Compagnie General Trans. Atl., 41 S.W.2d 1. Therefore, when the court gave its abstract conclusion that where plaintiff's evidence failed to show her guilty of negligence contributing to her injury, the burden of showing her guilty of such negligence rested on defendant, he committed error; and when there was no evidence of either plaintiff or defendant showing her guilty of negligence contributing to her injuries, if the court based his finding against plaintiff because of contributory negligence, the conclusion of law was and is reversibly erroneous. (4) When a person is confronted with a sudden emergency, not created by any acts of their own, their conduct, under such circumstances, is excused. Inman v. Walter Freund Bread Co., 332 Mo. 461, 58 S.W.2d 477. (5) Where, as here, the undisputed evidence shows that defendant was guilty of negligence, and no evidence having been offered in rebutal, a judgment for plaintiff should have been rendered. McGoffin v. Mo. Pac. Ry. Co., 102 Mo. 540, 15 S.W. 76, 22 Am. St. Rep. 798; Crawford v. Stayton, 131 Mo.App. 263, 110 S.W. 665. (6) When a requested conclusion of law is supported by the evidence, and within the purview of the pleadings, if the request is denied, error is committed. Telaneus v. Simpson, 321 Mo. 724, 12 S.W.2d 920. (7) A violation of the statute being negligence per se, and the plaintiff's petition charging as negligence on the part of the defendant, the violation of the sections 7775 and 7777(e), R. S. 1929, and the undisputed evidence showing defendant to be guilty of such violation, the court erred in refusing to grant plaintiff's requested conclusion numbered 3, declaring that the violation of said sections constituted negligence per se. Dorth v. Reichel Motor Co., 223 S.W. 675. (8) The evidence in this case having shown, without dispute, that the plaintiff was confronted with a sudden emergency created by the negligent conduct of the defendant, the court erred in refusing plaintiff's requested conclusion of law numbered 4, as said conclusion correctly stated the law with relation to the conduct of a person confronted with a sudden emergency. Inman v. Walter Freund Bread Co., 332 Mo. 461, 58 S.W.2d 477. (9) The facts being undisputed, the court was required to find for the plaintiff, if these facts showed the defendant guilty of negligence, and further showed plaintiff's injury to be the proximate result of such negligence, and the court should have granted plaintiff's request for a conclusion that the verdict and judgment herein should be for the plaintiff and against the defendant. Cases cited under Point (5). (10) The finding and verdict herein, under the law and the facts necessarily being required to be in favor of the plaintiff, and plaintiff's requested conclusions 5 and 6, assessing her damages, being a correct statement of the method of assessing such damages, the court erred in not giving said conclusions. (11) The evidence in this case being undisputed, and there being no substantial evidence in the case to support the trial court's finding for the defendant, the Supreme Court will interfere and reverse the judgment with directions for the court below to enter such verdict as to the appellate court shall seem according to law. In re Lankford's Estate, 272 Mo. 1, 197 S.W. 147.

Roy Coyne and Emerson Foulke for respondent.

(1) Our courts have repeatedly held that in the trial of a law case before the court, a special finding of fact and conclusions of law, made by the court on its own motion must be ignored, disregarded and not considered on review. State ex rel. Sullivan County v. Maryland Cas. Co., 66 S.W.2d 537; Wooley v. Dorl, 93 S.W.2d 1098; Kansas City v. Boyer, 202 S.W. 1086. (2) The submission to the court of specific findings of fact and conclusions of law with a request that the court give them as his own is not a request for findings of fact and conclusions of law under Section 1103 of Revised Statutes of Missouri of 1939. This is what the record shows was done in this case and the lower court cannot be convicted of error for his refusal to adopt as his own the appellant's specific findings of fact and conclusions of law. Lindburg v. Quinn, 123 S.W.2d 215; McBride v. Mercantile Commerce Bank & Trust Co., 48 S.W.2d 922. (3) Upon this record the voluntary findings of fact and conclusions of law given by the court of his own motion must be disregarded. Authorities cited under (1). And if there is substantial evidence to sustain the judgment there is nothing for the court to do on appeal but affirm the judgment. Kansas City v. Boyer, 202 S.W. 1086; Wischmeyer v. Richardson, 55 S.W. 74, 153 Mo. 55. Appellant, by her submission of specific findings of facts, waived any question as to the sufficiency of the evidence and conceded that the case was one to be decided by the lower court as one of fact. Cantley v. American Surety Co., 38 S.W.2d 739; Smith v. Universal Finance Corp., 137 S.W.2d 489. (4) Appellant's assignment of error numbered V complains of the court's refusal to give her requested conclusions of law numbered 1, 2, 3, 4, 5 and 6. These were submitted separately but in conjunction with and at the same time as the appellant's requested finding of facts, as shown by respondent's additional abstract of the record proper and cannot be considered as requested declarations of law, because they are quite distinct and different from declarations of law. They cannot be measured by the same rules as declarations of law nor can the court be convicted of error for refusal to give them. Points and Authorities (2). (5) There was substantial evidence to support the finding of the court. There was no evidence of negligence on the part of the defendant. (6) Regardless of whether or not the court's findings of fact are properly before this court, it was supported by the preponderance of the credible evidence. (7) Although the court's conclusions of law, given of its own motion, are to be disregarded on appeal, they do constitute a correct statement of the law and are supported by the evidence. (8) Appellant's objection to the court's statement of the law relative to the duty of a following car for the reason that it was not supported by the evidence is not well taken. It was supported by Mr. Prettyman's evidence, as well as the evidence of other witnesses. The court's statement of the law as to the duty of following cars is correct. 42 C. J. 950. (9) The appellant having requested findings of fact concedes the facts were disputed. Cantley v. American Surety Co., 38 S.W.2d 739; Smith v. Universal Finance Corp., 137 S.W.2d 489. The facts in this case were disputed. (10) The evidence does not support the theory that plaintiff was faced with a sudden emergency, not created by any acts of her own. (10). There is no evidence that the defendant was negligent.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

PER CURIAM

Action for damages alleged to have been occasioned by the negligence of defendant. Defendant denied generally and pleaded contributory negligence. A jury was waived, the cause tried to the court and judgment entered for defendant. Plaintiff has appealed. We have jurisdiction because the amount sued for exceeds $ 7,500.

About 6 p.m. on July 8, 1939, plaintiff was driving her automobile south on U.S. Highway No. 71, near Peculiar, Missouri. Charles W. Prettyman was driving his automobile south on the same highway in front of plaintiff's automobile. J. F Calloway was driving an open stake bed Chevrolet truck north on the same highway. Defendant's bus was being operated north on the same highway, behind the Calloway truck. The highway was straight, level and paved with concrete. The pavement was 18 feet wide with a black mark along the center line. As the two vehicles traveling south approached the two traveling north, the driver of the bus pulled out to pass the truck ahead of him. When he saw the Prettyman car approaching from the north and some 300 feet away, he immediately pulled back into line on his own side of the highway. Mr. Prettyman, upon seeing the bus pull out, put on his brakes and slowed down. Plaintiff, driving behind Mr. Prettyman, was unable to stop without hitting the Prettyman car, and turned southeastwardly (to her left) and passed across the east side of the highway in front of the approaching truck and bus. Her automobile went across the east shoulder,...