Crupe v. Spicuzza

• Decision Date: 08 October 1935
• Docket Number: No. 23487.,23487.
• Citation: 86 S.W.2d 347
• Parties: CRUPE v. SPICUZZA.
• Court: Missouri Court of Appeals

86 S.W.2d 347

CRUPE v. SPICUZZA.

No. 23487.

St. Louis Court of Appeals. Missouri.

October 8, 1935.

Rehearing Denied October 29, 1935.

Appeal from St. Louis Circuit Court; Chas. B. Williams, Judge.

"Not to be published in State Reports."

Action by Margaret Crupe, an infant, by Joseph Crupe, her next friend, against Vincent Spicuzza. From a judgment for the plaintiff, the defendant appeals.

Judgment affirmed.

Bishop & Claiborne and George E. Heneghan, all of St. Louis, for appellant.

John C. Vogel and Clifford R. Cravens, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff on June 26, 1932, allegedly occurring as the result of the negligence of defendant in the operation of his automobile in which plaintiff was riding as a guest. Tried to a jury in the circuit court of the city of St. Louis, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $2,000. Judgment was rendered accordingly; and defendant's appeal to this court has followed in the usual course.

Plaintiff is Margaret Crupe, a resident of the city of St. Louis, who, by reason of her minority, sues through Joseph Crupe, her father and next friend. Defendant is Vincent Spicuzza, also of the city of St. Louis, and seemingly an acquaintance of plaintiff and her family over a period of several years prior to the occurrence in question.

The accident happened at a point on United States highway No. 61, about 3½ miles north of Bowling Green, Mo. Defendant was driving his automobile, a Cadillac sedan, with his wife in the front seat beside him, while plaintiff, then about 17 years of age, was seated in the rear seat between her father and mother. The destination of the group was the city of Hannibal, where defendant expected to meet his mother, and plaintiff to visit her sister. While traveling along at a speed estimated by plaintiff at 50 or 55 miles an hour, but which her counsel insist is shown by the physical facts to have been undoubtedly greater, the left rear tire blew out, causing the automobile to swerve back and forth across the road for the approximate distance of a city block, and finally to leave the pavement, crashing through the shrubbery at the edge of the shoulder, and rolling over and over till it ended upright, but turned facing back to the south, at a point some 20 feet or more east of the edge of the slab.

Defendant testified that following the blowout he tried as best he could to control the car and to stop it by applying the emergency brake, but that he shortly lost control, the car running off the highway and turning over and injuring him so that he lost all consciousness for a time. Other evidence showed that the rim of the left rear wheel where the blowout had occurred had cut a groove in the concrete for a distance of about 75 feet from the point where the brakes had been applied and the wheels locked to the point where the car had left the pavement, and that when the automobile was later taken in charge by the repairmen, the emergency brake was set so tightly that it proved difficult to release.

There was other evidence to show that the tires had been purchased new by defendant; that they had been on the car for about a year and a half; and that they had gone only some 5,000 miles. The blowout was found to have extended about 2 inches in length; and an examination of the tires after the accident by certain of plaintiff's own witnesses revealed that they looked reasonably good so that from their appearance an ordinary motorist would have felt warranted in using them upon his automobile. Even as regards the tire which had figured in the accident, save for the blowout, there was no apparent damaged place about it, or nothing in evidence which would have led one to believe that it would be unsafe to use upon the car.

The negligence pleaded in the petition was "that defendant, at said time and place, failed to exercise the highest degree of care in the operation of said Cadillac automobile, and without warning suddenly and negligently and carelessly permitted said automobile to swerve back and forth on said highway and to overturn and to run off said highway and into a cornfield adjoining said highway, whereby plaintiff was violently thrown about in said automobile and against the sides, top and floor and appliances in said automobile."

Suffice it to say that the controversy on this appeal centers largely around the question of whether such charge was specific or only general in its scope, and of this we shall have more to say anon.

Issue was joined between the parties upon defendant's answer in the form of a general denial. If there was any intervening pleading filed by defendant, such as a motion to make the petition more definite and certain, the record does not so show.

Now upon the assumption that the petition did charge only general negligence and that under a charge of that general character plaintiff was entitled to offer and rely upon proof of any acts or conduct of defendant which might be said to have constituted negligence on his part, plaintiff requested and received her instruction No. 1, which is now the subject of severe criticism by defendant upon the theory that its hypotheses of negligence were beyond the purview of the charge of negligence in the petition which defendant claims was itself specific if it in fact rose to the dignity of a charge of negligence at all, and in any event were without support in substantial evidence in the case. The instruction in question reads as follows:

"The Court instructs the jury that if you find and believe from the evidence * * * that at said time and place defendant negligently and carelessly failed to exercise the highest degree of care in the operation of said automobile to keep same under proper control, and negligently and carelessly drove and operated said automobile at an excessive rate of speed under all of the circumstances then and there existing as shown by the evidence, if you so find, and negligently and carelessly applied the emergency brake of said automobile suddenly and violently while said automobile was traveling at a high rate of speed (if you so find), and that as a direct result of such acts of negligence (if you so find), said automobile was caused to run off of the paved portion of said highway and into a field alongside said highway and to turn over, and plaintiff was thereby caused to be thrown about in said automobile and out of said automobile and was injured as a direct result thereof, then, if you so find, your verdict will be in favor of the plaintiff and against the defendant."

Thus it is to be observed that in the submission of her case plaintiff relied conjunctively upon three distinct assignments of specific negligence, namely, excessive speed under the circumstances, lack of control, and negligent application of the brakes while traveling at a high rate of speed, the first of which related largely to defendant's operation of his automobile before the blowout, and the latter two to his management of it thereafter. Moreover she concedes that aside from any question of the sufficiency of the evidence to have warranted the submission of the case upon any one or more of such theories, the giving of the instruction hypothesizing the particular unpleaded specific acts of negligence was proper only in the event that her petition is to be construed as having pleaded no more than general negligence, so that, as we have already indicated, the interpretation to be placed upon her petition is actually the vital point in the case. This for the reason that if the charge of negligence in the petition was general as plaintiff claims, not only was she entitled but she was in fact required to submit the specific acts of negligence shown by the evidence (Allen v. Missouri Pac. R. Co. [Mo. Sup.] 294 S. W. 80), while on the other hand, if the charge was specific as defendant insists that we should read it, then it was essential that the very specific charge pleaded and none other be proved and submitted to the jury before a judgment in plaintiff's favor could be upheld. Munsey v. Eagle Packet Co. (Mo. App.) 50 S. W.(2d) 754.

In the light of both reason and precedent, we think that plaintiff must be held to have pleaded general negligence only. All that the petition purported to charge was that defendant negligently permitted his automobile to swerve back and forth on the highway and to run off the highway and overturn, in the course of all of which plaintiff was injured. It will be noted that the petition described merely the general circumstances of the occurrence, without making any pretense of pointing out the particular act or acts done or omitted to be done by defendant which brought about the occurrence. Otherwise stated, the petition did not allege what defendant did or did not do to cause and permit the car to swerve back and forth on the highway and to leave the highway and overturn, but only that such things happened through the carelessness and...