"On January 2, 1931, plaintiff filed her petition in the circuit court of Pemiscot county, Mo., against the defendant, alleging that she was the duly appointed administratrix of the estate of Nancy Brumley, deceased, who died on the 4th of October, 1930; that she was a pedestrian on Highway 61 and was struck by an automobile driven by defendant; that her death was a direct result of negligence, pleading ten alleged grounds of negligence, and that the defendant acted recklessly, heedlessly, and wantonly, so as to entitle plaintiff to punitive damages; that she prosecuted the suit as administratrix within one year of the death of Nancy Brumley; that `plaintiff has been damaged in the sum of $750.00 for funeral bill, and by reason of the aggravating circumstances plaintiff has been injured and damaged in the sum of $9250.00,' and prayed judgment for $10,000. The petition failed to allege that the deceased left any heirs or persons capable of inheritance or name any such persons, or to allege that anybody was dependent upon deceased, but was a straight suit by the administratrix for damages to the administratrix.
"On April 28, 1931, plaintiff took a change of venue from Pemiscot county to Scott county; and thereafter on August 20, 1931, plaintiff filed an amended petition alleging that plaintiff was appointed administratrix of the estate of Nancy Brumley on January 4, 1931, and that deceased died October 4, 1930; that she was a pedestrian `in and upon the traveled portion of branch Highway No. 61, when she was struck and seriously injured by an automobile, causing her death, which was the result of the following acts of defendant's negligence and carelessness,' to wit: (1) Excessive and unreasonable and dangerous rate of speed `under the circumstances'; (2) failed to give signals; (3) failed to swerve, slow down and stop to avoid deceased, but swerved so as to hit her; (4) failed to have the automobile under control so same could be stopped on the first appearance of danger; (5) failed to use the highest degree of care to keep a watch ahead and to the side; (6) failed to keep a vigilant watch for persons on the road or path approaching the road in a position of peril, `when by keeping such watch defendant could have seen deceased on the road, in or approaching the pathway of defendant's automobile, in time by the exercise of the highest degree of care, with the appliances at hand, to stop said automobile, slacken the speed, sound a warning and have averted striking the deceased'; (7) failed to drive in a careful and prudent manner; (8) failed to operate the car at a rate of speed so as not to endanger the property or life or limb of persons; (9) defective brakes on the car; (10) operated the car in excess of 25 miles an hour for more than a half a mile; and (11) defendant was under the influence of intoxicating liquor, in a state of anger, with intent to commit a crime, `and that he recklessly, heedlessly and wantonly' operated said automobile with a reckless disregard for life or limb, and by reason thereof plaintiff is entitled to punitive damages. Plaintiff then alleges that the deceased left no husband or minor children, but three adult children, naming them, who were her sole distributees and heirs, whom she aided and assisted with her earnings, counsel, labor, services, and by her death they had been deprived of the society, companionship, aid, counsel, services, and assistance of deceased, and had been damaged in the sum of $10,000, and that defendant should be penalized in the sum of $10,000, and prayed for judgment in the sum of $10,000.
"On the same day, August 21, 1931, defendant filed a motion to strike said amended petition, as not being an amendment but a substitution; that the original petition stated no cause of action, and therefore not subject to amendment; that said amended petition for the first time stated a cause of action, which could not be done by amended petition. This motion was overruled and defendant excepted and obtained permission to, and filed, a term bill of exception.
"On April 28, 1931, defendant filed his answer to said amended petition, containing: (1) General denial; (2) that if deceased was struck by defendant it was caused by her contributory negligence; (3) and that her injury was caused by her own negligence.
"On November 23, 1931, the cause was tried before a court and jury, resulting in a verdict for plaintiff for $3,000 actual damages and $7,000 on account of aggravating circumstances. Motion for new trial was duly filed, and on the 1st day of April, 1932, plaintiff entered a voluntary remittitur in the sum of $1,500 actual damages and $2,000 punitive damages, leaving a verdict of $6,500, and motion for new trial was overruled; and in due course an appeal was taken.
"The accident occurred in branch Highway
61 leading from Caruthersville due west out to main Highway 61. It is highly improved road, 18-foot slab, and about three miles out of Caruthersville it goes through the little village of Stubtown, consisting of two or three store buildings, six residences, and a filling station; a country road going north and south passed between the two store buildings across branch Highway 61. Said road north of the concrete is a dirt road, called Lover's Lane, and south of the concrete is a gravel road called the Cottonwood Point road. The two store buildings, the plaintiff's home, and also the home of John Brumley, with whom deceased lived, were all on the north side of branch Highway 61. It was night and the deceased had been to the store east of Lover's Lane on Highway 61 and had started down to her home, traveling west along or near 61 branch highway when she was struck and killed. About the time her body was found the defendant was something like 40 feet west of her on the opposite side of the road, in the ditch. There is a ditch on each side of said highway and persons going from said store down to the house where Mrs. Cummings lived would go along either on the concrete or the side of the road between the concrete and the ditch across Lover's Lane, and the store building west and to the second dwelling house where there was a one-plank footbridge from the road across the ditch. John Brumley, with whom deceased made her home, lived in the third and last house west from Lover's Lane, and but a few hundred feet therefrom.
"The plaintiff, to sustain her case, offered the defendant, who is a deaf-mute, and his testimony was given by an interpreter. He testified that he did not strike anybody at Stubtown; that he had drunk no liquor, except three little bottles of beer, in the evening; that he had been attempted to be robbed some time before during that same evening, and had been struck in the head about an hour before he reached Stubtown; that driving west he saw a car coming, and about the same time he saw a wagon that he was going to pass, but in attempting to pass the wagon and make a sharp turn around it, and a car coming meeting him, caused him to lose control of his car and it ran off of the pavement to the right; `then I cut the car back to the left quick, broke a headlight and run in the ditch on the left side of the road, struck on the concrete bridge and broke the headlight.' That he was going 25 or 30 miles an hour and the car meeting him was going about 45 miles, traveling on the left side of the road before he left the wagon, and would have struck him if he had not made the sharp turn to the right around the wagon; that his eyesight was good and he was not drunk; that he tried to get around the wagon when he saw the automobile coming at 45 miles an hour, because he did not want a wreck; that he could not slow down, because it was too late; he was not far enough from the wagon.
"Besides the defendant, plaintiff only offered three witnesses as to the collision and accident, viz., Herschel Cummings, Walter Bird, and Horace Wicker, only the last of which claimed to be an eyewitness.
"Herschel Cummings was a grandson of deceased, and at the time of the accident was standing at a pump between the two stores with Wyatt Bird, and says, as to the accident: `My attention was attracted to it when he ran off the concrete, although I did not see the automobile pass me. The automobile was something like 150 feet from the pump when it ran off the road. It ran off the road right in front of this old store building (the one west of Lover's Lane). This was the first time I saw the automobile. The distance from where it ran off the road to where the body was found is about 15 feet.'
"He further testified that his grandmother had been gone something like ten minutes when he left the house, but he did not see her when she left the store: `I did not see the car strike my grandmother; I could not have seen my grandmother because the car went off the concrete and would have been between me and her. I heard the blunder. It was 10 or 15 minutes since I saw her.'
"He testified that the first he noticed was when the brakes were applied, and the car went off the concrete and there...
