Daniels v. Langensand
| Decision Date | 06 October 1936 |
| Docket Number | No. 23703.,23703. |
| Citation | 96 S.W.2d 911 |
| Parties | ROBERT M. DANIELS, RESPONDENT, v. JOHN LANGENSAND, DOING BUSINESS AS SOUTH ST. LOUIS DAIRY COMPANY, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis. — Hon. Granville Hogan, Judge.
REVERSED AND REMANDED.
Wm. L. Bohnenkamp and W. Paul Mobley for appellant.
Louis M. Bohnenkamp of Counsel.
(1) There was no foundation laid in plaintiff's evidence for the introduction of Section Three, Paragraph H, Ordinance No. 32926. Columbia Taxicab Co. v. Mercurio, 236 S.W. 1096. (2) A party relying upon an ordinance has the burden of bringing his case within its provisions. Columbia Taxicab Co. v. Mercurio Co., supra; Fidelity & Casualty Co. v. Kansas City Ry. Co., 231 S.W. 277; Vonkey v. City of St. Louis, 117 S.W. 733. (a) There is no causal connection between the alleged violation of this ordinance and the happening of the collision. Krelitz v. Calcaterra, 33 S.W. (2d) 909. (b) There was no moving line of vehicles into which the wagon moved, and the driver therefore had a common-law right to use any part of the street. See Merriam's Edition of Webster's Dictionary for definition of "line of vehicles." (3) An instruction purporting to cover the entire case and directing a verdict for plaintiff which permits a recovery upon a supposed violation of a pleaded ordinance illegally introduced in evidence and unsupported by the testimony is defective and constitutes reversible error. Columbia Taxicab Co. v. Mercurio, supra; Fidelity & Casualty Co. v. Kansas City Ry., supra; Krelitz v. Calcaterra, supra. (4) An instruction cannot be broader than the facts proven, although the pleadings may take a broader range. Degonia v. Railroad, 224 Mo. 564, 123 S.W. 807; Burgher v. Niedor, 50 S.W. (2d) 174; Sparkman v. Wabash R.R., 177 S.W. 703; Latham v. Harvey, 218 S.W. 401; Birdsong v. Jones, 30 S.W. (2d), l.c. 1098; State ex rel. National Newspapers' Ass'n v. Ellison, 176 S.W. 11. (5) An instruction on a theory unsupported by evidence is reversible error. Simms v. Dunham, 203 S.W. 1652; Boles v. Dunham, 208 S.W. 480; Ward v. Harvey, 182 S.W. 105; Northam v. U.R., 176 S.W. 227; Beave v. St. Louis Transit Co., 111 S.W. 52; Todd v. Mo. Pac., 105 S.W. 671; Ostopshook v. Cohn-Schwartz, 227 S.W. 642. (6) An instruction which permits a recovery upon a theory untenable under plaintiff's own testimony is erroneous and constitutes reversible error. Gass v. United Railways Co., 232 S.W. 160; Clark v. Wells, 44 S.W. (2d) 863; Latham v. Harvey, supra. (7) The defendant is entitled to have the jury committed by the instructions to the case made in the evidence. Lauff v. J. Kennard & Sons Carpet Co., 171 S.W., l.c. 989; Sommers v. St. Louis Transit Co., 83 S.W. 268; Clark v. General Motor Car Co., 160 S.W. 576. (8) A hypothetical question must be based on evidence. The hypothetical question propounded to Dr. Paul Schnoebelen contained elements not based on evidence, one of which was a blow to the neck or head. It was error to admit this evidence over defendant's objection, and error to overrule defendant's motion to strike out the hypothetical question and the answer thereto upon plaintiff's failure to supply the necessary evidence, the burden of proof being upon plaintiff to show a causal connection between injury and accident. Smith v. Pullman Co., 119 S.W. 1072; St. Louis Smelting & Refining Co. v. Industrial Commission, 298 Ill. 272; F.W. Woolworth v. Ind. Com., 353 Ill. 46. (9) Admission of testimony in evidence as to the transfer of property by the defendant after the accident causing injury and before the trial of the case is irrelevant, immaterial and incompetent, and argument of counsel for plaintiff to the jury that defendant had transferred his property after the accident so judgment against him would be uncollectible is a statement not reasonably inferred from the evidence, is immaterial to any issue of negligence in the case and is grossly misleading, improper and prejudical and constitutes reversible error. Hocks v. Sprangers, 113 Wis. 123; State ex rel. v. Haid, 64 S.W. (2d) 667. Amsinger v. Majin, 73 S.W. (2d) 214. (10) Defendant's demurrer at the close of plaintiff's case should have been sustained, and most assuredly should defendant's demurrer offered at the close of the whole case have been sustained, because plaintiff, having abandoned his theory of the case, there was nothing left on which plaintiff could go to the jury. Clark v. Granby Mining & Smelting Co., 183 S.W. 1099. (11) Defendant's demurrer at the close of plaintiff's case and at the close of the entire case should have been sustained, as the evidence showed that plaintiff was guilty of contributory negligence as a matter of law. Degonia v. R.R., supra. (12) Plaintiff's evidence and his own testimony was so contrary to the physical facts and all inferences deducible therefrom are so opposed to all reasonable probability as to be manifestly false and to not warrant the submission of the case to the jury. Roseman v. U.R., 251 S.W. 104. (13) The record in this case shows that plaintiff vigorously prosecuted the case and advanced every conceivable theory in its presentation, but since the evidence is wholly inadequate to justify recovery on the theory last adopted (instruction on alleged ordinance violation), it must be assumed that on retrial no additional evidence warranting recovery could be procured, and the judgment should be reversed without remand. Clark v. Granby Mining & Smelting Co., 183 S.W. 1099.
Eagleton, Waechter, Yost, Elam & Clark for respondent.
(1) This case was properly submitted to the jury upon the theory of defendant's violation of Paragraph H, Sec. 3, of Ordinance 32926, because: (a) The plaintiff was entitled to the benefit of the defendant's evidence, which established a violation of such ordinance by defendant's driver, he having driven the wagon from the side of the street into "line of moving vehicles," within the prohibition of the ordinance. Pabst v. Armbruster (Mo. App.), 91 S.W. (2d) 652; Wilhelm v. Hersh (Mo. App.), 50 S.W. (2d) 735. (b) Violation of such ordinance was one of the specifications of negligence charged against defendant in plaintiff's petition. (2) There was no error committed by the trial court in overruling defendant's objection to, and refusing to strike out the answer to, the hypothetical question propounded to Dr. Schnoebelen because: (a) The element of plaintiff's being struck upon the head, which appellant contends was without the evidence, is included in, and founded upon, the evidence contained in the record. (b) The appellant having failed to incorporate all of the evidence in the abstract of record, in that the Alexian Brothers Hospital report, which was marked and identified as "Plaintiff's Exhibit 3," and offered in evidence, was omitted by appellant from such abstract, it must be presumed that the defect complained of by appellant was supplied by such exhibit. State ex rel. City of Maplewood v. Southern Surety Co. (Mo. Sup.), 19 S.W. (2d) 691; Euler v. State Highway Commission (Mo. App.), 55 S.W. (2d) 719; O'Malley v. Heman Const. Co., 255 Mo. 386, 164 S.W. 565. (c) No objection or exception was properly made or saved by defendant to the rulings made upon the hypothetical question asked and the answer given in response thereto. Stokes v. Godefroy Mfg. Co. (Mo. Sup.), 85 S.W. (2d) 434; Glick v. Arink (Mo. Sup.), 58 S.W. (2d) 714; Davis v. City of Independence (Mo. Sup.), 49 S.W. (2d) 95; Goyette v. St. Louis S.F.R. Co. (Mo. Sup.), 37 S.W. (2d) 552; Rockenstein v. Rogers, 326 Mo. 468, 31 S.W. (2d) 792; White v. McCoy Land Co. (Mo. App.), 87 S.W. (2d) 672. (d) In any event, if the answer to such hypothetical question was merely "irrelevant and immaterial," as appellant contends, its admission in evidence was not reversible error. Span v. Jackson Walker Coal & Mining Co. (Mo. Sup.), 16 S.W. (2d) 190. (3) Appellant is in no position to complain of the admission of testimony as to the transfer of property by the defendant, or to complain of the argument of plaintiff's counsel, if any, relative thereto, because no proper objection was made, or exception saved, to the admission of such testimony or such argument relative thereto, if any. Authorities cited under point 2(c), supra. (4) (a) Appellant is in no position to complain of the refusal of the demurrer to the evidence offered at the close of the plaintiff's case, because he waived any error in the ruling thereon by producing evidence in his own behalf. Emory v. Emory (Mo. Sup.), 53 S.W. (2d) 908; Steffen v. Equitable Life Assurance Society (Mo. App.), 64 S.W. (2d) 302; Fenton v. Hart (Mo. App.), 73 S.W. (2d) 1034; Pritchett v. Northwestern etc. Ins. Co. (Mo. App.), 73 S.W. (2d) 815. (b) The demurrer to the evidence at the close of the entire case was properly overruled on the ground that plaintiff was guilty of contributory negligence as a matter of law in not stopping or attempting to stop his automobile after the wagon suddenly turned immediately in front of him, because: 1. The evidence showed conclusively that he could not have stopped his automobile in time to avoid a collision with the horse and wagon. 2. Even if plaintiff did the wrong thing by turning instead of attempting to stop in the sudden emergency created by the negligence of defendant's agent and servant, that fact does not convict him of contributory negligence as a matter of law, and it does not relieve defendant of liability for such negligence of his agent and servant. Frankel v. Hudson, 271 Mo. 495, 196 S.W. 1121; Iman v. Walter Freund Bread Co., 322 Mo. 461, 58 S.W. (2d) 477; Egan v. Palmer, 221 Mo. App. 823, 293 S.W. 460. (5) Although appellant has not established any ground for reversal of the judgment below, a reversal in any event must be accompanied by an order of remand because the evidence is not such as to absolutely...
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