Day v. Mayberry

Decision Date13 September 1967
Docket NumberNo. 8629,8629
Citation421 S.W.2d 34
PartiesMichael O. DAY, by his next friend, Roland Day, Plaintiff-Respondent, v. Gail MAYBERRY, a minor, by her guardian ad litem, Imogene Mayberry, Defendant-Appellant.
CourtMissouri Court of Appeals

Buerkle & Lowes, Jackson, for defendant-appellant.

Dalton, Treasure & Bullard, Kennett, for plaintiff-respondent.

STONE, Presiding Judge.

For injuries alleged to have resulted from a bizarre accident in Kennett, Missouri, about 9:30 P.M. on June 1, 1965, plaintiff Michael O. Day, then 16 years of age, instituted this action in which he sought damages of $10,000 from defendant Gail Mayberry, then also 16 years of age. Following entry of judgment upon a unanimous jury verdict for defendant, plaintiff's timely motion for new trial was sustained on the sole ground that the verdict was against the weight of the evidence. V.A.M.R. Rule 78.01. On this appeal by defendant, her contentions are (a) that 'a submissible case was not presented because the plaintiff was an undiscovered trespasser on the defendant's auto to whom no duty was owed' and (b) that, 'if it be deemed the plaintiff was either a discovered trespasser or a licensee or an invitee,' he 'was guilty of contributory negligence as a matter of law' or 'assumed the risk as a matter of law.' (All emphasis herein is ours.)

Some preliminary references to relevant legal principles may be helpful. As instant plaintiff emphasizes, a trial court is vested with broad inherent discretion to grant one new trial on the ground that the verdict is against the weight of the evidence. Frager v. Glick, Mo., 347 S.W.2d 385, 387(1); State ex rel. State Highway Com'n. v. Belvidere Development Co., Mo., 315 S.W.2d 781, 784(7). But that discretion is to be exercised judicially, not arbitrarily (Evans v. Landolt, Mo., 389 S.W.2d 15, 16(1); Madsen v. Lawrence, Mo., 366 S.W.2d 413, 416(5)); and repeated pronouncements have made it clear that the test as to whether there has been an arbitrary exercise of such inherent discretion is whether there was substantial evidence to have supported a verdict for the party to whom the new trial was granted. State ex rel. State Highway Com'n. v. Vaught, Mo., 400 S.W.2d 153, 155; Robinson v. Wampler, Mo., 389 S.W.2d 757, 759(2, 3); Dawson v. Scherff, Mo., 281 S.W.2d 825, 831; Williams v. Cass, Mo.App., 372 S.W.2d 156, 158(3), and cases cited in note 3.

Since plaintiff abandoned all other pleaded grounds of negligence by submitting his case on the assignments that 'defendant placed the vehicle in motion at a high rate of speed' and 'defendant drove at an excessive speed' (Guthrie v. City of St. Charles, 347 Mo. 1175, 1182, 152 S.W.2d 91, 93(1); Brooks v. Stewart, Mo., 335 S.W.2d 104, 105, 81 A.L.R.2d 508; Haire v. Stagner, Mo.App., 356 S.W.2d 305, 308(2)), our inquiry with respect to the sufficiency of the evidence should be confined to the two submitted assignments. Burnett v. St. Louis Public Service Co., Mo., 337 S.W.2d 921, 923(4); Herr v. Ruprecht, Mo., 331 S.W.2d 642, 647(2); Weathers v. Falstaff Brewing Corp., Mo.App., 403 S.W.2d 663, 666(5); Graham v. Conner, Mo.App., 412 S.W.2d 193, 197--198(2), and cases cited in note 3. In that inquiry and also in considering the additional issues raised by defendant as to whether or not plaintiff was contributorily negligent or assumed the risk of injury as a matter of law, we must consider the evidence in the light most favorable to plaintiff, must accord to him the benefit of all supporting inferences fairly and reasonably deducible from the evidence, and must disregard defendant's evidence except insofar as it may aid plaintiff. Chailland v. Smiley, Mo. (banc), 363 S.W.2d 619, 623(1), 5 A.L.R.3d 288; Allman v. Yoder, Mo., 325 S.W.2d 472, 474(3); Catanzaro v. McKay, Mo., 277 S.W.2d 566, 567--568(1). Our factual review accords due deference to that basic principle of appellate review.

At the conclusion of a youth rally at a Kennett church about 9 P.M., defendant Gail Mayberry loaded three teenage companions, namely, David Haire, David Cooper and Pat Dickie, into her father's 1955 DeSoto tudor hardtop, which she was driving with his permission, and took them for a ride about town. Haire, who did not testify and whose exact age was not shown, rode in the front seat with defendant. The other couple rode in the rear seat. The Cooper youth was then 15, the Dickie girl 16. Somewhere along the route of their travel, defendant and her companions sighted and picked up a pedestrian, Don Oakley, then 17, who sat on the right side of the front seat. A few minutes later, as the DeSoto 'was traveling through the high school field,' some boys 'yelled at it'; and defendant responded by turning around and stopping, headed north, at the east curb near the driveway into the house situate at 306 North Walter Street. Five boys, two of whom were 15 years of age, two 16, and one 18, were in the yard at that address. 'They yelled and came running out, and David Haire (in the DeSoto) hollered, 'Hey, Mike,' and he (plaintiff) came running up there, all those boys did . . ..' Marion Meredith, then 18, 'jumped on the front of the car' and either sat 'on the front right fender and part of the hood' or, as defendant's passenger-witness Pat Dickie stated, 'was on the hood of the car facing the window (windshield), up on his knees, with his hands up on the top of the car.' Plaintiff, then 16, climbed onto the trunk lid of the DeSoto and, in the words of defendant's passenger-witness David Cooper, 'set with his feet up under him, sort of in a squat, with his back to the back glass (rear window).' No one in the DeSoto said or did anything to invite either plaintiff or Marion Meredith to jump or climb onto the automobile, and there was no occasion for either youth to do so.

Concerning what occurred during the 'few seconds' or 'few minutes' or 'small amount of time' the DeSoto remained stationary, we are informed only (a) by witness Ryan Goodman, one of the youths in the yard who did not jump onto the automobile, that 'first they talked and they had got on the car' and (b) by witness Meredith that, after he and plaintiff had climbed onto the DeSoto, 'I believe Mike (plaintiff) was the one that was talking to them, because I think he knew them, I'm not sure.' Then David Haire, sitting beside defendant, told her to 'floor it' and immediately thereafter, without warning of any nature, defendant 'took off.' As to where she had intended to go, defendant replied 'I don't know, I was just going riding . . . I didn't have any place in mind . . . I didn't have any reason.' With respect to Meredith's position on the hood, defendant said 'I guess it was okay, he looked safe to me' and conceded that she had no objection to his riding there. Averring that she had not looked in her rear vision mirror before starting and denying any knowledge of plaintiff's position on the trunk lid, defendant responded to the inquiry whether it was 'all right with you for Day (plaintiff) to be on the car' in this fashion, 'if I would have known he was up there it might have been.'

Plaintiff's evidence was to the effect that defendant 'took off pretty fast' or 'rather fast,' 'accelerated rather quickly'--'as fast as it (the DeSoto) would go,' and had attained a speed estimated by two of plaintiff's witnesses at 35 to 40 miles per hour, by another at 35 miles per hour, and by a fourth at 30 miles per hour, all of which speeds were in excess of the speed limit of 25 miles per hour on Walter Street, before plaintiff 'swinging his arms' and 'trying to hold his balance on the back of the car' fell off the DeSoto, rolled on the concrete pavement, struck his head, and came to rest unconscious. Defendant's showing was to the effect that she 'just started rolling off' and 'took off normal'--'it wasn't fast at all,' and that the DeSoto had attained a speed estimated by two of her witnesses at 10 to 15 miles per hour and by defendant herself as having been 'at least 15 miles an hour,' before plaintiff 'scooted down on the back of the car' and jumped off. The point at which plaintiff fell or jumped off the DeSoto was about even with the driveway into the house situate at 310 North Walter on the second lot north of the house in front of which he had climbed onto the trunk lid. Those lots were '75 feet, something like that, 50 feet' in width.

Of the submissibility of plaintiff's case. Defendant's primary point that plaintiff did not present a submissible case of actionable negligence on the part of defendant is predicated on the premise that plaintiff was an undiscovered trespasser on the DeSoto to whom no duty was owed. On the undisputed testimony, plaintiff was indeed a trespasser, i.e., one who enters onto another's property, whether it be realty or personalty of such nature as to be subject to trespass, without any right, lawful authority, or express or implied invitation or license (65 C.J.S. Negligence § 63(3)a, p. 659; Twine v. Norris Grain Co., 241 Mo.App. 7, 15, 226 S.W.2d 415, 420(3)); but we are unable to say, as a matter of law, that he was an undiscovered trespasser. True, defendant testified upon trial that she first learned that plaintiff had been on the rear of the DeSoto 'when someone hollered inside the car that he had jumped.' However, we recall the above-noted testimony (a) of defendant herself that, when the DeSoto stopped in front of 306 Walter, her seatmate David Haire 'hollered, 'Hey, Mike,' and he (plaintiff) came running up there,' (b) of witness Goodman that, while the DeSoto remained stationary, 'first they talked and they had got on the car,' (c) of witness Meredith that 'I believe Mike (plaintiff) was the one that was talking to them . . .' after he and plaintiff had scrambled onto the DeSoto, and (d) of witness Cooper that plaintiff climbed onto the trunk lid and sat 'sort of in a...

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