Dodson v. Maddox

• Decision Date: 12 September 1949
• Docket Number: 41196
• Citation: 223 S.W.2d 434,359 Mo. 742
• Parties: Elvin Dodson, Respondent, v. W. E. Maddox and I. J. Albright, d/b/a W.E. Maddox Oil Company, Appellants
• Court: Missouri Supreme Court

223 S.W.2d 434

359 Mo. 742

Elvin Dodson, Respondent, v. W. E. Maddox and I. J. Albright, d/b/a W.E. Maddox Oil Company, Appellants

No. 41196

Supreme Court of Missouri

September 12, 1949

Motion for Rehearing or to Transfer to Banc Overruled October 10 1949.

Appeal from Jasper Circuit Court; Hon. Walter E. Bailey Judge.

Affirmed.

SYLLABUS

Defendants' gasoline transport went into a ditch and overturned on a Kansas highway, spilling gasoline which ignited and burned plaintiff as he was trying to extricate the driver. Plaintiff made a submissible res ipsa loquitur case which was not barred by an allegation of specific negligence in another count, by any evidence of the specific cause, or by the fact that the doctrine could not be applied in the Kansas courts to the facts in issue. There was a jury issue of proximate cause. Plaintiff's instruction was not erroneous. The verdict was not excessive.

Roy Coyne, Richard K. McPherson, Ralph E. Baird, Arthur C. Popham and Sam Mandell for appellants; Popham, Thompson, Popham, Mandell & Trusty, of counsel.

(1) Plaintiff was injured in the State of Kansas and his substantive rights are governed by the laws of that state. Hall Motor Freight v. Montgomery, 212 S.W.2d 748. (2) Under the law of Kansas the driver of a motor vehicle is held only to the exercise of ordinary care. Watkins v. Byrnes, 117 Kan. 172, 230 P. 1048; Hall Motor Freight v. Montgomery, supra. (3) If the courts of Kansas have not ruled any particular substantive point involved then the courts of Missouri will apply their own decisions presuming that the general principles of common law, as announced by the courts of Missouri, prevail in Kansas. Rositzky v. Rositzky, 329 Mo. 662, 46 S.W.2d 591; Rashall v. St. Louis, Iron Mountain & So. Ry. Co., 249 Mo. 509, 155 S.W. 426; Gray v. Metropolitan Life Ins. Co., 150 S.W.2d 563. (4) Plaintiff's evidence conclusively showed that defendants' truck skidded off the road; skidding of a motor car is, in and of itself, not negligence, and it is as consistent with the care as with negligence of the driver, and it may, and as a matter of experience does, occur without fault. Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872; Story v. People's Motor Bus Co., 327 Mo. 719, 37 S.W.2d 898; Heidt v. People's Motor Bus Co., 219 Mo.App. 683, 284 S.W. 840. (5) Plaintiff is conclusively bound by his judicial admission made in Count Two of his petition that the proximate cause of the fire was Howard's act of jerking a live electric wire loose from the heater in the cab; plaintiff offered no proof in support of his charge. Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644; Ervin v. Davis, 355 Mo. 951, 199 S.W.2d 366; Creighton v. Mo. Pac. R. Co., 299 Mo.App. 325, 66 S.W.2d 980; Hoeller v. St. Louis Pub. Serv. Co., 199 S.W.2d 7; Fassi v. Schuler, 349 Mo. 160, 159 S.W.2d 744; Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471; Henneke v. Gasconade Power Co., 236 Mo.App. 100, 152 S.W.2d 667; Mo. R.S.A., sec. 847.42. (6) Plaintiff's evidence showing Howard in extreme peril, coupled with plaintiff's judicial admission of proximate cause, showed no negligence present as a matter of law. Ransom v. Union Depot Co., 142 Mo.App. 361, 126 S.W. 785; Stack v. General Baking Co., 283 Mo. 396, 223 Mo. 89; Barnhart v. Glycerine Co., 113 Kan. 136, 213 P. 663. (7) Conceding only for argument but not admitting that negligence was shown merely because the truck and its tank overturned, plaintiff's evidence showed his injuries were caused by the fire which later occurred, the separate, intervening and proximate cause of his injuries, and plaintiff offered no proof of causation of the fire, or any evidence of defendants' negligence in such causation. State ex rel. Rosanbalm v. Shain, 349 Mo. 27, 159 S.W.2d 582; Wright v. Kansas City Structural Steel Co., 236 Mo.App. 872, 157 S.W.2d 582; Home Oil & Gas Co. v. Dabney, 79 Kan. 820, 102 P. 488; Kinderknecht v. Hensley, 160 Kan. 637, 164 P.2d 105; Beldon v. Hooper, 115 Kan. 678, 224 P. 34. (8) The record does not show that defendants were guilty of negligence toward their deceased driver, Howard, who was in peril, when plaintiff volunteered to help him, and so defendants were not guilty of negligence to plaintiff, and he cannot recover. Donahoe v. Wabash, St. Louis & Pac. R. Co., 83 Mo. 560; Eversole v. Wabash R. Co., 249 Mo. 523, 155 S.W. 419. (9) Plaintiff was not entitled to a res ipsa instruction basing negligence on the mere fact that the truck left the road. Vesper v. Ashton, 233 Mo.App. 204, 118 S.W.2d 84; Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471; Mackler v. Barnett, 49 S.W.2d 244; Adams v. LeBon, 236 Mo.App. 899, 160 S.W.2d 826; Palmer v. Brooks, 350 Mo. 1055, 169 S.W.2d 906; Restatement, Conflict of Laws, sec. 595. (10) Plaintiff was not entitled to res ipsa submission predicating negligence merely because the fire occurred. Starks Food Markets v. El Dorado Refining Co., 156 Kan. 577, 134 P.2d 1102. (11) The verdict of Twenty Thousand Dollars ($ 20,000) was so excessive as to show prejudice on the part of the jury. Goslin v. Kurn, 351 Mo. 395, 173 S.W.2d 79.

Columbia, Markham & Smith and Seiler, Blanchard & Van Fleet for respondent.

(1) Respondent made a submissible case, and is entitled to recover herein, on his showing that his injuries were received without fault on his part, in an effort to rescue appellants' admitted agent and servant from a position of peril into which the agent and servant had negligently placed himself. Smith v. City Ice & Fuel Co., 117 Kan. 485, 232 P. 603; Carney v. Chicago, R.I. & P.R. Co., 323 Mo. 470, 23 S.W.2d 993; Donahoe v. Wabash, St. L. & P. Ry. Co., 83 Mo. 560; Butler v. Jersey Coast News Co., 109 N.J.L. 255, 160 A. 659; Brugh v. Bigelow, 310 Mich. 74, 16 N.W.2d 668; Carney v. Buryea, 271 A.D. 338, 65 N.Y.S. (2d) 902; Lynch v. Fisher, 34 So.2d 513; Arnold v. Northern States Power Co., 209 Minn. 551, 297 N.W. 182; Wagner v. Internatl. R. Co., 232 N.Y. 176, 133 N.E. 437, 19 A.L.R. 1. (2) The proximate cause of respondent's injuries was the original negligence of appellants' servant in overturning the transport and spilling its inflammable contents along a public highway, thereby negligently creating a condition without which there would have been no injury; and this negligence was still a proximate cause of respondent's injuries even though an intervening act, careless or not, ignited the gasoline, because the ignition of the gasoline by an intervening act, and injury therefrom, was reasonably foreseeable, and such intervening act, whether careless or not, was not a superseding cause of respondent's injuries. Rowell v. City of Wichita, 162 Kan. 294, 176 P.2d 590; Thummel v. State Highway Comm., 160 Kan. 532, 164 P.2d 72; Clark v. Powder Co., 94 Kan. 268, 146 P. 320; Pinson v. Young, 100 Kan. 452, 164 P. 1102; Neiswender v. Shawnee County Commrs., 151 Kan. 574, 101 P.2d 226; 22 Am. Jur., 147, sec. 22; Newton v. Texas Co., 105 S.E. 433. (3) Respondent was entitled to rely on the res ipsa loquitur doctrine, under the facts and circumstances shown in the record, to establish the negligence of appellants' servant in causing or permitting the transport to go into the ditch and overturn, thereby negligently creating his own position of peril and negligently setting up the condition without which there would have been no fire and no injury to respondent. Truhlicka v. Beech Aircraft Corp., 162 Kan. 535, 178 P.2d 252; Sipe v. Helgerson, 159 Kan. 290, 153 P.2d 934; Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471; Jerabek v. Safeway Cab, T. & S. Co., 146 Kan. 859, 73 P.2d 1097; Leinbach v. Pickwick Greyhound Lines, 135 Kan. 40, 10 P.2d 33; Ash v. Gibson, 146 Kan. 756, 74 P.2d 136; Etheridge v. Etheridge, 24 S.E.2d 477; Reibert v. Thompson, 302 Ky. 668, 194 S.W.2d 974; McCloskey v. Koplar, 329 Mo. 574, 46 S.W.2d 557. (4) Considering the nature, extent and duration of respondent's injuries, his pain and suffering, his special damages, and his permanent injury, the verdict in his favor is not excessive, but very moderate.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action for damages for personal injuries. Verdict and judgment were for plaintiff for $ 20,000 and defendants have appealed.

On February 25, 1946, defendants' loaded gasoline transport, tractor and trailer, traveling east on Highway 166 in Labette County, Kansas, left the traveled portion of the highway and collided with an embankment on the north side of the road. The driver (Howard) was caught in the cab of the tractor. The trailer tank broke loose from the tractor and turned over on its side spilling gasoline over the highway and under the tractor. In response to the driver's calls for help, plaintiff went to his aid and was trying to release him, when the gasoline took fire. The transport and driver burned and plaintiff received serious injuries.

The petition was in two counts, both based on general negligence under the res ipsa loquitur doctrine. The second count further contained a charge of specific negligence, happening subsequent to the original negligence, as an alleged concurring cause of plaintiff's injuries.

Error is assigned on the court's refusal to direct a verdict for defendants at the close of the case; on the giving of Instruction 1, submitting the cause on the first count under the res ipsa loquitur doctrine; and on an alleged excessive verdict.

After dark, on the evening in question, plaintiff was driving his automobile east on the highway mentioned from Edna, Kansas to his home 1-1/2 miles away. The highway was blacktopped, about 20 feet wide, with one foot shoulders. Plaintiff was driving about forty miles per hour when he heard, about a quarter of a mile behind him, what proved to be the transport...