Fellows v. Farmer

Citation379 S.W.2d 842
Decision Date05 May 1964
Docket NumberNo. 8245,8245
PartiesHelen FELLOWS, Plaintiff-Respondent, v. Rice FARMER, Administrator of the Estate of Clarence V. Norman, Deceased, Defendant-Appellant.
CourtCourt of Appeal of Missouri (US)

J. W. Grossenheider, Lebanon, for defendant-appellant.

Claude T. Wood, Richland, B. H. Clampett, Springfield, for plaintiff-respondent.

STONE, Judge.

In this jury-tried action for the alleged wrongful death of her husband, Harold L. Fellows, in and as the result of a one-vehicle tragedy, plaintiff Helen Fellows obtained a judgment for $10,000 against Rice Farmer, as administrator of the estate of Clarence V. Norman, deceased. V.A.M.S. Secs. 537.020, 537.080 and 537.090. Defendant appeals.

The accident occurred on Missouri State Highway 28 about two miles south of Dixon in Pulaski County, Missouri, at a highway bridge (approximately fifty feet in length) over McMakin Creek. To avoid confusion as to directions, we will treat of Highway 28 and the bridge as running generally north-and-south, and of McMakin Creek as flowing downstream from east to west under the bridge. Trooper Jim Hudson of the Missouri State Highway Patrol was called about 6:40 P.M. on May 27, 1958, and reached the scene of accident at 7:15 P.M. while it was still 'daylight.' Hudson found a wrecked 1952 DeSoto coach in the creek bed, just upstream or east of the highway bridge and near a vertical concrete wall or 'wing' extending upstream (at right angles to the highway and below its level) at the north end of the bridge to hold and protect the fill and embankment on that side of the creek. The DeSoto was lying 'more or less on its * * * right-hand side,' with its front end headed downstream in a general westerly direction and its wheels 'sticking out' to the south.

There were two men, both dead, in the DeSoto. One of them (so Trooper Hudson said) 'was pinned in the left-hand portion of the car * * * front left-hand portion' and was 'partially' under the steering wheel which had been 'pushed forward.' The other man was on the right side, with 'the uppermost part of his body and his shoulders' out of the automobile and with 'his legs and lower trunk * * * pointed over toward the driver's side' but not under the other man. Witness Moss, a funeral director at Waynesville, Missouri, who drove an ambulance to the scene of accident, similarly described the positions of the two bodies in the DeSoto. Trooper Hudson also testified, with no objection or motion to strike, that from the 'identification they had on them * * * the names they had on their identification' he determined that the man pinned 'partially' under the steering wheel was Clarence Norman (defendant's intestate) and that the man with the upper portion of his body out of the right side of the automobile was Harold L. Fellow (plaintiff's husband). Norman had suffered 'head and chest injuries'--'he had a crushed chest.' Fellows' 'head was crushed' but no chest injury to him was observed by either Hudson or Moss. Because some of the information on the photostatic copy of the certificate of title offered in evidence was illegible, ownership of the DeSoto was not established at the trial, but there was evidence that neither plaintiff nor her deceased husband owned that vehicle.

There is no intimation in the record that anyone witnessed the fatal accident; but, from the physical facts ascertained by Trooper Hudson in his investigation and by him explained upon trial with the aid of photographic exhibits, the jury reasonably might have inferred and found that the accident had occurred in the following manner. The DeSoto, north-bound on Highway 28 which has a two-lane asphalt roadway, had rounded a sharp curve to the left just south of the bridge over McMakin Creek. Apparently traveling at a high rate of speed, the DeSoto had gone off the 'outside' of the curve (i.e., the right-hand or east edge of the pavement) onto the east shoulder of the highway where it made skid marks which continued to the vertical concrete wall or 'wing' extending upstream at the south end of the bridge. Missing the south entrance to the bridge, the DeSoto had scraped the outside (i.e., the east or upstream side) of the concrete post at the south end of the east bridge railing, leaving on the outside of that post a tire mark still visible at the time of trial almost five years later, and then had hurtled through space over the creek bed (most of which was dry) a distance of approximately fifty feet to and against the vertical concrete wall or 'wing' extending upstream at the north end of the bridge, where the automobile left matching paint marks on the concrete wall and fell to rest in the position hereinbefore described.

Plaintiff pleaded and submitted her case on the res ipsa loquitur doctrine. As defined in our Missouri cases, that doctrine is applicable when (1) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care, (2) the instrumentality involved was under the management and control of the defendant, and (3) the defendant possesses superior knowledge or means of information as to the cause of the occurrence. 1 Counsel for instant defendant concedes that the accident under consideration was one which ordinarily would not have happened if the driver had been exercising due care, 2 and 'that the first element which is a requisite of the applicability of the doctrine is present.' (All emphasis herein is ours.) But defendant contends that the trial court erred in refusing to sustain his motion for a directed verdict at the close of all the evidence, because (so counsel asserts) neither the second nor the third element reasonably could be found in this case.

With respect to the second element, defendant's brief presents a two-pronged argument, to wit, (1) that Trooper Hudson's 'identification of the bodies was highly speculative' and (2) that, after the DeSoto left the highway, 'the positions of the men may have changed.' Ergo, any finding that Norman (defendant's intestate) had been driving at the time of accident would amount to 'sheer guesswork, speculation and surmise.' As for the first prong of the argument, Hudson testified positively, with no objection or motion to strike and with no cross-examination on this subject, that from the 'identification they had on them * * * the names they had on their identification' he determined that the man pinned 'partially' under the steering wheel was Norman and that the man with the upper portion of his body out of the right side of the automobile was Fellows (plaintiff's husband). Regardless of whether this evidence might have been excluded upon timely and appropriate objection or motion to strike, its probative worth and effect were for the jury since it was received without such objection or motion; 3 and, with this evidence in the record, we cannot say, as a matter of law, that identification of the bodies found in the wrecked DeSoto was insufficient.

In the second prong of the argument concerning the second element (i. e., that the jury reasonably could not have found that the DeSoto had been under the management and control of defendant's intestate because 'the positions of the men may have changed' after the automobile left the highway), counsel points out 'that an essential element of a plaintiff's case cannot be left to guess or conjecture, or be established by piling inferences' [Antweiler v. Prudential Insurance Co. of America, Mo.App., 290 S.W.2d 652, 654(3)] and reminds us that, although a finding essential to recovery may be proved by circumstantial evidence, such evidence should have a tendency to exclude every reasonable conclusion other than the one desired. Hogue v. Wurdack, Mo.App., 298 S.W.2d 492, 498(12, 13). But the simple statement of these broad general principles does not resolve the question as to whether the evidence in the instant case reasonably permitted a finding that Norman (defendant's intestate) had been driving at the time of accident.

'[T]here is perhaps no question attended with greater uncertainty in its practical application than the question of when recovery may properly be justified in a given case by way of inference from the circumstances. This because of the obvious impossibility of laying down any hard and fast rule which can be applied to each and every situation, and by which it can be determined without room for honest dispute that the circumstances in the particular case are either sufficient or insufficient to warrant a finding of some additional fact as to which there is no direct evidence, but upon which liability may depend.' Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663, 670. Although 'the inference drawn must be reasonable, and may not be arrived at by speculation or conjecture * * * neither is the inference to be precluded by speculation or conjecture, or by a mere possibility that the contrary may be true. * * * Probabilities, not possibilities, are controlling. It is not required that an inference be justified beyond all doubt.' Mauzy v. J. D. Carson Co., Mo.App., 189 S.W.2d 829, 833(4); Pipes v. Missouri Pacific R. Co., Mo. (banc), 338 S.W.2d 30, 36(9). See Elgin v. Kroger Grocery & Baking Co., 357 Mo. 19, 26-27, 206 S.W.2d 501, 506. In short, 'to afford a substantial and sufficient basis for deductive reasoning in the determination of civil issues, circumstantial evidence need not have the quality of absolute certainty * * *.' Ferrell v. Sikeston Coca-Cola Bottling Co., Mo.App., 320 S.W.2d 292, 297(8). With the foregoing in mind, we are of the considered opinion that the evidence in the case at bar was sufficient to permit submission of the issue as to whether Norman (defendant's intestate) had been driving at the time of accident--a conclusion supported by abundant authority from other jurisdictions. 4

Defendant's contention that the third element...

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