Fisher v. Ozark Milk Service

• Citation: 201 S.W.2d 305,356 Mo. 95
• Decision Date: 10 March 1947
• Docket Number: 39917
• Parties: Secord Fisher, (Plaintiff) Respondent-Appellant, v. Ozark Milk Service, Inc., a Corporation, (Defendant) Appellant-Respondent
• Court: Missouri Supreme Court

201 S.W.2d 305

356 Mo. 95

Secord Fisher, (Plaintiff) Respondent-Appellant, v. Ozark Milk Service, Inc., a Corporation, (Defendant) Appellant-Respondent

No. 39917

Supreme Court of Missouri

March 10, 1947

Rehearing Denied April 21, 1947.

Appeal from Circuit Court of City of St. Louis; Hon. James F Nangle, Judge.

Affirmed.

Everett Hullverson and Alfred I. Harris for plaintiff-appellant; Orville Richardson of counsel.

(1) A charge of negligence under the humanitarian doctrine and a charge of primary negligence are not necessarily inconsistent and both may be submitted to a jury if, under the evidence upon which plaintiff is entitled to rely, mutual inconsistence does not appear. Haley v. Mo. Pac. Ry Co., 197 Mo. 15, 93 S.W. 1120; Beal v. Chicago B. & Q.R. Co., 285 S.W. 482, 487 [14]; State ex rel Tunget v. Shain, 340 Mo. 434, 101 S.W. 2d 1, 3 [5-8]. (2) "Mutual inconsistence" means that evidence tending to prove one assignment will necessarily disprove the other. Charges are not mutually inconsistent if both are substantially supported by the same consistent set of facts. State ex rel. Thompson v. Shain, 349 Mo. 27, 159 S.W.2d 582; Bumgardner v. St. L. Pub. Serv. Co., 340 Mo. 521, 102 S.W.2d 594. (3) Primary negligence is consistent with negligence under the humanitarian doctrine "if the evidence was sufficient to authorize the submission of both." Williams v. St. Louis Pub. Serv. Co., 355 Mo. 335, 73 S.W.2d 199; -- or "if they might both be true," Haley v. Mo. Pac. Ry. Co., 197 Mo. 15, 93 S.W. 1120, -- or if proof of one will not necessarily disprove the other, State ex rel. Thompson v. Shain, 349 Mo. 27, 159 S.W.2d 582, -- or if the duties are independent, may co-exist or concur. Hillis v. Home Owners' Loan Corp., 348 Mo. 601, 154 S.W.2d 761. (4) The defendant's negligent failure to stop after discoverable peril arose was not necessarily inconsistent with its failure to have the brakes in good working condition. Hillis v. Home Owners' Loan Corp., 348 Mo. 601, 154 S.W.2d 761. (5) There was substantial evidence to support one consistent set of facts under which defendant was guilty of primary and humanitarian negligence. This is true no matter which one of the two versions of the collision is adopted, since each presented a consistent state of facts warranting the submission of both charges. Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950; Courtney v. Ocean Accident & Guarantee Corp., 346 Mo. 703, 142 S.W.2d 858; Heitz v. Voss Truck Lines, Inc., 175 S.W.2d 583; Sing v. St. Louis-S.F. Ry. Co., 30 S.W.2d 37. (6) Plaintiff, a mere passenger in one of the automobiles, caught only a fleeting glimpse of the truck. Therefore, if there were two different versions of the collision, he could rely upon either version for any one consistent set of facts supporting a submission of both charges of negligence. Atterbury v. Temple Stephens Co., 353 Mo. 5, 181 S.W.2d 659; Summa v. Morgan Real Estate Co., 350 Mo. 205, 165 S.W.2d 390. (7) Under the Ramey-Weeks version of the collision the truck was traveling 20 m.p.h. and was 58 feet away when plaintiff entered a zone of discoverable imminent peril. The brakes were so defective as to require 35 feet to stop when the truck with good brakes could have been stopped in a distance variously estimated as 6, 10 and 20 feet. The brakes were actually applied when the truck was 21 feet away. Therefore, one consistent set of facts supported both charges of negligence, and each was properly submitted to the jury. (8) As to the charge concerning brakes: Anderson v. Asphalt Distributing Co., 55 S.W.2d 688; Plannett v. McFall, 284 S.W. 850; Steele v. Thomas, 231 Mo.App. 865, 101 S.W.2d 499; Weisman v. Arrow Trucking Co., 176 S.W.2d 37. (9) As to the humanitarian doctrine: Teague v. Plaza Express Co., 190 S.W.2d 254; Allen v. Kessler, 64 S.W.2d 630.

Wayne Ely for defendant-appellant Ozark Milk Service, Inc.; Everett Hullverson and Alfred I. Harris for respondent-appellant Secord Fisher; Orville Richardson of counsel.

(1) The court did not err in sustaining defendant's motion for a new trial on the ground that instructions 1 and 3 were inconsistent. Instruction 1 permitted the jury to find that defendant violated the humanitarian doctrine by failing to stop its truck when it had control of it, and Instruction 3 permits the jury to find that defendant was negligent because it did not have control of the truck. Both instructions directed a verdict for plaintiff. Crews v. Wilson, 287 S.W. 44; Tunget v. Cook, 84 S.W.2d 970; Elliott v. Richardson, 28 S.W.2d 408. (2) The court erred in giving Instruction 1, which submitted the case to the jury on the humanitarian theory. Elkin v. St. Louis Public Serv. Co., 74 S.W.2d 600; Bauer v. Wood, 154 S.W.2d 356; Miller v. Wilson, 288 S.W. 997; Riggs v. Kansas City So. Rys. Co., 220 S.W. 697; Roseman v. United Railways Co., 251 S.W. 104; Murray v. St. Louis Wire & Iron Co., 238 S.W. 836. (3) The court erred in giving Instruction 3. Instruction 3 permitted the jury to find that defendant was negligent for not providing its truck with "two sets of adequate brakes, kept in good working order," as required by an ordinance of the City of St. Louis. The evidence was insufficient to justify the giving of Instruction 3. The instruction was therefore broader than the evidence and it was error to give it. (4) The court erred in giving Instruction 4, which did not limit the jury to the specific acts of negligence pleaded in plaintiff's petition, but directed the jury to return a verdict for plaintiff if they found that defendant was guilty of any negligence which "contributed and concurred" with any negligence of the driver of plaintiff's automobile "to cause plaintiff's injuries." Esstman v. United Rys Co., 232 S.W. 725; Morris v. Seitrich, 118 S.W.2d 46. (5) There was no evidence that plaintiff's injuries were caused by negligence of defendant concurring and contributing with negligence of the driver of plaintiff's automobile. Esstman v. United Rys. Co., 232 S.W. 725; Morris v. Seitrich, 118 S.W.2d 46. (6) Defendant did not plead or charge that plaintiff was guilty of any negligence, contributory or otherwise, and there was no evidence touching upon the question of plaintiff's negligence. Therefore, Instruction 5 was broader than either the pleadings or the evidence, and raised a false issue in the case. Esstman v. United Rys. Co., 232 S.W. 725; Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872; Morris v. Seitrich, 118 S.W.2d 46. (7) The court erred in refusing to declare a mistrial because of the improper argument, and in refusing to reprimand plaintiff's counsel, or to take other steps to overcome the prejudicial effect of the improper argument. Norris v. St. L.I.M. & S. Ry. Co., 144 S.W.2d 783; Wilson v. Kansas City Public Serv. Co., 193 S.W.2d 5; Olian v. Olian, 332 Mo. 689, 89 S.W.2d 673; Kourik v. English, 340 Mo. 367, 100 S.W.2d 901; Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079, certiorari denied 290 U.S. 701, 54 S.Ct. 229, 78 L.Ed. 693; Domineck v. Western Coal & Mining Co., 255 Mo. 463, 164 S.W. 567; Chitty v. St. L., I. M. & S. Ry. Co., 148 Mo. 64, 49 S.W. 868; Rytersky v. O'Brine, 70 S.W.2d 538; Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463; Tuck v. Springfield Traction Co., 140 Mo.App. 335, 124 S.W. 1079; Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482. (8) The court erred in giving Instruction 9. The evidence shows that plaintiff has lost no earnings, and fails to show that he is reasonably certain to suffer any future loss of earnings. (9) Instruction 9 assumes that plaintiff has incurred or become obligated for medical expense, and permits the jury to find for plaintiff on that account without requiring a finding that he has incurred any expense or become obligated therefor. DeMoulin v. Roetheli & Kroger Grocery & Baking Co., 189 S.W.2d 562; Robertson v. Wabash R. Co., 152 Mo. 352, 53 S.W. 1082; Duke v. Railroad Co., 99 Mo. 347, 12 S.W. 636; State ex rel. Kansas City Public Serv. Co. v. Shain, 350 Mo. 316, 165 S.W.2d 428. (10) The Court did not err in giving Instruction 9 on the measure of damages. Before the accident plaintiff averaged between $ 75 to $ 100 as his share of earnings from a boarding and rooming house partnership in which he did considerable work requiring a sound body and mind. This accident rendered him totally and permanently disabled, an aged, crippled, helpless invalid with a shortened life needing future medical and nursing care. There was an abundance of substantial evidence to support a loss of future earnings. King v. City of St. Louis, 250 Mo. 501, 157 S.W. 498; Devoy v. St. Louis Transit Co., 192 Mo. 197, 91 S.W. 140; Mabrey v. Cape Girardeau & Jackson Gravel Co., 92 Mo.App. 596, 69 S.W. 394; Laycock v. United Railways Co., 290 Mo. 344, 235 S.W. 91; Gildersleeve v. Overstolz, 90 Mo.App. 518; Ganz v. Metropolitan St. Ry. Co., 220 S.W. 490; Northcutt v. St. Louis Public Serv. Co., 48 S.W.2d 89; Sinclair v. Columbia Tel. Co., 195 S.W. 558; Fishang v. Eyerman Contacting Co., 63 S.W.2d 30. (11) Mere proof of permanent injuries, coupled with future pain or impediment of function of the injured part, will authorize a submission of loss of future earnings even without the substantial affirmative showing here made. Byars. v. St. L. Pub. Serv. Co., 334 Mo. 278, 66 S.W.2d 894; Dean v. K.C., St. L. & C.R. Co., 199 Mo. 386, 97 S.W. 910; Taylor v. Terminal Railroad Assn., 112 S.W.2d 944. (12) Even if the evidence was not otherwise substantial, plaintiff was at least entitled to nominal damages, and since the instruction was in proper form defendant's failure to request a limiting instruction disables it from assigning error on appeal. Mabrey v. Cape Girardeau & Jackson Gravel Co., 92 Mo.App. 596, ...