Gavin v. Forrest

• Citation: 72 S.W.2d 177,230 Mo.App. 662
• Parties: CATHERINE GAVIN, RESPONDENT, v. STANLEY FORREST AND WEISSENBORN COAL COMPANY, A CORPORATION, APPELLANTS
• Decision Date: 05 June 1934
• Court: Court of Appeal of Missouri (US)

72 S.W.2d 177

230 Mo.App. 662

CATHERINE GAVIN, RESPONDENT, v. STANLEY FORREST AND WEISSENBORN COAL COMPANY, A CORPORATION, APPELLANTS

Court of Appeals of Missouri, St. Louis

June 5, 1934

Appeal from the Circuit Court of City of St. Louis.--Hon. Granville Hogan, Judge.

Judgment affirmed.

Wilton D. Chapman for appellants.

(1) In order to submit to the jury a case bottomed upon the humanitarian or last-chance doctrine, it would have been necessary to show affirmatively that the driver of the coal truck, by the exercise of the highest degree of care, with the means and appliances at hand with reasonable safety to himself and the occupants of said truck could have stopped slackened the speed, or have turned said truck so as to avoid the injury complained of. This plaintiff failed to do, hence the court erred in submitting the case to the jury on that theory. Bibb v. Grady, 231 S.W. 1020; Murray v St. Louis Iron Wire Co., 238 S.W. 838; Warner v Railway Co., 178 Mo. 125; Chappell v. United Railways, 174 Mo.App. , 156 S.W. 819; Spiro v. St. Louis Transit Co., 102 Mo. App., l. c. 262; Fleming v. Ry. Co., 263 Mo. 180, 172 S.W. 355; Dey v. United Railways Co., 140 Mo.App. 461; Miller v. Wilson, 288 S.W. 997, 999. (2) (a) The appellants' motion for a new trial should have been sustained upon the ground that respondent's instruction No. 1 was erroneously given, since the evidence given by the respondent does not justify the submission of any question of violation of the humanitarian doctrine. McCoy v. Home Oil & Gas Co., 60 S.W.2d, l. c. 722; Pollinger v. Messerschmidt, 260 S.W. 804; Deane v. St. Louis Transit Co., 192 Mo.App. 584, 91 S.W. 505; Hawkins v. Wells, 297 S.W. 193, 196; Goodson v. Schwandt, 300 S.W. 795. (b) The court erred in failing to give and read to the jury appellants' instructions A, B and C, because the instruction No. 1, given on behalf of the respondent, submitted also an issue of primary negligence and the refusal of appellants' abovenamed instructions to be read and given to the jury debarred the appellants of the jury's consideration of the contributory negligence pleaded. Disano v. Hall, 14 S.W.2d, l. c. 485; Hopkins v. Sweeny, 196 S.W. 772. (3) The court erred in failing to sustain appellants' motion for a new trial on the ground that fraud, deceit, perjury and untruthful testimony was given on a material point which influenced and prejudiced the jury against the appellants, and it would be fraud upon the court and a fraud upon the appellants to allow respondent to secure an unjust judgment through perjured testimony, and the court has inherent power to prevent itself from being so prostituted, so long as it has jurisdiction over the cause. Scott v. Power Company, 168 Mo.App. 527, 153 S.W. 1058; Ridge v. Johnson, 129 Mo.App. 541, 107 S.W. 1103; Byrd v. Vanderburgh, 168 Mo.App. 112; Dean v. Railroad, 229 Mo. 452; Lovell v. Davis, 52 Mo.App. 342; Asadorian v. Sayman, 282 S.W. 507; Thompson v. B. Nugent, 17 S.W.2d 596.

Eagleton, Henwood & Waechter and Frank P. Aschemeyer for respondent.

(1) Instruction No. 1 is amply supported by the evidence and was properly given: (a) Upon a consideration of the sufficiency of the evidence to justify the instruction plaintiff is entitled to the benefit of all the favorable evidence in the case, together with all of the favorable inferences that may reasonably be drawn therefrom. In passing upon the sufficiency of the evidence the court has no right to consider the credibility of the witnesses or the weight of the testimony. Erxleben v. Kaster, 21 S.W.2d 195; Jageles v. Berberich, 20 S.W.2d 577; Thomasson v. West St. Louis Water & Light Co., 278 S.W. 979; Nagle v. Alberter, 53 S.W.2d 289; Hunt v. Gus Gillerman Iron & Metal Co., 39 S.W.2d 369; Guthrie v. Gillespie, 319 Mo. 1137, 6 S.W.2d 886. (b) There is substantial evidence to support the finding that defendants could have discovered deceased's position of peril and could thereafter have stopped, slackened the speed of or swerved their truck so as to avoid injury to the deceased. Banks v. Morris, 302 Mo. 254, 257 S.W. 482; Quinn v. Berberich, 51 S.W.2d 153; Benson v. Smith, 38 S.W.2d 743; Nagle v. Alberter, 53 S.W.2d 289; Cox v. Reynolds, 18 S.W.2d 575; Althage v. People's Motorbus Co., 8 S.W.2d 924; Webb v. Cox, 53 S.W.2d 1057; Hodgins v. Jones, No. 22,549 (not yet reported). (c) Defendants owed deceased the duty of exercising the highest degree of care to prevent injury to him under the humanitarian doctrine. Iman v. Walter Freund Bread Co., 58 S.W.2d 477; Gude v. Weick Bros. Undertaking Co., 16 S.W.2d 59; Bruce v. East Side Packing Co., 6 S.W.2d 986. (2) Defendants' instructions A and B were properly refused. Since the case was submitted to the jury solely under the humanitarian doctrine, contributory negligence was no longer an issue. Sillman v. Munger Laundry Co., 44 S.W.2d 159; Schulz v. Smercina, 318 Mo. 486, 1 S.W.2d 113, 120; Gray v. Columbia Terminals Co., 52 S.W.2d 809. (3) Defendants' instruction C was properly refused: (a) Error cannot be predicated upon the refusal of an instruction unless it is correct in all particulars. Linton v. St. Louis Lightning Rod Co., 285 S.W. 183; Kilcoyne v. Metz, 258 S.W. 4. (b) It was abstract in form and so drawn that the jury could not intelligently apply it to the facts. Span v. Jackson-Walker Coal & Min. Co., 16 S.W.2d 190; Lewis v. Kansas City Public Service Co., 17 S.W.2d 359; Rice v. Gray, 225 Mo.App. 890, 34 S.W.2d 567. (c) It is confusing and misleading, and ignores the defendants' duty to exercise the highest degree of care to avoid the injury after defendants could have known of the impending peril. Banks v. Morris, 302 Mo. 254, 257 S.W. 482; Quinn v. Berberich, 51 S.W.2d 153, 155; Jageles v. Berberich, 20 S.W.2d 577; Causey v. Wettig, 11 S.W.2d 11. (4) The matter of granting a new trial on the ground of perjury of a witness is directed to the discretion of the trial court, and this court cannot disturb the trial court's ruling unless it clearly appears that such discretion has been abused and arbitrarily exercised. That no such abuse of discretion appears in this record is clear, and particularly since defendants, and not plaintiff, produced the witness who is claimed to have perjured herself. Robinson v. C. B. & Q. R. Co., 38 S.W.2d 514; Davis v. Quermann, 22 S.W.2d 58; Brand v. Herdt, 45 S.W.2d 878; Asadorian v. Sayman, 282 S.W. 507; Byrd v. Vanderburgh, 168 Mo.App. 112; Collison v. Eads, 211 S.W. 715.

McCULLEN, J. Hostetter, P. J., and Becker, J., concur.

OPINION

McCULLEN, J.

This is a suit for damages brought by respondent, hereinafter referred to as plaintiff, for the death of her husband. The suit was originally instituted against three defendants. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff and against the three defendants, in the sum of $ 7500. Defendants Stanley Forrest and Weissenborn Coal Company bring the case to this court by appeal. Defendant George Thomas did not appeal.

Plaintiff's amended petition alleged that she and Thomas Gavin were lawfully married and were living together as man and wife on November 6, 1930, on which date the said Thomas Gavin was injured and killed; that Whittier Street and Kennerly Avenue were open and public streets in the City of St. Louis, Missouri; that Whittier Street runs north and south, and Kennerly Avenue runs east and west and intersects Whittier Street. The petition charged that defendants Stanley Forrest and Weissenborn Coal Company were the owners of a coal truck which was being driven northwardly on Whittier Street; that defendant George Thomas was the operator of a Lincoln car, which was being operated eastwardly on Kennerly Avenue; that plaintiff's husband was the owner of a Ford coupe, which was being driven southwardly upon Whittier Street.

Plaintiff alleged that on the date mentioned, while her husband was driving the Ford coupe southwardly on Whittier Street, the coupe was collided with by the Lincoln car driven by defendant George Thomas; that thereafter the Ford coupe was struck by the coal truck operated by defendants Stanley Forrest and Weissenborn Coal Company, through their agent and chauffeur, as a result of which plaintiff's husband was thrown from the Ford coupe and was later struck and run over by said truck, causing him to sustain such injuries that he was immediately killed.

The amended petition contained five assignments charging negligence against all of the defendants. The fifth assignment of negligence charged negligence under the humanitarian doctrine for failure of defendants to stop, slacken the speed of, or swerve their automobiles so as to avoid the collision with the Ford coupe.

The separate amended answer of defendants Stanley Forrest and Weissenborn Coal Company contained a general denial, coupled with a plea of contributory negligence, charging that plaintiff's husband negligently operated his automobile at a high, excessive and dangerous rate of speed under the circumstances, and at such a rate of speed as to endanger the life and limb of persons on the street, including himself that plaintiff's husband negligently failed to exercise the highest degree of care to discover defendant George Thomas and his Lincoln automobile upon the street; that he negligently failed to keep his automobile under such control that it could be readily and reasonably stopped; that he negligently failed to swerve his automobile so as to avoid the collision, but on the contrary, negligently did swerve it so as to cause the collision; that he negligently failed to sound his horn or give any signal of the approach of his automobile at said intersection, when, in the exercise of the highest degree of care he could have done so and thereby could have...