Gooch v. Lake
| Decision Date | 14 September 1959 |
| Docket Number | No. 2,No. 46727,46727,2 |
| Citation | 327 S.W.2d 132 |
| Parties | Bobby GOOCH, Respondent, v. Donald Dean LAKE, Appellant |
| Court | Missouri Supreme Court |
Don Chapman, Chapman & Chapman, Chillicothe, for appellant.
Walter Allen, Brookfield, Hess & Collins, Macon, for plaintiff-respondent.
Action for damages for personal injuries sustained by Bobby Gooch while riding as a guest-passenger in a motor vehicle (a jeep) operated by Donald Dean Lake. Gooch obtained judgment for $15,000, and Lake has appealed. The parties will be referred to as styled in the trial court.
The casualty occurred on a public street in Marceline about 8 or 8:30 p. m., on July 4, 1955, when the jeep being driven by defendant southward on Kansas Avenue at a high rate of speed overtook, and ran into the rear end of, a Chevrolet being driven in the same direction by Mrs. Geneva Bailey on her own, or right-hand, side of said street which, at this place, was straight and gradually downgrade in the direction being traveled. The relevant facts will be stated in connection with the points to which they relate.
Defendant's points go only to the instructions and the amount of the verdict, the first of which is directed against the giving of plaintiff's instruction No. 4, reading as follows:
'The Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in evidence the defendant was driving a jeep-automobile in a southerly direction on Kansas Avenue in Marceline, Missouri, that the street at that place was gradually down grade and straight, that on this particular occasion it was dark, and
'If you further find and believe from the evidence that Bobby Gooch was riding as a guest in the jeep-automobile and was exercising ordinary care for his own safety, and did not control, or have any right to control, the operation thereof, and that the said jeep-automobile was behind and approaching a Chevrolet automobile being driven by Geneva Bailey in a southerly direction upon the right hand side of said Kansas Avenue, and if you further find that defendant negligently caused, allowed and permitted said jeep-automobile to run into, strike and into collision with the rear end of the Chevrolet automobile at said time and place, and that as a direct and proximate result thereof plaintiff was injured, then you are instructed that plaintiff is entitled to recover and your verdict should be in favor of Bobby Gooch.'
It is charged that the instruction is erroneous for these reasons: (1) As being broader than the pleadings; (2) as not within the issues raised by the pleadings; and (3) as submitting 'general negligence, whereas the petition contains charges of specific negligence.' The first two of these are so closely akin as to be practically equivalents. Both are based on the fact that the petition did not aver the particular part of the Chevrolet with which defendant's vehicle came in contact, but notwithstanding such omission the instruction submitted the hypothesis of a collision 'with the rear end of the Chevrolet.' The recitals of the petition and instruction in these respects, and upon which defendant's objections are based, are these:
Petition
'* * * [T]he said Donald Dean Lake * * * carelessly and negligently caused, allowed, and permitted the vehicle, then and there being operated by him, to collide with a motor vehicle then and there being operated by one Geneva Bailey, who was then and there operating a vehicle along said Kansas Avenue, and on the right hand side thereof in the same direction as defendant was operating his motor vehicle.'
'* * * [I]f you further find that defendant negligently caused, allowed and permitted said jeep-automobile to run into, strike and [come?] into collision with the rear end of the Chevrolet automobile at said time and place, * * *.'
As will be seen, there is a marked want of contrast between these recitals. Full proof of the fact of a collision would necessarily include not only a showing as to the manner in which the same occurred, but also the particular point or points of contact. We fail to see how defendant could have been prejudiced. Moreover, proof of the fact of a rear-end collision came in wholly without objection, and was uncontradicted. In such a situation the following statutory rule applies: 'When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.' Section 509.500 RSMo 1949, and V.A.M.S.
The last objection to the instruction is that it 'submits general negligence, whereas the petition alleges specific negligence.' We need not elaborate on this point because the allegations of specific negligence here referred to by defendant were those having to do with speed and lookout, both of which were abandoned in the submission. This leaves defendant in the position of expressly avowing that the petition's other allegations of negligence (hereinabove excerpted in part) and the submission of the same by instruction No. 4 () were upon the theory of general negligence, thus undercutting the ground of attack now urged. However, we do not regard such other negligence allegations of the petition (last above mentioned) nor instruction No. 4 as being based upon or embodying the theory of general negligence, but directly to the contrary, i. e., specific negligence. Comparable allegations and hypothesizations were presented in Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914, where the conclusion just indicated was reached. The doctrine is more fully elucidated in Chiodini v. Terminal R. Ass'n, Mo.App., 287 S.W.2d 357. See, also, State ex rel. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68.
Plaintiff's instruction No. 6 on the measure of damages submitted as elements to be considered in arriving at the amount of plaintiff's damage, the following: (1) The injuries sustained by him, if any; (2) the physical and mental pain and anguish endured by him on account of said injuries, if any; (3) such loss of earnings as he has sustained since becoming twenty-one years of age; and (4) future loss of earnings, if any. The submission of the element of loss of earnings since becoming of age is assailed as being broader than the evidence in that there was no evidence as to such loss of earnings, Plaintiff became twenty-one years of age on October 31, 1955, following his injury on July 4 of that year. He returned to the University of Missouri in the middle of September 1955 and attended the whole of that school year as a senior. He had previously played football at the University during his freshman, sophomore and junior years, lettering in the latter two. He was on a No. 1 athletic scholarship until he was hurt, the value of which was a minimum of $925 for the school year. It included room, board, tuition, and, in addition, the right to work (for the University?) for $15 a month. Because of his injuries he was not able to play football during his senior year, and in consequence lost the scholarship. In the seven and one-half months after his twenty-first birthday until the end of the school year, the monetary value of the scholarship thus lost amounted to $870.77. There was no evidence of any other loss of earnings up to the time of trial. The defendant argues that the scholarship was a gratuity, and not earnings, and plaintiff counters with the proposition that if this were true, the fact that he could not play football during his senior year would have made no difference--he would have received the scholarship anyway. We think the fact that when he could no longer play football, he could no longer get the benefit of the scholarship, sufficiently demonstrates, as a practical matter, that the monetary value of the scholarship should be regarded as earnings, and having actually lost the amount indicated, it was not error to submit this element.
Defendant contends it was error to submit the element of loss of future earnings because there was no evidence of what the plaintiff would lose in the way of earnings in the future, and because there was no evidence that plainti...
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...under the evidence, whether pleaded or not. And see, Sec. 509.500 RSMo 1959 and V.A.M.S.; Civil Rule 55.54 V.A.M.R.; Gooch v. Lake, Mo., 327 S.W.2d 132, 134. We first consider whether Instruction No. 1 submitted that theory of negligence, as plaintiff insists it did. When Instruction No. 1 ......
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...as a submission on specific negligence [State ex rel. Spears, supra, 357 Mo. loc. cit. 691, 210 S.W.2d loc. cit. 70(2); Gooch v. Lake, Mo., 327 S.W.2d 132, 134(3); Witherspoon v. Guttierez, Mo., 327 S.W.2d 874, 880(5)], the rear-end doctrine being defined as the 'rule' recognizing that 'if ......
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