Hamilton v. Patton Creamery Co.

• Decision Date: 11 July 1949
• Docket Number: 41112
• Parties: Estle Hamilton, Respondent, v. Patton Creamery Company and John E. Reed, Appellants
• Court: Missouri Supreme Court

222 S.W.2d 713

359 Mo. 526

Estle Hamilton, Respondent, v. Patton Creamery Company and John E. Reed, Appellants

No. 41112

Supreme Court of Missouri

July 11, 1949

Rehearing Denied September 12, 1949.

Appeal from Greene Circuit Court; Hon. Hiram McLaughlin Judge.

Affirmed (subject to remittitur).

SYLLABUS

As plaintiff motorcycle policeman, who was chasing a speeding motorist, had pulled out to the left for the purpose of passing, defendant's truck made a sudden left turn without giving arm signals and short of the center of a street intersection, and plaintiff collided with the truck. Plaintiff was not conclusively bound by his deposition indicating that he was passing at a street intersection. And failing to keep to the right was not contributory negligence under the circumstances. Turning short of the center of the street was a proximate cause. The reasonable value of medical and hospital bills was not shown, but the error in submitting these items in the instruction on the measure of damages may be cured by remittitur. The verdict was excessive.

Clarence O. Woolsey, Harold J. Fisher and Allen & Woolsey for appellants.

(1) Plaintiff's judicial admission in his deposition that he was passing the defendants' vehicle being a matter of his own special knowledge, on which there was no other testimony, which directly contradicted his testimony at the trial on that issue, and for which contradiction no explanation was made, is conclusive upon him. Steele v. Kansas City So. Ry. Co., 175 S.W. 97, 265 Mo. 177; Goslin v. Kurn, 173 S.W.2d 79, 351 Mo. 395; Partney v. Agers, 187 S.W.2d 743, 238 Mo.App. 764; Ellegood v. Brashear Freight Lines, 162 S.W.2d 628, 236 Mo.App. 971; Adelsberger v. Sheehy, 59 S.W.2d 644, 332 Mo. 954; Stoll v. First Natl. Bank of Independence, 132 S.W.2d 676. (2) Plaintiff was guilty of contributory negligence as a matter of law, for passing defendants' vehicle without a signal, and for passing defendants' vehicle while in or entering an intersection. Jones v. Southwest Pump & Machinery Co., 60 S.W.2d 754; Brown v. Rafferty, 136 S.W.2d 717. (3) Defendants' motion for a directed verdict at the close of all the evidence should have been sustained for the reason that from a consideration of all the evidence favorable to the plaintiff reasonable minds could conclude only that the plaintiff was guilty of contributory negligence as a matter of law. Pashea v. Terminal R. Assn. of St. Louis, 165 S.W.2d 691, 350 Mo. 132; Hamre v. Conger, 209 S.W.2d 242; Suren v. Zuege, 201 N.W. 722, 186 Wis. 264; Moore v. Fitzpatrick, 31 S.W.2d 590; Smiley v. Kenney, 228 S.W. 857; Myers v. Nissenbaum, 6 S.W.2d 993; Bates v. Friedman, 7 S.W.2d 452. (4) The court erred in giving plaintiff's Instruction 1 for the reason that liability cannot be predicated upon a charge of negligence which is not a proximate cause of the injuries. Krelitz v. Calcaterra, 33 S.W.2d 909; Carle v. Akin, 87 S.W.2d 406; Fassi v. Schuler, 159 S.W.2d 774, 349 Mo. 160. (5) The court erred in giving plaintiff's Instruction 3 which allowed the recovery of medical and hospital bills in the absence of any evidence that such charges were reasonable, and because the instruction does not limit the recovery for such damage to a reasonable amount. Murphy v. S.S. Kresge Co., 205 S.W.2d 253. (6) The court erred in excluding from evidence the defendants' Exhibits One and Eight, which were material, competent and relevant evidence bearing on the issues in the case. Gignoux v. St. Louis Public Service Co., 180 S.W.2d 784. (7) The verdict is excessive.

Theodore Beezley for respondent.

(1) Plaintiff's testimony at the trial and in his deposition was substantially the same. There was no essential variance. Even if there was a variance, as claimed by appellants, same was not a judicial admission but only went to plaintiff's credibility as a witness. The rule as contended for by appellants is applied only where a party at a trial testifies to a certain set of facts, and, later, during the same trial testifies to the contrary. Such testimony is cancelled if a reasonable explanation for same is not given. This rule has no application where the conflict arises between testimony given in a deposition and that given at the trial of the case. Moses v. K.C. Public Service Co. and Moses v. City of Independence, 188 S.W.2d 538, 239 Mo.App. 361; Reeves v. Thompson, 211 S.W.2d 23, 357 Mo. 847; Short v. White, 133 S.W.2d 1039, 234 Mo.App. 499; Steele v. K.C. So. Ry. Co., 275 S.W. 756, 302 Mo. 207; Schonlau v. Term. R. Assn., 212 S.W.2d 420. (2) Plaintiff was not guilty of contributory negligence as a matter of law because when a defendant files a motion for directed verdict at the close of the entire case, plaintiff's testimony must be accepted as true, and defendants' testimony, if contradictory, is taken as false, and plaintiff's case is entitled to the benefit of every reasonable inference of fact arising on all the proof. Bates v. Friedman, 7 S.W.2d 452; Yerger v. Smith, 89 S.W.2d 66, 338 Mo. 140; Hein v. Peabody Coal Co., 85 S.W.2d 604, 337 Mo. 626; Gregory v. Jenkins, 43 S.W.2d 877; Story v. People's Motorbus Co. of St. Louis, 37 S.W.2d 898, 327 Mo. 719. (3) Plaintiff's contributory negligence, if any, was a matter of defense, which burden was upon defendant, and where the facts are disputed it is always a question for the jury. Bates v. Friedman, 7 S.W.2d 452; Drake v. Thym, 97 S.W.2d 128, 231 Mo.App. 383, certified to the Supreme Court on another point in 104 S.W.2d 237; Young v. City of Farmington, 196 S.W.2d 124; Trimble v. Price, 282 S.W. 89; Meredith v. Claycomb, 216 S.W. 794; Taylor v. Sesler, 113 S.W.2d 812. (4) The burden is on plaintiff to show that the defendants' negligence in failing to run beyond the center of the intersection and pass to the right thereof before turning, was the proximate cause of the accident and this was shown by the evidence. However, the proximate cause need not be shown by direct and positive testimony, but may be shown by facts and circumstances which fairly suggest that defendants' negligence proximately produced the injuries and afforded a reasonable inference to that effect. Majors v. White, 247 S.W. 233; Bates v. Friedman, 7 S.W.2d 452; Vanausdall v. Schorr, 168 S.W.2d 110; Felber v. Union Electric L. & P. Co., 100 S.W.2d 494, 340 Mo. 201; Robinson v. Mayer, 94 S.W.2d 1067; Anderson v. Asphalt Dist. Co., 55 S.W.2d 688. (5) Plaintiff's Instruction I followed the state statute and similar instructions following the same or other statutes have been given with approval and affirmed by the appellate courts. It followed Section 8385, Paragraph (f), R.S. 1939. Sloan v. Farmer, 168 S.W.2d 467; Majors v. White, 247 S.W. 233; Bates v. Friedman, 7 S.W.2d 452; Robinson v. Mayer, 94 S.W.2d 1067; Kenney v. Hoerr, 23 S.W.2d 96, 324 Mo. 368; Sec. 8385, R.S. 1939, par. (f). (6) Defendants objected to Instruction III, before it was given by the court, specifically on the ground that the amount of the medical expense was not stated in the instruction and that the instruction was so phrased that, under the evidence, the jury was given a roving commission as to the amount which it might find. At no place in this specific objection do defendants raise the points they are now trying to raise under Point (4) of their allegations of error. By specifically objecting to the instruction, even though they could have made a general objection and not have been so confined, they did confine themselves on appeal to the alleged error contained in the specific objection to said instruction, and not having raised this error on appeal, they have abandoned it. Laws 1943, sec. 140, par. (a), p. 395; Mo. R.S.A., sec. 847.140, par. (a); 64 C.J., sec. 739, p. 951; Walsh v. Union Quarry & Constr. Co., 223 S.W. 1082, 205 Mo.App. 159; Young v. Wheelock, 64 S.W.2d 950; McCoy v. St. Joseph Belt Ry. Co., 77 S.W.2d 175. (7) Plaintiff's Instruction III limited the recovery of medical and hospital bills to a reasonable amount, and there was evidence on the question of reasonableness. Sharon v. Kansas City Pub. Serv. Co., 208 S.W.2d 471; Powers v. St. Joseph, 91 Mo.App. 55; Cordray v. City of Brookfield, 88 S.W.2d 161, 334 Mo. 249; Wyse v. Miller, 2 S.W.2d 806, 222 Mo.App. 165; Abbitt v. St. Louis Transit Co., 79 S.W. 496, 104 Mo.App. 534; Nelson v. Met. St. Ry. Co., 88 S.W. 781. (8) If plaintiff's Instruction III, as contended by appellants, did not limit the recovery for such damages to a "reasonable amount," then said instruction was a "general instruction," and appellants should have asked the court, at the time Instruction III was given by the court, for a counter-instruction, limiting the amount of damages that could be recovered for medical and hospital bills. Having failed to do so at that time, they can not now complain on appeal. In such a case there need be no evidence that said bills were reasonable, because the issue of reasonableness was not contained in the instruction. McDonough v. Freund, 19 S.W.2d 285, 323 Mo. 346; Kleinlein v. Foskin, 13 S.W.2d 648, 321 Mo. 887; Smith v. Mederacke, 259 S.W. 83, 302 Mo. 538; Cordray v. City of Brookfield, 88 S.W.2d 161, 334 Mo. 249; Jennings v. Swift & Co., 110 S.W. 21, 130 Mo.App. 391; Sallee v. St. Louis & S.F. Ry. Co., 12 S.W.2d 476, 321 Mo. 798; Bell v. United Ry. Co., 166 S.W. 1100, 183 Mo.App. 334. (9) If the instruction is construed not to include the word "reasonable," the absence of said word did not affect the substantial rights of defendants, so the judgment should not be reversed for such failure. Gorham v. Kansas City & So. Ry. Co., 20 S.W. 1060; Grady v. St. Louis Transit Co., 76 S.W. 673, 102 Mo.App. 212; Bell v. United Ry. Co., 166 S.W. 1100, 183 Mo.App. 334; Gen. Code for Civil Procedure, Laws 1943, Sec. 140, p. 395, Mo. R.S.A., Sec. 847.140,...