Hampe v. Versen

• Decision Date: 02 December 1930
• Citation: 32 S.W.2d 793,224 Mo.App. 1144
• Parties: LOIS HAMPE, A MINOR BY EVA HAMPE, HER NEXT FRIEND, RESPONDENT, v. WALTER VERSEN AND MRS.W. L. VERSEN, HIS WIFE, APPELLANTS
• Court: Missouri Court of Appeals

32 S.W.2d 793

224 Mo.App. 1144

LOIS HAMPE, A MINOR BY EVA HAMPE, HER NEXT FRIEND, RESPONDENT, v. WALTER VERSEN AND MRS.W. L. VERSEN, HIS WIFE, APPELLANTS

Court of Appeals of Missouri, St. Louis

December 2, 1930

Appeal from the Circuit Court of the City of St. Louis.--Hon O'Neill Ryan, Judge.

AFFIRMED.

Judgment affirmed.

Wilbur C. Schwartz, J. Edward Gragg and Charles E. Morrow for appellants.

(1) The court erred in refusing the instructions in the nature of a demurrer to the evidence requested by the defendant, W. L Versen, at the close of plaintiff's evidence, and again at the close of all the evidence in the case. Mr. Versen is not liable for the negligence of his wife while driving his automobile kept for the use of his family and himself when used by the wife on a social mission of her own. Hays v Hogan, 273 Mo. 1; Drake v. Rowan, 272 S.W. 101; Mount v. Narret, 253 S.W. 966; Norton v. Hines, 245 S.W. 346; Bright v. Thacher, 215 S.W. 788; Buskie v. Januchowsky, 218 S.W. 696; Oster v. Railroad, 256 S.W. 826. (2) The court erred in giving instruction No. 1 at the request of the plaintiff. (a) Said instruction submits in the disjunctive an assignment of negligence which directs a verdict, to-wit: "Or that she failed to stop, slacken speed, or swerve said automobile, and she thereby failed to exercise the highest degree of care." The instruction does not require the jury to find that the defendant saw or could have seen any danger to the plaintiff and the law did not require her to stop, slacken speed, or swerve the automobile unless such was present. (b) Said instruction also submits to the jury an assignment of negligence in the disjunctive which directs a verdict. Said instruction in this respect is broader than the allegations of the petition. (c) Said instruction is too long, is repetitious, confusing and misleading, and contains so many if so's and if you so find's that the same cannot be readily understood by the ordinary juror. Henry v. Railroad, 282 S.W. 423; Hegberg v. Railroad, 164 Mo.App. 514; Young v. Ridenbaugh, 67 Mo. 574; Stanley v. Railway Co., 114 Mo. 606; Talbot v. Mearns, 21 Mo. 427; Strother v. Milling Co., 261 Mo. 1; Becraft v. Grist, 52 Mo.App. 586. (3) The court erred in giving to the jury instruction No. 3, at the request of the plaintiff, purporting to submit plaintiff's case under the humanitarian doctrine. (a) Said instruction is broader than the plaintiff's pleading in that the same required the defendant to exercise the highest degree of care to discover plaintiff's peril when the petition charges: "That after said operator saw, or in the exercise of reasonable and due care could and would have seen and known of plaintiff's position and immiment peril." (b) Said instruction is erroneous because it imposes upon the defendant a higher degree of care than that required by law. It required the defendant to exercise the highest degree of care to discover plaintiff's peril and also required the defendant to exercise "a higher degree of care" to avoid injury. The humanitarian doctrine is of common law origin and under it the defendant was only required to exercise ordinary care. Banks v. Morris & Co., 302 Mo. 254; Murphy v. Railroad, 228 Mo. 56; Morgan v. Railroad, 159 Mo. 262; Hanlon v. Railroad, 104 Mo. 388; State ex rel. v. Trimble, 300 Mo. 92; DeGonia v. Railroad, 224 Mo. 564; O'Flaherty v. Railway Co., 45 Mo. 70. (4) The court erred in giving instruction No. 6 at the request of the plaintiff. (a) It erroneously defines "the highest degree of care" to be "that degree of care which a person of the greatest prudence would use under the same or similar circumstances as in this case." Dougherty v. Railroad, 97 Mo. 647; Freeman v. Railway Co., 95 Mo.App. 94; Leslie v. Railway Co., 88 Mo. 75; Feary v. Railroad, 162 Mo. 75; Gilson v. Railway Co., 76 Mo. 282. (b) Said instruction erroneously defines "a high degree of care" as "that degree of care which a person of great prudence would use under the same or similar circumstances as those in this case." (5) The court erred in giving instruction No. 7 at the request of the plaintiff. There was no evidence in this case tending to prove that Mrs. Versen was in charge of and operating the automobile in question on behalf of her husband, and as his agent, or that she was acting within the scope and line of, and under authority from, and as the agent of, and for her husband. (6) The court erred in giving instruction No. 2 at the request of the plaintiff. (a) Said instruction is confusing and misleading and contains so many if so's and if you so find's, and is so long that it cannot be readily understood by the ordinary juror. See authorities under sub-head "c," point 2. (b) Said instruction is further erroneous because it permits a verdict in this case against both defendants when there was no evidence in the case tending to prove liability on the part of the defendant, W. L. Versen.

Ben Philipson and John A. Moore for respondent.

(1) (a) Admission of counsel made in open court with respect to and limiting the issues in a case on trial and conceding liability, excludes the necessity of proof to establish the liability so admitted, precludes the right to a new trial for error affecting only the question of such liability and, on appeal, an assignment of error going only to the liability so admitted is not available. Pratt v. Conway, 49 S.W 1028, 30; Gabbert v. Evans, 155 S.W. 635, 7; Dittmeyer v. Laughein, 253 S.W. 776; Wood v. Wells, 270 S.W. 332, 4, and ca. ci.; Manion v. John etc., 273 S.W. 201, 3; National etc. v. Bohemian etc., 91 S.W. 538; Everett v. Marston, 85 S.W. 540; State ex rel. v. St. Louis etc., 38 S.W. 961; Hughes v. Eldorado etc., 197 Ill.App. 259. (b) Where, in the trial of a personal injury action, defendants' counsel, in argument to the jury, limits the argument solely to questions of injuries and damage and as part thereof states: "There is no question about the accident. . . . The only question is, how bad is she hurt? That is the only question in this case. I will concede that. . . . I want to compensate her for her injuries, . . . if you are fair about the injury proposition, I say to you, gentlemen, I will take it and pay the judgment. . . . You retire to your jury room and consider the evidence of your case and any judgment that you make which will be fair and liberal, I will say was fair," the defendants are bound by such admissions, concession and invitation and are estopped from asserting reversible error in instructions on liability. Authorities, supra, under point 1 (1). (2) (a) Assignments of error must be separately specified so that no one assignment shall embrace more than one specification of error and on a failure to comply with this requirement, the court will either refuse to consider the assignment or will overrule it if any one of the assignments of error cannot be sustained. Rule 18, St. Louis Court of Appeals; Sharp v. Quincy etc., 123 S.W. 507; State ex rel. v. Southern etc., 294 S.W. 123; Martin v. Fox, 40 Mo.App. 665; 3 Cor. Jur. 1362. (b) A joint assignment of error must be good as to all who unite in it or it will not be good as to any. Stein v. Schuneman, 273 P. 543; Meyer v. Meyer, 58 N.E. 842; McIntosh v. Wales, 134 P.; 3 Cor. Jur. 1352. (c) A joint motion for a new trial should be overruled as to all the parties joining therein if any one of them is not entitled to a new trial; the same rule applies as to any assignment of error therein. McCarthy v. Morgan, 96 N.W. 489; Prescott v. Houghly, 51 N.E. 105; Johnson v. Winslow, 53 N.E. 388; Wines v. State Bank etc., 53 N.E. 389; Hogan v. Petersen, 59 P. 162. (3) (a) In a personal injury action for damages caused by the operation of an automobile, when it is shown that the ownership of the automobile is in the defendants, the injury occurring while someone else was negligently driving the same, a prima-facie case is made against the owner defendant without affirmative proof to further establish the fact that the automobile at the time was being operated by a servant, employee or agent of the defendant owner, acting within the scope of his employment or authority. Edwards v. Rubin, 2 S.W.2d 205; McCarter v. Burger, 6 S.W.2d 979; Brucker v. Gambaro, 9 S.W.2d 919; State ex rel. v. Daues, 19 S.W.2d 700, 705. (b) The rule, both in automobile and other classes of cases, is that where a prima-facie case is once made for the plaintiff the truth of countervailing rebutting evidence, even though uncontradicted, is for the jury to determine. Warren v. Company, 196 S.W. 1030; Kelly v. City, 177 S.W. 966; Cases cited supra, under P. & A. 3 (1). (4) (a) Neither instruction No. 1 nor instruction No. 2 is erroneous by reason of verbosity and length. Verbosity, length and minuteness of detail of an instruction do not constitute reversible error. Northern v. Chesapeake etc. Co., 8 S.W.2d 982; Block v. United etc. Co., 290 S.W. 429; Wolfe v. Payne, 241 S.W. 915; Kidd v. Railway Co., 274 S.W. 1079; Walter v. Cement Co., 250 S.W. 587; Henry v. Hlinois etc., 282 S.W. 423, 4. (b) Neither of said instructions 1 and 2, respectively, is repetitious, confusing and misleading; where no attempt is made in the brief to point out wherein and in what manner the instruction is vulnerable as charged and prejudicial and no authorities are cited to support the assignment so stated, but not pointed out, the criticism should be disregarded unless the instruction on ordinary reading is clearly prejudicially erroneous for the reason stated. Authorities, supra (1); McKenzie v. Mo. Pac., 24 Mo.App. 392; Johnston v. Fidelity etc., 275 S.W. 973; Hunt v. Hunt, 270 S.W. 365. (5) Laws 1921 (First Extra Session), page 91, section 19, providing that an automobile driver, while operating the same upon a public street or...