Hancock v. Kansas City Terminal Ry. Co.

• Decision Date: 14 December 1936
• Citation: 100 S.W.2d 570,339 Mo. 1237
• Parties: Lola E. Hancock, Administratrix of Estate of Eugene P. Hancock, v. Kansas City Terminal Railway Company, a Corporation, Appellant
• Court: Missouri Supreme Court

100 S.W.2d 570

339 Mo. 1237

Lola E. Hancock, Administratrix of Estate of Eugene P. Hancock, v. Kansas City Terminal Railway Company, a Corporation, Appellant

Supreme Court of Missouri

December 14, 1936

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Reversed and remanded.

S W. Sawyer, John H. Lathrop and James F. Walsh for appellant.

(1) Plaintiff's Instruction 4 on damages is erroneous because, (a) it gave the jury a roving commission to find in any amount without any proper guide in the record or in the instruction itself as to matters which might be considered in fixing damages, and the instruction did not contain any requirement to limit to present values such future financial benefits as the jury might find would reasonably have resulted to the beneficiaries from the continued life of the deceased; (b) the instruction did not limit the damages which the jury might allow for the minor son to the period of his minority and made no distinction between damages for the widow and for the minor son; (c) the instruction, in submitting the matter of a proportionate deduction for contributory negligence of the deceased, specified as one of the elements to which the proportion was to be applied damages, if any, sustained by plaintiff, who was administratrix. Plaintiff as administratrix did not sustain any damages. Chesapeake & Ohio Ry. Co. v. Kelly, 241 U.S. 485; Gulf Ry. Co. v. Moser, 275 U.S. 133; Louisville & Nashville Ry. Co. v. Holloway, 246 U.S 525; C., B. & Q. Ry. Co. v. Kelley, 74 F.2d 80; Gulf, Colorado & Santa Fe v. McGinnis, 228 U.S. 173; Hines v. Walker, 225 S.W. 837; Louisville & Nashville Ry. Co. v. Stewart, 241 U.S. 261. (2) The trial court erred in excluding the defendant's evidence and offer of proof that A. D. Williams, general yardmaster of the Terminal, on several occasions prior to March 23, 1932 (date of death of deceased) had occasion to discipline Hancock for drinking while engaged in the performance of his duties and at one time discharged him and later reinstated him. This evidence tended to corroborate the evidence that Hancock had taken a drink shortly before the accident and that alcohol was found in his stomach at the autopsy. It bore directly on Hancock's life expectancy and also on the matter of damages. If Hancock drank on duty, he was more likely to be killed or injured and he was less likely to hold a railroad job. 8 R. C. L., sec. 172, p. 631; Wolters v. Railroad Co., 193 S.W. 877; Morton v. Construction Co., 280 Mo. 380; Darks v. Scudders-Gale Grocery Co., 130 S.W. 430, 146 Mo.App. 246; Chambers v. Kupper Co., 134 S.W. 45, 154 Mo.App. 249; Kribs v. Jefferson City L. & P. Co., 199 S.W. 261; Cameron Mill & Elevator Co. v. Anderson, 81 S.W. 282, 1 L. R. A. (N. S.) 198; Louisville & Nashville Ry. Co. v. Daniel, 91 S.W. 691, 3 L. R. A. (N. S.) 1190; Kingston v. Railroad Co., 70 N.W. 315, 40 L. R. A. 131. (3) Both the opening and closing arguments of plaintiff's counsel were erroneous and highly prejudicial and aroused the passions and prejudices of the jury, which inhered in the verdict. Statements that the minimum amount which the jury was required to return under the Federal Employers' Liability Act was fifty thousand dollars; that plaintiff was entitled to recover not only for wages deceased would have earned throughout his expectancy but for loss of services of a loving and devoted father; statement that defendant's counsel had made a vile charge that deceased was drunk (when no such statement had been made), and that defendant made the charge knowing he could not support it but was willing to blacken the memory of a dead man and the dead man's widow and orphan; statements that to make such a charge when one knows it is not true and knows the evidence will not support it is a damnable thing; statements that he should tender his apologies to the widow and the memory of the dead man; statements that defendant wished to pay its debt in sympathy, that it was cheaper to do so than in hard, cold cash, and that defendant's counsel was asking for sympathy for the Terminal and not the widow, were calculated by plaintiff's counsel to inflame and arouse the jury, were erroneous and prejudicial and resulted in a verdict for $ 50,000, the full amount sued for. The trial court erred in denying defendant's motions to discharge the jury and declare a mistrial. Norfolk & Western Ry. Co. v. Holbrook, 235 U.S. 625, 35 S.Ct. 143; New York Cent. Railroad Co. v. Johnson, 279 U.S. 310, 49 S.Ct. 300; Hendrick v. Kauffman, 66 S.W.2d 985; Rytersky v. O'Brine, 70 S.W.2d 538.

Madden, Freeman & Madden for respondent.

(1) The criticism that the court failed to supplement respondent's instruction by advising the jury that "Pecuniary Loss" meant the present value of future benefits. Sec. 967, R. S. 1929; Laycock v. Rys. Co., 290 Mo. 356; Pope v. Terminal, 254 S.W. 47; Holman v. Frisco, 278 S.W. 1008; Powell v. Railroad Co., 255 Mo. 456; Gill v. Railroad Co., 259 S.W. 97. (a) The criticism that the court failed to supplement respondent's instruction by advising the jury that "Pecuniary Loss" meant, as to the minor child, the present value of lost benefits during minority, such criticism being made despite the fact that the only evidence in the cause or pecuniary loss to the minor was during minority, and that the jury must be presumed to have followed the evidence. Laycock v. Rys. Co., 290 Mo. 356; Holman v. Ry. Co., 278 S.W. 1007; Gill v. Railroad Co., 259 S.W. 97. (b) The criticism of the use of the phrase "the actual damages (if any) you find plaintiff sustained from said death." Keyes v. Railroad Co., 31 S.W.2d 64. (2) The trial court did not err in excluding appellant's offer of proof that the witness Williams had prior to the accident had occasion to discipline Hancock for drinking on duty and at one time had occasion to discharge him. Edmonston v. Jones, 96 Mo.App. 92; Fearey v. O'Neill, 149 Mo. 473; Smith v. Mills, 134 S.E. 146; Fitzgerald v. Young, 113 N.E. 778; Sunmount Co. v. Nagal, 236 P. 507; Capital Garage v. Powell, 127 A. 375; Flowers v. Bush, 254 F. 519; Hatcher v. Lammons, 112 So. 120; Booth Granite Co. v. Smith, 97 A. 826; Bond v. Corbett, 2 Minn. 248; Platt v. Huegel, 32 S.W.2d 608; 6 Jones Commentaries on Evidence (2 Ed.), sec. 2526, p. 4999; Cooley v. Davis, 286 S.W. 412; Hart v. Brown, 216 S.W. 552; Williams v. Ry. Co., 155 S.W. 64; Howard v. Shoe Co., 82 Mo.App. 405; Seewald v. Gentry, 220 Mo.App. 385. (a) The offer of proof was broader than the question and was therefore properly rejected. Shields v. Insurance Co., 147 A. 362; Hallwood Register Co. v. Prouty, 82 N.E. 7; Barr v. Post, 77 N.W. 125; Lessig v. Davis, 125 N.E. 579; Stockwell v. Brinton, 142 N.W. 242. (b) The question to which objection was sustained called for a conclusion on the part of the witness, and not a statement of fact. (c) The alleged fact that the witness had had occasion to discipline Hancock on a previous occasion was clearly a collateral issue and hence incompetent. Shaw v. Railroad Co., 282 S.W. 422; Friedman v. United Rys., 293 Mo. 245; Meredith v. Whillock, 173 Mo.App. 549; Miller v. Journal Co., 246 Mo. 722. (d) Even if the evidence excluded had been to the effect that Hancock on a previous occasion had taken a drink, it would not have been competent. 45 C. J. 1257; Friedman v. United Rys., 293 Mo. 245; Howell v. Sherwood, 242 Mo. 540; Culbertson v. Ry. Co., 140 Mo. 35, l. c. 57. (e) Even had this evidence offered purported to show a habit of drunkenness or intoxication on the part of Hancock, it would not have been admissible under the rule in this jurisdiction. Glasgow v. Ry. Co., 191 Mo. 357; 45 C. J. 1257; Culbertson v. Ry. Co., 140 Mo. 58; Sullivan v. Narin, 56 N.E. 600. (3) The argument of counsel for respondent was proper; all objections of appellant thereto were, moreover, sustained; and the trial court's refusal to discharge the jury, showing no abuse of discretion, will not be reviewed. Irons v. Am. Express Co., 300 S.W. 292; Williams v. Fleming, 218 Mo.App. 577; Kelso v. Ross Const. Co., 85 S.W.2d 541. (a) The argument on damages. Moran v. Ry. Co., 48 S.W.2d 888.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

This is an action for damages under the Federal Employers' Liability Act brought by Mrs. Lola E. Hancock, as administratrix, for the death of her husband, an employee of the defendant railway company, who was killed on March 23, 1932, while engaged in a switching operation in defendant's yards at Kansas City, Missouri. The action was filed and tried in the Circuit Court of Jackson County, at Kansas City; the jury returned a verdict for plaintiff in the sum of $ 50,000. As a condition to the overruling of defendant's motion for a new trial the trial court required a remittitur in the amount of $ 20,000. The remittitur was made, defendant's motion for a new trial overruled, and judgment for plaintiff in the amount of $ 30,000 entered; from which judgment defendant has appealed. No question is made as to the applicability of the Federal Employers' Act.

Hancock had been in the employ of defendant company since 1920 and was thirty-eight years of age at the time of his death. He left surviving him his widow, Lola E. Hancock, who brings this action as administratrix, and one child, a son, of the age of eleven years. Hancock was a switch foreman and on the morning of March 23, 1932, his crew was engaged in distributing the cars from a train of thirteen to fifteen cars which had been brought from defendant's yards in Kansas to its yards in Kansas City, Missouri. One of these cars had been cut off and left on the main lead track near the west end of the yard. After various cars had been delivered to their respective destinations the crew with their switch engine proceeded west on this...