Harris v. Goggins

• Citation: 374 S.W.2d 6
• Decision Date: 09 December 1963
• Docket Number: No. 50006,50006
• Parties: Clyde HARRIS, Administrator of the Estate of Alma Harris, Deceased, Plaintiff-Appellant-Respondent, v. Ernest (Pete) GOGGINS, Charles Louis Woodruff, Banks Ray, Sr., Banks Ray, Jr., d/b/a Nashville Produce Company, Raymond Caldwell and David Caldwell, Defendants-Respondents, Ernest (Pete) Goggins, Defendant-Appellant.
• Court: United States State Supreme Court of Missouri

Page 6

374 S.W.2d 6

Clyde HARRIS, Administrator of the Estate of Alma Harris, Deceased, Plaintiff-Appellant-Respondent, v. Ernest (Pete) GOGGINS, Charles Louis Woodruff, Banks Ray,

Sr., Banks Ray, Jr., d/b/a Nashville Produce

Company, Raymond Caldwell and David

Caldwell, Defendants-Respondents,

Ernest (Pete) Goggins, Defendant-Appellant.

No. 50006.

Supreme Court of Missouri, En Banc.

Dec. 9, 1963.

Rehearing Denied Jan. 13, 1964.

Dearing, Richeson & Weier, H. L. C. Weier, Hillsboro, for appellant Ernest Gogins.

McClintock & Medley, Charles W. Medley, Flat River, for respondent Clyde Harris.

Roberts & Roberts, J. Richard Roberts, Farmington, for respondents Charles Louis Woodruff, Banks Ray, Sr., and Banks Ray, Jr.

Morris E. Stokes, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondents Raymond Caldwell and David Caldwell.

HOLMAN, Judge.

Clyde Harris, administrator of the estate of Alma Harris, filed this suit to recover damages for personal injuries sustained by Alma Harris during her lifetime as a result of the alleged negligence of the defendants. Defendants were Ernest (Pete) Goggins; Charles Louis Woodruff; Banks Ray, Sr. and Banks Ray, Jr., doing business as Nashville Produce Company; Raymond Caldwell and David Caldwell. The trial resulted in a verdict in favor of plaintiff and against defendant Goggins in the sum of $5,500, and against plaintiff and in favor of all other defendants. Defendant Goggins appealed from the judgment in favor of plaintiff, and plaintiff appealed from the judgment in favor of the remaining defendants. These appeals were properly taken to the St. Louis Court of Appeals. While that court gave the appeals separate numbers, they were properly disposed of in one opinion.

The court of appeals filed an opinion on December 18, 1962, in which '[t]hat part of the judgment of the court below which was entered in favor of the plaintiff against defendant Goggins in the sum of $5500 is reversed and the cause as to said defendant is remanded with directions to permit plaintiff to amend his petition in the respect indicated in this opinion and if he does so to have a retrial on all issues as to said defendant. The judgment in favor of all other defendants is affirmed.' Harris v. Goggins, Mo.App., 363 S.W.2d 717, 736.

On December 29, 1962, defendant-appellant Goggins filed a motion for rehearing or in the alternative to transfer to the supreme court. No motion for rehearing or to transfer was filed by plaintiff-appellant. On January 25, 1963, the court of appeals filed a per curiam opinion in which it discussed plaintiff's right to maintain this action which opinion concluded with the following order: 'Therefore, after opinion, and during the pendency of defendant's motion for rehearing and in the alternative for transfer of the cause to the Supreme Court of Missouri, and in accordance with Article V, Sec. 10 of the Constitution of Missouri 1945 and Rule 84.05(g) of the Supreme Court, the court on its own initiative doth order that the cause be and the same is hereby transferred to the Supreme Court because of the general interest and importance of the question involved in the cause and for a re-examination of the existing law in the light of the circumstances of this cause.' 363 S.W.2d l. c. 737.

We will adopt a portion of the opinion of the court of appeals which states the facts concerning the manner in which Mrs. Harris was injured:

'Alma Harris had been a patient in Barnes Hospital in the City of St. Louis from July 3, 1959, to July 31, 1959. In this hospital an operation was performed on her dorsal spine, at which time a metastatic cancer was found. Following this surgery Alma Harris became paralyzed in her lower extremities. On the day the collision took place, viz., July 31, 1959, she was being transported in an ambulance driven by David Caldwell, who was in the employ of Raymond Caldwell, from Barnes Hospital to her home in Flat River, Missouri. In the course of transporting Alma Harris from Barnes Hospital to her home, the ambulance was driven southwardly on Highway 67 and when near its intersection with Cantwell Lane in St. Francois County, which lane is for east and westbound traffic, David Caldwell saw a northbound truck on Highway 67 when it was about three feet across the center line of the highway. David Caldwell swerved the ambulance toward the shoulder of the road to avoid the truck. The amburlance was struck by the truck at a point north of the intersection.

'Prior to the approach of the ambulance to the intersection of Cantwell Lane and Highway 67, defendant Goggins had been driving eastwardly on Cantwell Lane. From a stopped position, on the west side of Highway 67, on said Lane, defendant Goggins drove onto and across Highway 67, which at this point is a two lane highway.

'Defendant Woodruff was in the employ of defendants Banks Ray, Sr. and Banks Ray, Jr., doing business as Nashville Produce Company, and was driving a truck owned by them northwardly on Highway 67. At a point south of Cantwell Lane he saw the Goggins automobile cross Highway 67 and testified he swerved to the left to avoid striking the automobile. He estimated he drove over onto the west side of the highway about 3 1/2 feet. Alma Harris, as we have stated, was a passenger in the ambulance and had been placed on a cot therein and when the ambulance was struck by the truck, it caused her to be propelled toward the front end of the cot and knocked her feet partly off the edge of the cot. She complained of pain following the collision and was taken to the Bonne Terre Hospital where she remained until the time of her death on October 27, 1959.'

It was alleged in plaintiff's petition that Alma Harris died on October 28, 1959, and that plaintiff, who is the son of Alma Harris, was appointed administrator of her estate on the 16th day of February, 1960. The petition then alleged various specifications of negligence which allegedly caused the collision, and further alleged that 'as a result of said collision, Alma Harris suffered the following injuries all of which were permanent and progressive and all of which caused Alma Harris to suffer excruciating pain and suffering and caused her much mental anguish [description of injuries omitted], and that said injuries caused her to be hospitalized from July 31, 1959 to the date of her death.'

Thereafter, defendant Goggins filed a motion to dismiss plaintiff's petition in which he alleged that theretofore, on November 23, 1959, Clifford Harris, the surviving husband of decedent, had filed a petition against these defendants seeking damages in the amount of $25,000 for the wrongful death of his wife; that the cause was tried before a jury on the 18th and 19th days of July, 1960, and that after all the evidence was closed, but prior to submission to the jury, the parties settled said action; that a stipulation for dismissal with prejudice was executed by plaintiff's attorneys and that said plaintiff executed a release to all of the defendants; that said cause was dismissed with prejudice in accordance with said stipulation, and that defendant Goggins paid said plaintiff the sum of $5,125 and plaintiff agreed that the largest item of medical expense, i. e., $2,000 owed the Bonne Terre Hospital, would be paid out of that settlement. Said motion then alleged a number of reasons why the settlement with decedent's husband was res judicata and precluded this plaintiff from maintaining the present action. Said motion also alleged 'that the plaintiff has not set forth facts in his petition which would entitle him to the relief prayed for therein.' All of the other defendants filed similar motions with the exception that the amounts alleged to have been paid in settlement were, by defendants Charles Louis Woodruff et al., $1,125, and defendants Raymond Caldwell et al., $750. These motions were heard on January 6, 1961, and evidence offered in support thereof, and were on January 11, 1961, overruled by the trial court. Allegations similar to those contained in the motions to dismiss were included in the various answers filed by the defendants. Also, on the day the trial commenced, each of the defendants reoffered their motions to dismiss plaintiff's petition and same were overruled by the court.

At the conclusion of all of the evidence defendants again offered there record evidence which had been previously submitted to the court in support of their respective motions to dismiss plaintiff's petition and the offer was denied by the court. Thereafter, all of the defendants filed motions for a directed verdict, and in the motion of defendant Goggins, and also the joint motion of Charles Louis Woodruff et al., one of the grounds stated in support of said motions was that plaintiff's petition failed to allege facts upon which relief could be granted.

The two main points raised by appellant Goggins upon appeal were: (1) 'The judgment of the circuit court in the prior case of Clifford Harris against the same defendants for the wrongful death of his wife acted as a bar by reason of appropriation, estoppel, merger and res adjudicata to the bringing and prosecution of the instant case, and the court erred in failing to sustain the defendant's motion to dismiss plaintiff's petition, renewed during the course of the trial and again set forth in the after-trial motion,' and (2) 'plaintiff's petition failed to state facts which would entitle him to the relief prayed for therein, in that he did not allege that the deceased received injuries which did not result in her death and the court erred in failing to sustain defendant Goggins' motion to dismiss, renewed in the answer, renewed before the introduction of evidence, again renewed in the motion for directed verdict at the close of all the evidence, and again renewed in the after-trial motion.'

The court of appeals in its opinion, relying primarily upon the case of Plaza Express Co. v. Galloway, 365 Mo....