Hart v. Skeets

• Citation: 145 S.W.2d 143,346 Mo. 1118
• Decision Date: 03 December 1940
• Docket Number: 36644
• Parties: Mary E. Hart, by her next friend, Gladys Knaebel, v. Alfred Skeets, Appellant
• Court: Missouri Supreme Court

145 S.W.2d 143

346 Mo. 1118

Mary E. Hart, by her next friend, Gladys Knaebel, v. Alfred Skeets, Appellant

No. 36644

Supreme Court of Missouri

December 3, 1940

Appeal from Jackson Circuit Court; Hon. Albert A. Ridge Judge.

Affirmed.

Mitchel J. Henderson, Thos. E. Deacy and Henderson, Deacy Henderson & Swofford for appellant.

(1) The trial court erred in sustaining plaintiff's motion for a new trial on the seventh ground thereof. (a) Since the trial court sustained defendant's objection to plaintiff's offer of Section 43, Ordinance 2340 and excluded it from evidence this action of the trial court should not be disturbed upon the motion for a new trial or upon appeal if plaintiff's offer was not proper for any reason regardless of the grounds stated in defendant's objection. Crow, Hargadine & Co. v. Stevens, 44 Mo.App. 137; Gubernator v. Rattalack, 86 Mo.App 184; Connor v. Black, 119 Mo. 126, 24 S.W. 184; White v. Hasburgh, 124 S.W.2d 560. (b) No proper offer of Section 43, Ordinance 2340 of Kansas City, Missouri was made by the plaintiff. The court's action in sustaining defendant's objection thereto was proper upon this ground. Sec. 1663, R. S. 1929; 22 C. J. 794, sec. 905; Town of Tipton v. Norman, 72 Mo. 380; Moberly v. Deskin, 169 Mo.App. 672, 155 S.W. 842; Tarkio v. Cook, 120 Mo. 1, 25 S.W. 202; Poplar Bluff v. Meadows, 187 Mo.App. 450, 173 S.W. 11; Brown v. Alton Railroad, 132 S.W.2d 713; Wright v. Hines, 235 S.W. 831. (c) The part of Section 43, Ordinance 2340 orally offered by plaintiff was incompetent, immaterial and irrelevant and did not tend to prove or disprove any issues involved in the law suit and there was no showing by the plaintiff either in her evidence or in the oral offer that said ordinance was in anyway involved in the case. The court's action in sustaining defendant's objection thereto was proper upon this ground. (2) Instruction 3 offered on behalf of defendant and given by the court, is a proper and approved instruction on the credibility of witnesses and is not erroneous and the court did not err in giving said instruction. Randol v. Kline's, Inc., 330 Mo. 343, 49 S.W.2d 112; Flint v. Loew's St. Louis Realty & Amusement Co., 126 S.W.2d 193. (3) Instruction 7 offered on behalf of the defendant and given by the court is a proper and approved instruction on the burden of proof and is not erroneous and the court did not err in giving said instruction. Gardner v. Turk, 123 S.W.2d 158; Stolovey v. Fleming, 328 Mo. 623, 8 S.W.2d 832. (4) The court erred in granting plaintiff a new trial because of error in defendant's instructions Nos. 9 and 10. These were proper instructions upon the "sole cause" and "no negligence of defendant" theories respectively and properly declared the law relating thereto when considered together and with the plaintiff's instructions. State ex rel. North British & Merc. Ins. Co. v. Cox, 307 Mo. 194, 270 S.W. 113; Larey v. M.-K.-T. Ry. Co., 333 Mo. 949, 64 S.W.2d 681; King v. Reith, 341 Mo. 467, 108 S.W.2d 1; State ex rel. St. Joseph Belt Ry. Co. v. Shain, 108 S.W.2d 351; Cason v. K. C. Term. Ry. Co., 123 S.W.2d 133; Schneider v. Dubinsky Realty Co., 127 S.W.2d 691; Arnold v. Alton Railroad Co., 124 S.W.2d 1092; Oliver v. Morgan, 73 S.W.2d 993; Crowley v. Worthington, 71 S.W.2d 744; Schweig v. Wells, 26 S.W.2d 851; Colins v. Beckmann, 79 S.W.2d 1052; Boland v. St. L.-S. F. Ry. Co., 284 S.W. 141; Shumate v. Wells, 320 Mo. 536, 9 S.W.2d 632; Peppers v. Railroad Co., 316 Mo. 1104, 295 S.W. 757; Watts v. Mousette, 337 Mo. 533, 85 S.W.2d 487; Smith v. Star Cab Co., 323 Mo. 441, 19 S.W.2d 467; Engleman v. Ry. Express Agency, 340 Mo. 360, 100 S.W.2d 540; Long v. Bennicker, 228 Mo.App. 193, 63 S.W.2d 831. (5) The court erred in granting plaintiff's motion for a new trial because of alleged error in defendant's Instruction 11. This was a proper instruction on contributory negligence in this case and properly declared the law relating thereto. Berton v. Pryor, 198 S.W. 1117; Irwin v. McDougall, 217 Mo.App. 645, 274 S.W. 923; Hill v. St. Louis Pub. Serv. Co., 64 S.W.2d 633; Clofton v. Caraker, 50 S.W.2d 758; Miller v. Rollins, 102 S.W.2d 686; Grosevener v. N. Y. Central Ry. Co., 123 S.W.2d 173; State ex rel. Wells v. Haid, 324 Mo. 759, 25 S.W.2d 92; Schweig v. Wells, 26 S.W.2d 851.

Edgar J. Keating and Robert B. Vaughan for respondent.

(1) The trial court was correct in granting plaintiff a new trial on the seventh ground thereof, namely, because of its refusal to receive in evidence subdivision B of Section 43 as revised by Ordinance 2340, Revised Ordinances of Kansas City. State ex rel. Hartman v. Thomas, 149 S.W. 321; Smith v. K C. Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; Stelmach v. Saul, 51 S.W.2d 888; White v. Hasburgh, 124 S.W.2d 565; Collins v. Leahy, 102 S.W.2d 801; Baily v. Kansas City, 87 S.W. 1182; Lechner v. St. Louis, 121 S.W.2d 245; Rines v. Riek, 57 S.W.2d 726; Hartford Fire Ins. Co. v. Bleedorm, 132 S.W.2d 1070. (2) The trial court was correct in granting plaintiff a new trial on the eighth ground thereof, namely, because it erred in giving instructions 9, 10 and 11 to the jury at the request of the defendant. Instruction 9 submits the sole negligence defense on general negligence instead of submitting this defense on the specific acts of negligence charged in the answer against the driver of the automobile in which plaintiff was riding and attempted to be proved by defendant. Hence it was broader than the pleading and broader than the evidence and gave the jury a roving commission. Watts v. Moussette, 85 S.W.2d 492; State ex rel. Long v. Ellison, 276 Mo. 371, 199 S.W. 989; Hall v. Mfgs. Coal & Coke Co., 168 S.W. 927; Connole v. E. St. Louis & S. Ry. Co., 102 S.W. 589; Thompson v. St. Joseph Ry., L., H. & P. Co., 131 S.W.2d 582; Pearrow v. Thompson, 121 S.W.2d 815. (a) Instruction 9 omits an essential element of the sole negligence defense in that it fails to advise the jury that the negligence of the driver of the automobile in which plaintiff was riding is not to be imputed to plaintiff in determining whether said driver's negligence was the sole cause of said collision. This is misdirection and it is not only not cured by plaintiff's prior instruction on imputed negligence but said prior instruction makes it all the more confusing because it creates a conflict between said instructions. Crowley v. Worthington, 71 S.W.2d 745; Dilallo v. Lynch, 101 S.W.2d 13; State ex rel. Long v. Ellison, 276 Mo. 371, 199 S.W. 989; Hall v. Mfgs. Coal & Coke Co., 168 S.W. 927; Connole v. E. St. Louis & S. Ry. Co., 102 S.W. 589; Thompson v. St. Joseph Ry., L. H. & P. Co., 131 S.W.2d 582; Pearrow v. Thompson, 121 S.W.2d 815. (b) The sole negligence theory attempted to be submitted by defendant in his Instruction 9 is inconsistent with the contributory negligence theory attempted to be submitted by defendant in his Instruction 11 because both cannot be true. Kirk v. Franklin, 117 S.W.2d 289; Dilallo v. Lynch, 101 S.W.2d 10; State v. Shain, 101 S.W.2d 3. (c) Said instruction is not based on or supported by any substantial evidence. Hough v. C., R. I. & P. Ry. Co., 100 S.W.2d 504. Instruction 10 (a) fails to advise the jury that the negligence of the driver of the automobile in which plaintiff was riding is not to be imputed to plaintiff in determining whether said driver's negligence was the sole cause of said collision. (b) It is inconsistent with defendant's Instruction 11 on contributory negligence. (c) It is not supported by any substantial evidence. (d) It omits another essential element of the sole negligence defense in that it fails to include the "not due to the negligence of defendant" provision, which is an essential element of a sole negligence instruction given in a guest passenger case. McGrath v. Meyers, 107 S.W.2d 795; Dilallo v. Lynch, 101 S.W.2d 13. (e) Instruction 10 is also erroneous for the reason that under the evidence of record there was no issue regarding the right of way. Therefore Instruction 10 had no legitimate place or purpose in the case and it was highly prejudicial to plaintiff in that it warranted the jury in placing the imputation of negligence on the driver of the car in which plaintiff was riding because of his apparent infringement of defendant's rights under a statute which was wholly without application to the case. Bramlett v. Harlow, 75 S.W.2d 632; Pappas Pie & Baking Co. v. Stroh Bros. Delivery Co., 67 S.W.2d 793. Instruction 11. This instruction attempts to submit claimed acts of contributory negligence which were not pleaded in the answer and were not supported by any evidence. Hence it is broader than the pleading and broader than the evidence. Rucker v. Alton Ry. Co., 123 S.W.2d 26; Watts v. Moussette, 85 S.W.2d 491; State ex rel. Central Coal & Coke Co. v. Ellison, 195 S.W. 724; Pearrow v. Thompson, 121 S.W.2d 815; Clason v. Lentz, 61 S.W.2d 730; Schide v. Gottschick, 43 S.W.2d 777. (a) Instruction 11 is erroneous for the additional reason that it omits an essential element of the contributory negligence defense in that it fails to require the jury to find that the negligence attempted to be submitted therein was the cause of or was an efficient part of the cause of plaintiff's injuries. This omission constitutes incurable error, which is conclusively presumed to be prejudicial. Barrett v. Town of Canton, 93 S.W.2d 931; Connole v. E. St. Louis & S. Ry. Co., 102 S.W.2d 588; Dunsmore v. Hartman, 256 S.W. 1031; State ex rel. Long v. Ellison, 199 S.W. 988; McComb v. Bowen, 73 S.W.2d 300. (b) It assumes as a fact and so tells the jury that the driver of the car in which plaintiff was riding could have avoided the collision and failed to do so, which was and is a disputed fact. Blech v. Berzon, 61 S.W.2d 202; Glaser v. Rothschild, 120 S.W. 9. (3) The...