Haynie v. Jones et al.

• Decision Date: 30 January 1939
• Docket Number: No. 19345.,19345.
• Citation: 127 S.W.2d 105
• Parties: THEODORE C. HAYNIE AND ANNA HAYNIE, RESPONDENTS, v. DONALD JONES ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

127 S.W.2d 105

THEODORE C. HAYNIE AND ANNA HAYNIE, RESPONDENTS, v. DONALD JONES ET AL., APPELLANTS.

No. 19345.

Kansas City Court of Appeals. Missouri.

January 30, 1939.

Appeal from Circuit Court of Jackson County. — Hon John M. Cleary, Judge.

AFFIRMED.

Sprinkle & Knowles for appellant.

(1) The court erred in giving Instruction Numbered One because said instruction imputes the negligence of defendant Mattingly to defendant Donald Jones, who was a minor, when under the law a minor can be liable only for the minor's own torts. Hodge v. Feiner, 90 S.W. (2d) 90; McKerall v. Railway Co., 257 S.W. 166; Smith v. Wells, 31 S.W. (2d) 1014, 1025; McCombs v. Ellsberry, 85 S.W. (2d) 135, 140. (2) The court erred in refusing to sustain appellant's demurrer at the close of plaintiffs' evidence because the evidence showed that the appellant was a minor and respondents sought to recover against him on the theory of some relationship between appellant and defendant Mattingly, which relationship in law could not exist. (3) The court erred in refusing to sustain appellant's demurrer at the close of all the evidence because the evidence showed that the appellant was a minor and respondents sought to recover against him on the theory of some relationship between appellant and defendant Mattingly, which relationship in law could not exist. (4) The court erred in refusing to give Instruction No. 14, which was to the effect that the negligence of defendant Mattingly could not be imputed to the appellant, the reason therefor being that there could be no legal relationship between the two through which imputed negligence could pass. (5) The court erred in permitting the plaintiffs to amend their petition during the trial and near the close of the plaintiffs' case so that said amendment created a new and different cause of action. Neville v. D'Oench, 34 S.W. (2d) 491, 507; Simon v. Kresge Co., 103 S.W. (2d) 523, 526; Palmer v. Marshall, 24 S.W. (2d) 229, 235; Hodge v. Feiner, 90 S.W. (2d) 90. (6) The court erred in giving Instruction Numbered Four on behalf of the plaintiffs because said instruction erroneously widens the scope of the humanitarian doctrine with respect to the position of peril of the deceased. Smithers v. Barker, 111 S.W. (2d) 47; Buehler v. Festus Mercantile Co., 119 S.W. (2d) 961, 970. (7) The court erred in refusing to sustain appellant's objections to the closing argument of attorney for the plaintiffs, which argument was outside the record and pertaining to matters which clearly were for the purpose of inciting the prejudice and passion of the jury. Monroe v. R.R. Co., 249 S.W. 644, 646; Smith v. Railway Co., 31 S.W. (2d) 105; Sweany v. Railway Co., 80 S.W. (2d) 216, 222; Buehler v. Festus Mercantile Co., 119 S.W. (2d) 961. (8) The verdict of the jury was excessive and the result of passion and prejudice in favor of the plaintiffs and against appellant.

Louis Goessy, Cowgill & Popham and Guy W. Green, Jr., for respondents.

(1) The court did not err in giving plaintiffs' instruction numbered 1 because said instruction required to jury to find that the acts of the driver were the acts of appellant, and in appellant's presence and at his direction. 21 R.C.L., page 816, sec. 1; Booth v. Mister, 7 Carr. and P. 66; James v. Muehlebach, 34 Mo. App. 512; Slothower v. Clark, 179 S.W. 55; Blumenfeld v. Meyer-Schmid Groc. Co., 230 S.W. 132; McKerall v. Frisco, 257 S.W. 166; Roland v. Anderson, 282 S.W. 752; Hodge v. Feiner, 90 S.W. (2d) 90. (2) The court properly refused to sustain appellant's demurrer at the close of plaintiffs' evidence. (3) The court properly refused to sustain appellant's demurrer at the close of all the evidence. (4) The court did not err in refusing to give defendant's Instruction No. 14. (5) The court did not err in permitting the plaintiffs to amend their petition during the trial because the amendment did not materially alter the allegations of the first amended petition and evidence to support the amendment was introduced without objection. Secs. 817-819, R.S. Mo. 1929; Burnham v. Tillery, 85 Mo. App. 453; Grigsby v. Barton City, 169 Mo. 221, 69 S.W. 296; Ayres v. Middleton Theatre, 210 S.W. 911; Samples v. K.C. Ry. Co. (Mo. App.), 232 S.W. 1049; Ehrlich v. Mittelberg, 299 Mo. 280, 252 S.W. 671; Hayward v. Peoples Motor Bus Co. (Mo. App.), 1 S.W. (2d) 252; Tucker v. Kollias (Mo. App.), 16 S.W. (2d) 649; Lanham v. Vesper, etc., Co. (Mo. App.), 21 S.W. (2d) 890; Lee v. Supply Co., 323 Mo. 1204, 23 S.W. (2d) 45; Sutton v. K.C. Star (Mo. App.), 54 S.W. (2d) 454; Dyer v. Harper (Mo.), 77 S.W. (2d) 106; Hughes v. Lincoln Life (Mo. App.), 84 S.W. (2d) 973; McCullough v. Railway (Mo. App.), 88 S.W. (2d) 400; Smith v. Harbison, etc., Co. (Mo.), 100 S.W. (2d) 909; Ilgenfritz v. Mo., etc., Co., 340 Mo. 648, 101 S.W. (2d) 723; Gannaway v. Pitcairn (Mo. App.), 109 S.W. (2d) 78; Scott v. K.C.P.S. Co., 115 S.W. (2d) 518; Evans v. Massman (Mo. App.), 115 S.W. (2d) 163. (6) The court did not err in giving plaintiffs' Instruction No. 4 because it did not place any duty on defendant until they knew, or should have known that deceased was in a position of imminent peril and oblivious thereto. Banks v. Morris (Mo. en banc), 257 S.W. 482; Brown v. Callicotte (Mo.), 73 S.W. (2d) 190; Hein v. Peabody Coal Co. (Mo.), 85 S.W. (2d) 604. (7) The court did not err in refusing to sustain appellant's objections to respondents' closing argument, because the argument was proper and because the objections were not preserved in the motion for new trial. Norris v. Railway, 144 S.W. 783; Torreyson v. United Rys., 246 Mo. 696, 152 S.W. 32; Irons v. American Ry. Express (Mo. en banc), 300 S.W. 283; Young v. St. Joe (Mo. App.), 4 S.W. (2d) 1104; Glaves v. Old Gem Catering Co. (Mo. App.), 18 S.W. (2d) 564; Lochmann v. Brown (Mo. App.), 20 S.W. (2d) 561; Davis v. Wells, 27 S.W. (2d) 714; Beebe v. Kansas City (Mo.), 34 S.W. (2d) 57; Goyette v. Frisco (Mo.), 37 S.W. (2d) 552; Jones v. Mo., etc., Co. (Mo. App.), 40 S.W. (2d) 465; Hablutzel v. Home Life Ins. Co. (Mo.), 52 S.W. (2d) 639; Waeckerley v. Colonial Baking Co. (Mo. App.), 67 S.W. (2d) 779; Jones v. Kansas City, 76 S.W. (2d) 340; Arnold v. May Department Stores (Mo.), 85 S.W. (2d) 748; Rouchene v. Campbell Construction Co., 89 S.W. (2d) 58; Carroll v. Mo. Power & Light Co., 96 S.W. (2d) 1074; Hancock v. Kansas City Terminal Ry. Co., 100 S.W. (2d) 570; Goucher v. Accident Co., 104 S.W. (2d) 289; Crews v. K.C.P.S. Co., 111 S.W. (2d) 54; Powell v. Brosnahan, 115 S.W. (2d) 140. (8) The verdict was not excessive. Miller v. Hotel Savoy Co., 228 Mo. App. 463, 68 S.W. (2d) 929; Ponticello v. Liliensick (Mo. App.), 83 S.W. (2d) 150.

BLAND, J.

This is an action for wrongful death. Plaintiffs recovered a verdict and judgment in the sum of $6500 and the defendant, Donald Jones, has appealed.

The plaintiffs are the parents of one Burton Haynie, who was killed on March 31, 1937. He met his death as a result of being struck by an automobile a short distance south of the city limits of Kansas City and while walking on a public highway known as Wornall Road. Deceased was accompanied by his brother and another boy walking south. The automobile was proceeding in the same direction. The casualty happened about 10:30 P.M. The automobile in question belonged to one Guy W. Jones, who was made a party defendant. At the close of plaintiffs' case the cause was dismissed as to him and proceeded as to defendants Donald Jones and Allen Mattingly, against whom the judgment was rendered. Donald Jones, alone, has appealed.

Guy W. Jones, the father of Donald Jones (Donald Jones is hereinafter called the defendant), permitted the latter to take the former's car on the day in question. The latter drove the car to the separate homes of three of his friends and they entered the car as his guests. At the time of the collision a young man and a young lady occupied the rear seat. Defendant and Allen Mattingly occupied the front seat. The four (all minors) were out for a pleasure drive with no definite destination in view. A short time before the casualty defendant turned over the wheel of the automobile to Allen Mattingly, the former sitting to the right of the latter in the front seat. Defendant was eighteen and Mattingly seventeen years of age.

Defendant's testimony tends to show that just before the casualty an automobile, approaching from the south with bright lights, blinded the driver, Mattingly, as well as the others in the Jones car; that deceased was not seen until the northbound car passed; that at that time the Jones' car was swerved as far as it could be turned to the left but it was impossible to avoid striking the deceased. Defendant's evidence also shows that, on account of the blinding lights on the approaching northbound car, defendant told Mattingly to "flick your lights." This was for the purpose of indicating to the driver of the approaching car that his lights were blinding the occupants of the Jones car, so that the driver of the former car would dim his lights or "put them down." Defendant testified that in driving along he glanced over to the side of the car to see that Mattingly did not get off of the road to the right; that he was watching "because it was my car and I would naturally be interested in it." After the casualty the Jones car ran forty-five or fifty feet before it stopped. Defendant then "instructed" Mattingly to drive the car "on down where he could park" which was done. Defendant then got out of the car and boarded another which went north in order to reach deceased, who was yet alive. Deceased was placed in the car and taken to the hospital and defendant told Mattingly to follow in the Jones car.

Plaintiffs' case was submitted both upon the humanitarian doctrine and primary negligence.

Defendant insists that his instruction in the nature of a demurrer to the evidence should have been given, for the reason that he was a minor and, although he may have had the right...