Heitz v. Voss Truck Lines

• Decision Date: 01 November 1943
• Docket Number: No. 38570.,No. 38569.,No. 38568.,38568.,38569.,38570.
• Parties: HEITZ v. VOSS TRUCK LINES, Inc., et al.
• Court: Missouri Supreme Court

175 S.W.2d 583

HEITZ v. VOSS TRUCK LINES, Inc., et al.

No. 38568.

No. 38569.

No. 38570.

Supreme Court of Missouri, Division No. 2.

November 1, 1943.

Rehearing Denied December 6, 1943.

Appeal from St. Louis Circuit Court, Division No. 18; F. E. Williams, Judge.

Action by Marie Heitz against Voss Truck Lines, Inc., Estelle M. Smith, Edna Kessler Mitchell and Estelle M. Smith, executrix, estate of Louise Kessler Muettmann, deceased, for injuries sustained in an automobile collision. From a judgment for plaintiff, the defendants appeal.

Affirmed.

Moser, Marsalek & Dearing, of St. Louis, for Voss Truck Lines, Inc., appellant.

Leahy & Leahy, of St. Louis, for Estelle M. Smith, Edna Kessler Mitchell, and Estelle M. Smith, executrix, appellants.

Mark D. Eagleton, James A. Waechter, and Donald Gunn, all of St. Louis, for respondent.

WESTHUES, Commissioner.

This suit was filed by plaintiff seeking damages for personal injuries sustained on June 13, 1941, in an automobile collision which occurred on Highway 66, near Eureka, Missouri. A trial resulted in a verdict for plaintiff for $12,000. A remittitur of $2,000 was ordered, which plaintiff accepted, and judgment was entered in plaintiff's favor for $10,000. From this judgment three separate appeals were taken. Since there is only one lawsuit, the appeals were consolidated.

The vehicles involved in the collision were a truck and trailer of the defendant Voss Truck Lines, Inc., being operated at the time by Raymond Combs, and a 1929 Ford, being used for the delivery of merchandise for a grocery owned and operated by defendants Estelle M. Smith, Edna Kessler Mitchell and Louise Kessler Muettmann. The last-named defendant died pending the suit and Estelle M. Smith, executrix of the estate, was substituted as a defendant. The third car involved in the collision was plaintiff's Plymouth, which she was driving at the time. Highway 66, at the point of collision and for some distance each direction, was level and straight. It was a three-lane paved highway, each lane being ten feet in width. The day was clear and dry and the collision occurred at about 10 a. m. In the course of the opinion we will refer to the truck and trailer of the defendant Voss Truck Lines, Inc., as "the truck", the car owned by the other defendants as "the Ford" and plaintiff's car as "the Plymouth". The truck and the Ford were being driven westerly and the Plymouth easterly. The collision occurred in front of a filling station referred to in the evidence as the Motogas station. At each end of the station grounds was a large tank. The distance between them was about two hundred and seventy-five feet. The tanks and pumps of the filling station were about fifty feet north of the pavement. Each of the appellants urged that the evidence was insufficient to sustain a verdict for plaintiff. There was no contention that plaintiff was in any way negligent. Plaintiff testified that as she passed the front end of the truck the Ford suddenly appeared from behind it, crossed the highway from north to south directly in her pathway and that her car struck the Ford on the right-hand side about the middle. There was little if any dispute as to this. The controversy was as to what caused the Ford to take that sudden journey south. The driver of the Ford, a young man about sixteen years of age, testified that when he was a short distance east of the filling station, driving in the north lane at a speed of about twenty-five miles per hour, he noticed the truck approaching from the rear; that the truck turned toward the center lane to pass him and as it pulled by it cut toward the right, or back to the north lane, and the rear end of the trailer collided with his car throwing him from his seat to the floor, the right front seat having been removed; that probably as he fell he gave the steeringwheel a jerk causing the car to suddenly go across the road where it was struck by plaintiff's car. The driver of the Ford was corroborated in his evidence as to the truck cutting over and striking the front end of the Ford by two witnesses who testified for the owners of the Ford. These witnesses were at the filling station at the time and testified they saw the collision which they said occurred in front of the station. That evidence, we think, was sufficient to support a finding that the truck driver was negligent in operating his truck, particularly in cutting back to the north lane too soon and thereby colliding with the Ford. The appellants, however, insist that such a theory is contrary to plaintiff's own evidence. It is asserted that plaintiff testified that when she saw the truck it was in the center lane and she did not see it swerve to the north. Appellants therefore say that plaintiff's case cannot be aided by the evidence of the driver of the Ford and of the two eyewitnesses who testified on behalf of the owners of the Ford. The cases of Meese v. Thompson, 344 Mo. 777, 129 S.W.2d 847; Dilallo v. Lynch, 340 Mo. 82, 101 S.W.2d 7; Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600; Ellis v. Wolfe-Shoemaker Motor Co., 227 Mo.App. 508, 55 S.W.2d 309, and Behen v. St. Louis Transit Co., 186 Mo. 430, 85 S.W. 346, were cited as authority. The rule announced in those cases is that a plaintiff is entitled to the benefit of any evidence offered by a defendant, unless such evidence contradicts plaintiff's own evidence and is at war with his own theory of the case. That rule, however, cannot be applied to the situation we have before us. Plaintiff testified she was driving east upon the three-lane highway and saw the truck approaching in the center lane. Her lane was entirely free of traffic. As to whether the truck remained in the center until the collision, she testified that she had no occasion to pay much attention to it. But note her answer to a question on that point, which we think sufficient to refute appellants' contention: "A. It might have swerved either way without me being aware of it, because I wasn't paying that much attention."

Plaintiff did not pretend to know what caused the Ford to cross the highway. She, of course, could not have seen the rear end of the trailer come in contact with the Ford because the front end of the truck obstructed her view. In the circumstances we must rule against appellants.

It is urged by appellant, Voss Truck Lines, Inc., that instruction number one, given at plaintiff's request, broadened the issues raised by the pleadings and was therefore prejudicially erroneous. In the argument on this point the following is said:

"Without reiterating what has been stated, we believe it will suffice to note that the only specification of negligence which could possibly justify the giving of instruction No. 1 is that allegation which reads as follows: `Defendant Voss Truck Lines, Inc., negligently and carelessly turned and swerved its said automobile truck so as to cause its said truck to come into close and dangerous proximity to said automobile of defendants, operating as Kessler's, and the resulting collision with plaintiff's automobile'.

"Turning to instruction No. 1, it will be noted that the jury was charged that if they found that the Voss truck was brought into the north lane of said highway and into the path of the Ford automobile, and into close and dangerous proximity to the automobile, and did collide with said Ford automobile, and that the Ford automobile was thus and thereby caused to turn to the south lane of said highway and to collide with the automobile of the plaintiff, then their verdict would be in favor of the plaintiff and against the defendant Voss Truck Lines, Inc.

"This appellant was not charged with negligence, as the issues were framed by the pleadings, with driving its truck...