Hertz v. McDowell

• Decision Date: 16 June 1947
• Docket Number: No. 20866.,20866.
• Citation: Hertz v. McDowell, 203 S.W.2d 500 (Mo. App. 1947)
• Parties: HERTZ v. McDOWELL et al.
• Court: Missouri Court of Appeals

203 S.W.2d 500

HERTZ v.McDOWELL et al.

No. 20866.

Kansas City Court of Appeals. Missouri.

June 16, 1947.

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

"Not to be published in State Reports".

Suit by Lyde H. Hertz against Wallace G. McDowell and others, doing business as McDowell Tire Company, and another, for wrongful death of plaintiff's decedent when struck by a truck.Verdict and judgment for plaintiff, and defendants appeal.

Judgment affirmed.

Henry W. Buck, W. H. Hoffstot and Morrison, Nugent, Berger, Hecker & Buck, all of Kansas City, for appellants.

Albert L. Reeves, Jr., Henry I. Eager, Kenneth E. Midgley and Blackmar, Newkirk, Eager, Swanson & Midgley, all of Kansas City, for respondent.

BOYER, Commissioner.

Saturday afternoon, March 31, 1945, Alfred W. Hertz was killed at 12th and Walnut Streets in Kansas City, Missouri, when he was struck by a truck owned by defendants McDowell and Daugherty, and operated at the time by defendant Brown as their agent and servant.The plaintiff as executrix of the estate of deceased sued for his wrongful death and obtained a jury verdict and a judgment against all defendants in the sum of $7000.From that judgment the defendants have duly appealed and seek a reversal of the judgment and a remanding of the case on the ground that the court committed reversible error in giving plaintiff's Instruction B on the measure of damages, and as a result the verdict was excessive.

The amended petition upon which the case was tried states that Alfred W. Hertz, the deceased, was at all times single and unmarried; that he left no wife or natural born or adopted child surviving him; that he died testate, and that plaintiff is the sole beneficiary of his will; that plaintiff was dependent upon the deceased for support; that he had supported her for a long period of time, was supporting her at the time of his death, and would have continued doing so; that the defendants McDowell and Daugherty, were partners engaged in business under the name of McDowell Tire Company; that they were engaged in buying, selling, delivering, and repairing automobile and truck tires and automobile accessories; that they owned the truck in question and had employed defendant Brown as their agent and servant; that on the date in question, Alfred W. Hertz was crossing from the south to the north side of 12th Street in Kansas City, at its intersection with Walnut Street, both of which were public streets and thoroughfares in said city; that the deceased was in the pedestrian path at the time he was struck by the truck operated by defendant Brown, and that he died on the same day from injuries received; that the truck was so carelessly and negligently operated as to cause it to strike Mr. Hertz and to injure him in such manner as to cause his death.

The petition then sets forth certain provisions of the Motor Vehicle Traffic Code of Kansas City, which prescribes the conduct to be observed by operators of motor vehicles in reference to traffic control signals, one section of which provides that it shall be unlawful for the operator of any vehicle to fail to yield the right of way to any pedestrian crossing a street in a crosswalk on a green signal.Another section of said ordinance provides that every motor truck in use upon the streets of Kansas City shall have attached thereto a gong, bell, horn or other adequate signal in good working order sufficient to give warning of such vehicle.Another section provides that every motor vehicle shall be provided with at least two adequate brakes, each of which shall work independently of the other, and that such service brakes shall be adequate to stop such vehicle when traveling 20 miles per hour within a distance of 30 feet upon a dry asphalt pavement.Another section provides for restrictions as to speed to be such that the speed shall not be greater than is reasonable and prudent, having due regard to the traffic, surface, and width of the street and the hazard at intersections, and other conditions then existing; that every driver shall exercise the highest degree of care in driving at a rate of speed so as not to endanger the life, limb or property of any person.

The petition further states that traffic at the street intersection in question was controlled by traffic control signals within the meaning of the ordinance in question; that the deceased was walking across 12th Street with a green light, but that defendants negligently and in violation of the ordinance failed to yield to him the right of way across said intersection, and operated the truck into and across the intersection and the pedestrian crosswalk against a red light.

The petition then charges specific violations of the ordinance aforesaid in that the truck was not provided with two adequate brakes working independently; that they were inadequate to stop the truck; that the truck was operated at a high and excessive rate of speed without regard to traffic and other circumstances and hazards present at the time, and that no warning was given to deceased of the approach of the truck.

It is also charged that the operator of the truck, in attempting to shift or move the gears, negligently and carelessly did so in such manner as to put the mechanism in second gear so as to cause the truck to move forward swiftly and violently instead of to slacken its speed or stop the same; that all the aforesaid acts of the defendants were performed with such recklessness and indifference to their civil obligations and to the rights of the deceased and of this plaintiff that by reason thereof plaintiff is entitled to damages, having regard to the mitigating or aggravating circumstances attending their conduct as alleged.

The answer of the defendants admits their relationship as partners and the conduct of their business as alleged in the petition; that Alfred W. Hertz was in a collision with the truck of defendants at the time and place alleged, and that as a result he suffered injuries from which he died.The defendants admit that George Howard Brown was operating the truck as agent, servant and employee of the other defendants.The answer also admits that on the 31st of March 1945, the traffic ordinance referred to in plaintiff's amended petition was in full force and effect in Kansas City, Missouri; that the intersection of 12th and Walnut Streets was controlled by traffic control signals; that the deceased was using the east crosswalk at the intersection of 12th and Walnut Streets as a pedestrian, and that he was walking on a green light signal, and admits that a red light signal was facing the operator of defendants' truck.Other allegations of the petition were denied.There was no affirmative defense alleged.

The case was called for trial May 6, 1946.Appellants concede that the plaintiff was duly appointed as executrix of the estate of her son, Alfred W. Hertz, who was killed, and as such executrix instituted this suit for his death.Various sections of the city ordinance described as the Motor Vehicle Traffic Code were read into the record as alleged in the petition.

Plaintiff appeared in court in a wheel chair and testified in her own behalf.She stated that she was 90 years of age on the 28th of March of that year; that many years before, and when she was 65 years of age, she had a fall and broke her left hip; that she had suffered two accidental falls since, in one of which she had injured her right knee and that she could not walk; that otherwise she was all right; that she suffered pain and took sedatives which had been prescribed by one of her doctors; that she had had no doctor for anything other than for her leg for many years; that she had not had a cold for three years; that her vision and hearing were good; that she could read a newspaper with large print without glasses; that she had all of her permanent teeth, with only two small fillings.She testified that she owned her home at 2121 Benton in Kansas City, and that she handled her own personal affairs; that her husband died thirteen years ago and she was the mother of Alfred W. Hertz; that he was 62 years of age and had never been married; that he made his home with her ever since her husband's death; that her son was an architect and had been employed by the United States Engineers and did other work for which he received compensation; that he contributed to her support and gave her at least $125 a month in money or checks; that she spent it for household expenses and for a maid; that in addition to the money and checks which he gave her, he paid the utility bills and provided awnings and paint for the house.She said: "He practically supported me."She testified that he bought her many things in addition to the bills which he paid; that she would estimate he spent at least $15 a week in the purchase of groceries and in the payment of the utility bills and other items he purchased, in addition to the money he gave her; that in addition, he rendered many services about the house and yard in making repairs; that it would cost her at least $5 a week to pay for the work which he had done for her; that since his death it was necessary to have her maid remain with her constantly, and as a consequence she paid her $5 more a week than she formerly paid her.

On cross-examination, it was developed that plaintiff had another son who lived in Washington.She said he occasionally helped her and sent her money when he thought she needed it, and that since Alfred's death he had sent her $20 a month and perhaps more, she could not state exactly.

Two Physicians were called by plaintiff who testified in reference to her physical condition.One of them had given her an extensive and thorough examination in Menorah Hospital.Both testified, in substance, that plaintiff's injuries had not affected her general condition; that she had no organic disease or infection; that her heart was regular and her lungs clear; that her...