Hicks v. Simonsen

• Citation: 270 S.W. 318,307 Mo. 307
• Decision Date: 19 March 1925
• Docket Number: 24266
• Parties: CLIFFORD J. HICKS and LILLARD HICKS v. N. K. SIMONSEN, Doing Business as SIMONSEN'S PIE BAKERY, Appellant
• Court: United States State Supreme Court of Missouri

270 S.W. 318

307 Mo. 307

CLIFFORD J. HICKS and LILLARD HICKS v. N. K. SIMONSEN, Doing Business as SIMONSEN'S PIE BAKERY, Appellant

No. 24266

Supreme Court of Missouri

March 19, 1925

Appeal from Buchanan Circuit Court; Hon. Thomas B. Allen Judge.

Affirmed.

Culver Phillips & Voorhees for appellant.

(1) The court erred in permitting the introduction of any evidence and in overruling the demurrer to the evidence, because Secs 4218 and 4219, R. S. 1919, on which the action is based, are violative of Sec. 1, Art. 14, Amendments to the Constitution of the United States, in that they deny to appellant the equal protection of the law. See cases collated 11 Mallory's U.S. Comp. Stat. Anno. p. 822; Setters v. Hays, 72 N.E. 119; Borguis v. Folk, 133 N.W. 209; Grier v. Railroad Co., 228 S.W. 454; Roberts v. Trunk, 179 Mo.App. 332. (2) The court erred in sustaining the plaintiffs' challenge to the Juror Marlin otherwise qualified, solely on the ground that Sec. 665, R. S. 1919, authorizes the challenge of a juror if the juror's employer is or within six months has been the client of the attorney representing appellant, because said section is violative of Sec. 53, Art. 4, Mo. Constitution. Dunne v. Ry. Co., 131 Mo. 5; Wooley v. Mears, 226 Mo. 50; State ex rel. v. Messerly, 198 Mo. 356; State ex rel. v. Miller, 100 Mo. 449; Setters v. Hays, 72 N.E. 119. (3) The court erred in overruling the demurrer to the evidence, because there is no substantial evidence to sustain the charge of negligence in the petition. (4) The court erred in giving plaintiffs' Instruction 7 on the measure of damages, because: (a) The instruction did not limit the recovery to the value of the child's services during minority, and burial and other expenses incurred by her sickness and death, less the expenses of her support and maintenance during that time. This is the correct measure of damages and the limit of liability. Degan v. Jewell, 230 S.W. 66; Leahy v. Davis, 121 Mo. 233; Parsons v. Railroad, 94 Mo. 296. (b) The instruction told the jury to assess the damages at such sum as they might believe from the evidence "would reasonably compensate plaintiffs for the death of their daughter, in such an amount as the jury might deem fair and just," and that in arriving at that amount, they might consider the value of the child's services during minority and the necessary expenses, instead of telling the jury that the pecuniary loss was limited to the value of such services and such expenses less the expense of her support and maintenance during minority. (c) The instruction authorized the jury to consider aggravating circumstances in arriving at the amount of their verdict, when there was no evidence of aggravating circumstances and when no facts were pleaded in the petition upon which to base exemplary damages, and when the amount of exemplary damages claimed was not separately stated in the petition. State ex rel. v. Ellison, 270 Mo. 567. (d) The instruction did not point out the facts or circumstances which if found would have the effect of aggravating the damages, but left the jury to grope in the dark and determine for themselves what fact or circumstances were sufficient to have the effect of aggravating the damages. Parsons v. Railroad, 94 Mo. 296.

Randolph & Randolph for respondent.

(1) Defendant charges that Sections 4218 and 4219 are unconstitutional, and this solely because he thinks there is a conflict between Sections 4217 and 4219, and that the conflict leaves Section 4217 unimpaired, but leaves the other sections which he selects for that purpose unconstitutional. Of course there is absolutely nothing in his point as made and preserved, and there would be nothing in it had he preserved it in some other form. (2) The question of the constitutionality of Sec. 6655, R. S. 1919, is not in this case at all, although the juror Marlin, who was one of the editors of a newspaper, a corporation, and client of appellant's attorneys, was excused from the jury on account of that section. The court continually exercises discretion in the discharge of jurors and the point is seldom preserved. There is no statutory prohibition against leaving a client, that is, a private client, of any attorney in a case or his employee, on the jury, yet constantly in the interest of justice and in the interest of securing a fair and impartial jury, the court excuses clients of attorneys, the employees of clients of attorneys and the relatives of attorneys, and it is the proper exercise of discretion. Even had there been no statute it would have been a proper thing to have excused the Juror Marlin. It cannot be contended that Section 6655 is not one of the laws of the State. Section 6666 clearly gives the same right to challenge under the provisions of 6655 as it does to challenge for the grounds stated in Section 6632. This answers plaintiff's contention that Section 6655 is a local law. (3) Appellant's criticism of Instruction 7, that being the instruction as to the measure of damages, is wholly without merit and is not supported by any of the decisions. The instructions simply followed the language of the statute authorizing the action. Dalton v. Refining Co., 188 Mo.App. 529; Sharp v. National Biscuit Co., 179 Mo. 553; Dugdale v. Ry., Light, Heat and Power Co., 195 Mo.App. 256; Sec. 7585, R. S. 1919; Sec. 7593, R. S. 1919; Roberts v. Trunk, 179 Mo.App. 362; State ex rel. Dunham v. Ellison, 278 Mo. 649. (a) The verdict in this case is not a large verdict when everything is considered. The verdict for loss of service is about thirty-four hundred dollars. The remainder of the verdict is for expenses, money actually paid out. (b) The only instruction on the measure of damages asked by appellant is his Instruction 4, which omits the point that he contends should have been embodied in respondents' Instruction 7. Appellant did not ask any instruction containing the limitation "less the expense of her support and maintenance during minority," and, of course, it is very apparent why he did not do so, as there is absolutely no evidence whatever in this case as to any expenditure of costs of care and maintenance, nor as to probable cost of care and maintenance in the future. That element for that reason was not in the case and was waived by appellant. Baldwin v. Harvey & Dunham, 191 Mo.App. 233; Drakes v. City of Bosworth, 140 Mo.App. 37.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On August 17, 1921, Clifford J. Hicks and Lillard Hicks, his wife, filed in the Circuit Court of Buchanan County, Missouri, an action for $ 10,000 damages against N. K. Simonsen, doing business as Simonsen's Pie Bakery, on account of the alleged injury and death of plaintiffs' infant child, Betty Hicks.

On November 16, 1921, a first amended petition was filed, on which the cause was tried. It alleges in substance that the plaintiffs are the natural father and mother of Betty Hicks deceased, who was at the time of her death, hereafter mentioned, a single and unmarried infant five years of age; that defendant was engaged in the bakery business in St. Joseph, Missouri, and as a part of same owned and operated an automobile delivery wagon in connection therewith; that St. Joseph is a municipal corporation of Missouri, and a city of the first class; that Seventeenth Street in said city runs north and south and Francis Street runs east and west therein; that both streets are public thoroughfares in said city and intersect each other; that on April 15, 1921, Betty Hicks, the infant child of plaintiffs, was lawfully on the west side of Seventeenth Street, at its intersection with Francis Street, and defendant, through its servant, Harold Everett Tarwater, while driving a delivery automobile in a westerly direction upon Francis Street, and turning from there in a northerly direction upon Seventeenth Street, upon the business of defendant, carelessly, negligently and recklessly drove and operated said automobile at a high and excessive rate of speed; that Francis and Seventeenth streets are paved with smooth, hardfaced paving, which at said time were wet and slippery from rain; that said Tarwater, while thus operating said automobile west along Francis Street, carelessly and negligently failed to take into account the probability of said automobile skidding on said streets; that Francis Street, as it approaches the intersection of Seventeenth Street from the east, is a down hill grade; that said Tarwater continued to carelessly and negligently drive said automobile at said high and excessive rate of speed down said hill, carelessly and recklessly turned said automobile from its westerly course on Francis Street, to a northerly direction on Seventeenth Street and, in so turning, carelessly, negligently and recklessly caused said car to move to, upon and along the west or left-hand side of Seventeenth Street at the point where Seventeenth Street intersects the north side of Francis Street, at the place where pedestrians usually pass across Seventeenth Street, on the north side of Francis Street, and carelessly and negligently caused said automobile to skid toward the west at said point of intersection, so that said automobile struck, ran against, upon and over said Betty Hicks, who was then and there lawfully upon that portion of said intersection as aforesaid, west of the center of Seventeenth Street and near the west curb of the latter, and that said Tarwater so carelessly and negligently ran said automobile against, upon and over said Betty Hicks as aforesaid, when he saw, or in the exercise of ordinary care and prudence should have seen, said Betty Hicks, so as to have avoided striking her and causing her death, which occurred on June 8, 1921. It is charged that Tarwater was a careless, reckless and negligent...