Hillis v. Home Owners' Loan Corp., 37117.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBohling
Citation154 S.W.2d 761
PartiesLILLIAN B. HILLIS v. HOME OWNERS' LOAN CORPORATION, a Corporation, and LOUIS E. KOONTZ, Appellants, CARRIE ALLEN RICE, Defendant.
Docket NumberNo. 37118.,No. 37117.,37117.,37118.
Decision Date25 September 1941
154 S.W.2d 761
LILLIAN B. HILLIS
v.
HOME OWNERS' LOAN CORPORATION, a Corporation, and LOUIS E. KOONTZ, Appellants, CARRIE ALLEN RICE, Defendant.
No. 37117.
No. 37118.
Supreme Court of Missouri.
Division Two, September 25, 1941.
Rehearing Denied, October 25, 1941.
Motion to Transfer to Banc Overruled, October 25, 1941.

[154 S.W.2d 762]

Appeal from Circuit Court of City of St. Louis.Hon. David J. Murphy, Judge.

PLAINTIFF'S APPEAL DISMISSED AND JUDGMENT AGAINST APPELLANTS-DEFENDANTS AFFIRMED CONDITIONALLY.

Redick O'Bryan, Kenneth Teasdale and Vaughn C. Ball for Home Owners' Loan Corporation and Louis E. Koontz.

(1) The plea in abatement of defendant Home Owners' Loan Corporation should have been sustained. Prato v. Home Owners' Loan Corp., 24 Fed. Sup. 844, 106 Fed. (2d) 128; Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 59 Sup. Ct. 106. (2) An instruction which commingles inconsistent and conflicting theories of negligence is erroneous. Plaintiff's Instruction 2 submitted plaintiff's case as to defendants Koontz and Home Owners' Loan Corporation on specifications of negligence, both as to excessive speed and as to failure to slacken, conjunctively, requiring the jury (in finding against these defendants) to find both that defendant Koontz was proceeding at a negligently high and excessive rate of speed and that he could have slackened his speed sufficiently and in time to avoid the collision, but negligently failed to do so. These were repugnant, inconsistent and mutually exclusive theories of negligence, and the instruction was erroneous in submitting both of them. Elliott v. Richardson, 28 S.W. (2d) 408; Tunget v. Cook, 84 S.W. (2d) 970; Behen v. St. Louis Transit Co., 186 Mo. 430, 85 S.W. 346; Dilallo v. Lynch, 340 Mo. 82, 101 S.W. (2d) 7; Crews v. Wilson, 312 Mo. 643, 281 S.W. 44; White v. St. Louis & M. Ry. Co., 202 Mo. 539, 101 S.W. 14. (3) When no substantial evidence is adduced supporting a specification of negligence, it should not be submitted to the jury. There was no substantial evidence warranting the submission, in plaintiff's Instruction 2, of the theory that defendant Koontz could have slackened his speed so as to have avoided the collision, but negligently failed to do so, and said instruction should, therefore, have been refused, and it was error to give it, and to refuse Instruction E, offered by defendants Koontz and Home Owners' Corporation, withdrawing said specification from the jury's consideration. Arkla Lbr. & Mfg. Co. v. Quellmalz Lbr. & Mfg. Co., 252 S.W. 961; Rosemann v. United Rys. Co. of St. Louis, 197 Mo. App. 337, 194 S.W. 1088. (4) It is error to admit evidence not relevant to the issues raised by the pleadings. No issue was raised by the pleadings as to the failure of any defendant to give the right of way at the intersection, and the Missouri law concerning such right of way was not pleaded. It was error, therefore, to admit testimony by defendant Koontz (as a witness for plaintiff) as to such law or his knowledge of the same, and as to which car had the right of way. Fowler v. M., K. & T. Ry. Co., 229 Mo. App. 561, 84 S.W. (2d) 194; Lyell v. Cox, 245 S.W. 343. (5) When evidence which is not relevant to any issue in the case has been improperly admitted, raising an issue not made by the pleadings, it should be withdrawn from the jury's consideration, especially when it is prejudicial in nature and likely to confuse and mislead the jury if not withdrawn. The testimony concerning right of way and the law of right of way was irrelevant, prejudicial to defendants Koontz and Home Owners' Loan Corporation and tended to confuse the jury, and Instruction L, offered by defendants Koontz and Home Owners' Loan Corporation, withdrawing such testimony from the jury's consideration, should have been given. Fowler v. M., K. & T. Ry. Co., 229 Mo. App. 561, 84 S.W. (2d) 194; Lyell v. Cox, 245 S.W. 343 (6) Defendants Koontz and Home Owners' Loan Corporation were entitled to have the jury instructed on any defense properly pleaded and supported by the evidence. Their Instruction N was a correct statement of the law, submitting the defense that the negligence of defendant Rice, as specified in the instruction, was the sole cause of plaintiff's injuries; said instruction was supported by the evidence, and its refusal was prejudicial error because such refusal in effect destroyed the case of these defendants as made by the pleadings and evidence. Engelman v. Ry. Express Agency, 340 Mo. 360, 100 S.W. (2d) 540. (7) The verdict was excessive, and so highly excessive as to show conclusively that it was the result of bias, passion and prejudice. It was error to allow it to stand without a new trial or a remittitur. Keifer v. St. Joseph, 243 S.W. 104; Mount v. Western Coal & Mining Co., 294 Mo. 603, 243 S.W. 943; Loof v. Kansas City Ry. Co., 246 S.W. 578; Reynolds v. St. Louis Transit Co., 189 Mo. 408, 88 S.W. 50; Meyers v. Wells, 273 S.W. 110; Page v. Payne, 293 Mo. 600, 240 S.W. 156.

Mark D. Eagleton, James A. Waechter and Roberts P. Elam for Lillian B. Hillis.

(1) That defendant, having conceded that the plaintiff made a submissible case for the jury against it, by failing to here assign as error the refusal of its requested peremptory instructions in the nature of demurrers to the evidence, waived its right to a review of a ruling on the plea of abatement. Heigold v. United Rys. Co., 308 Mo. 142, 217 S.W. 773; Williams v. St. Louis Pub. Serv. Co., 335 Mo. 335, 73 S.W. (2d) 199; Kleinlein v. Foskin, 321 Mo. 887, 13 S.W. (2d) 648; Gray v. Kurn, 137 S.W. (2d) 558. (a) In any event, the Home Owners' Loan Corporation is not possessed of the same immunity from suit as is the United States of America, but it is, on the contrary, subject to suit of any character, just as is any other business corporation. 12 U.S.C.A., sec. 1463; Kiefer & Kiefer v. Reconstruction Finance Corp., 306 U.S. 381, 59 Sup. Ct. 516, 83 L. Ed. 784; Prato v. Home Owners' Loan Corp., 106 Fed. (2d) 128. (2) There was no reversible error in the action of the trial court in giving Instruction 2 at the instance and request of plaintiff, because: (a) The instruction was not erroneous in submitting, in the conjunctive, negligence on the part of defendant Koontz in operating his automobile at a negligent rate of speed, negligently failing to slacken the speed of his automobile, and negligently failing to turn or swerve his automobile. Each of these specifications of negligence was amply supported by the evidence, and there is no inconsistency or repugnancy between them. Haley v. Mo. Pac. Ry. Co., 197 Mo. 15, 93 S.W. 1120; White v. St. L. & M. Ry. Co., 202 Mo. 539, 101 S.W. 14; Farrar v. Met. St. Ry. Co., 249 Mo. 210, 155 S.W. 439; Taylor v. Met. St. Ry. Co., 256 Mo. 191, 165 S.W. 327; Montague v. M. & K.I. Ry. Co., 305 Mo. 269, 264 S.W. 813; Rawie v. Chicago, B. & Q. Ry. Co., 310 Mo. 72, 274 S.W. 1031; Williams v. St. Louis Pub. Serv. Co., 335 Mo. 335, 73 S.W. (2d) 199; Bumgardner v. St. Louis Pub. Serv. Co., 340 Mo. 521, 102 S.W. (2d) 594. (b) The instruction was not erroneous in submitting the issue of defendant Koontz's negligent failure to slacken the speed of his automobile, in that: There was ample evidence to support that issue. Spoeneman v. Uhri, 332 Mo. 821, 60 S.W. (2d) 9; Payne v. Reed, 332 Mo. 343, 59 S.W. (2d) 43; Steger v. Meehan, 63 S.W. (2d) 109. In any event, the instruction submitted, in the conjunctive, three specifications of negligence on the part of defendant Koontz, and mere absence of evidence to support one of those specifications would not render the instruction reversibly erroneous. Sec. 1062, R.S. 1929; Oesterle v. Kroger Gro. & Baking Co., 141 S.W. (2d) 780; Hodgins v. Jones, 64 S.W. (2d) 309; Tash v. St. Louis-S.F. Ry. Co., 335 Mo. 1148, 76 S.W. (2d) 690; Berry v. Baltimore & O. Ry. Co., 43 S.W. (2d) 782; McKenzie v. Randolph, 257 S.W. 126; Wolfe v. Payne, 284 Mo. 170, 241 S.W. 915; McIntyre v. St. Louis & S.F. Ry. Co., 286 Mo. 234, 227 S.W. 1047; Rigg v. Chicago, B. & Q. Ry. Co., 212 S.W. 878; State ex rel. Kibble v. First Natl. Bank, 22 S.W. (2d) 185; Webster v. International Shoe Co., 18 S.W. (2d) 131; Agee v. Herring, 221 Mo. App. 1022, 298 S.W. 250. (3) There was no error in the trial court's refusal to give the appealing defendants' requested instructions E and I, which sought to withdraw the issues of Koontz's operation of his automobile at a negligent speed and of his negligent failure to slacken the speed of his automobile. Those issues were properly submissible, and properly submitted, to the jury. Authorities under Point (2). (4) There was no error in the trial court's refusal to give the appealing defendants' requested Instruction N in the nature of a so-called "sole cause instruction," and predicating nonliability of the appealing defendants upon negligence of their co-defendant, Mrs. Rice, as the sole cause of the collision, because: (a) This instruction was erroneous in that it plainly assumed that Mrs. Rice was guilty of negligence. This unwarranted assumption rendered the instruction prejudicially erroneous, and the giving of it would have constituted reversible error. Kirkham v. Jenkins Music Co., 340 Mo. 911, 104 S.W. (2d) 234; Mahaney v. Kansas City, C.C. & St. J. Auto Transit Co., 329 Mo. 792; 46 S.W. (2d) 817; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W. (2d) 559; McCombs v. Ellsberry, 337 Mo. 491, 85 S.W. (2d) 135. (b) This instruction was without support in the evidence, which was wholly insufficient to warrant a finding that the collision directly and proximately resulted solely from negligence on the part of Mrs. Rice, unmixed with negligence on the part of the defendant Koontz. This instruction was, therefore, erroneous in being broader than the evidence and without the scope of the evidence. Gould v. Chicago, B. & Q. Ry. Co., 314 Mo. 713, 290 S.W. 135; Schuetter v. Enterprise Comm. Corp., 34 S.W. (2d) 976; Felts v. Spesia, 61 S.W. (2d) 402;...

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23 practice notes
  • Yates v. Manchester, 40883
    • United States
    • United States State Supreme Court of Missouri
    • February 14, 1949
    ...without foundation in evidence. Hollister v. A.S. Aloe Co., 348 Mo. 1055, 156 S.W.2d 606; Hillis v. Home Owners' Loan Corp., 348 Mo. 601, 154 S.W.2d 761. (9) Instructions 3 and 6 erroneously submitted the disjunctive charge of a failure to keep a lookout (1) although abandoned against Mitch......
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    • United States
    • United States State Supreme Court of Missouri
    • December 13, 1948
    ...764, 137 S.W.2d 548; Bumgardner v. St. Louis Pub. Serv. Co., 340 Mo. 521, 102 S.W.2d 594; Hillis v. Home Owners' Loan Corp., 348 Mo. 601, 154 S.W.2d 761; Williams v. St. Louis Pub. Serv. Co., 335 Mo. 335, 73 S.W.2d 199; Hillis v. Rice, 151 S.W.2d 717; Sec. 8383, R.S. 1939; Sec. 140 (B) of t......
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    • United States
    • United States State Supreme Court of Missouri
    • September 8, 1947
    ...349 Mo. 1249, 164 S.W.2d 336; Hollister v. A.S. Aloe Co., 348 Mo. 1055, 156 S.W.2d 606; Hillis v. Home Owners' Loan Corp., 348 Mo. 601, 154 S.W.2d 761; Collins v. Leahy, 344 Mo. 250, 125 S.W.2d 874; Crews v. K.C. Pub. Serv. Co., 341 Mo. 1090, 111 S.W.2d 54; Fassi v. Schuler, 349 Mo. 160, 15......
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    • United States State Supreme Court of Missouri
    • March 10, 1947
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11 cases
  • McCaffery v. St. Louis Public Service Co., No. 42737
    • United States
    • United States State Supreme Court of Missouri
    • October 13, 1952
    ...177, 227 S.W.2d 675; Gieseking v. Litchfield & M. R. Co., 344 Mo. 672, 127 S.W.2d 700; Hillis v. Home Owners' Loan Corp., 348 Mo. 601, 154 S.W.2d 761; Hoelzel v. Chicago, R. I. & P. R. Co., 337 Mo. 61, 85 S.W.2d 126; Id., 340 Mo. 793, 102 S.W.2d 577; Messing v. Judge & Dolph Drug Co., 322 M......
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    • United States State Supreme Court of Missouri
    • October 25, 1941
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