Hillis v. Rice

• Decision Date: 03 June 1941
• Docket Number: No. 25640.,25640.
• Citation: 151 S.W.2d 717
• Parties: HILLIS v. RICE et al.
• Court: Missouri Court of Appeals

151 S.W.2d 717

HILLIS v. RICE et al.

No. 25640.

St. Louis Court of Appeals. Missouri.

June 3, 1941.

Rehearing Denied June 17, 1941.

Appeal from St. Louis Circuit Court; Thomas J. Rowe, Judge.

"Not to be reported in State Reports."

Action by Lee Hillis against Carrie Allen Rice, the Home Owners Loan Corporation, and Louis E. Koontz, to recover damages caused by injuries to plaintiff's wife in an automobile collision. From a judgment in favor of plaintiff against the last two-named defendants and in favor of the first-named defendant, plaintiff and the last two-named defendants appealed, but plaintiff subsequently abandoned his appeal and asked that judgment be affirmed.

Affirmed.

Redick O'Bryan, Kenneth Teasdale, and Vaughn C. Ball, all of St. Louis, for appellants.

Mark D. Eagleton and Roberts P. Elam, both of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover damages resulting to plaintiff on account of personal injuries sustained by his wife, Lillian B. Hillis, in a collision between an automobile in which she was riding, and which was being driven by defendant Carrie Allen Rice, and an automobile driven by defendant Louis E. Koontz. The collision occurred on February 4, 1938, at the intersection of Gratiot and Sixth Streets, in the City of St. Louis. Defendant Koontz, who was in the employ of defendant Home Owners Loan Corporation, was driving north on Sixth Street, and defendant Rice was driving west on Gratiot Street, when the collision occurred.

Plaintiff charges negligence on the part of defendants Home Owners Loan Corporation and Louis E. Koontz in the following respects, among others: (1) Said defendants operated their said automobile at an excessive rate of speed; and (2) said defendants failed to stop, slacken the speed of, or turn or swerve their said automobile, so as to avoid the collision.

The separate answer of defendant Koontz consists of a general denial and a plea of contributory negligence.

The answer of defendant Home Owners Loan Corporation consists of a plea in abatement, a general denial, and a plea of contributory negligence.

Defendant puts its plea in abatement on the ground that, as a corporation created by an Act of Congress, it is an instrumentality or agency of the United States, engaged in the exercise of a governmental function, and as such is immune from suit, particularly from a suit, such as this, sounding in tort.

The trial, with a jury, resulted in a verdict in favor of plaintiff against defendants Home Owners Loan Corporation and Louis E. Koontz for $7,500, and in favor of defendant Carrie Allen Rice, and judgment was given accordingly. From this judgment plaintiff and defendants Home Owners Loan Corporation and Louis E. Koontz have appealed here. Plaintiff, however, has abandoned his appeal and asks that the judgment be affirmed.

Defendant Home Owners Loan Corporation assigns error on the part of the trial court for having overruled its plea in abatement.

The Act of Congress under which defendant Home Owners Loan Corporation was created provides that such corporation "shall have authority to sue and to be sued in any court of competent jurisdiction, Federal or State." 48 Stat. 129, 12 U.S.C.A. § 1463.

Defendant puts its assignment of error on the theory that inasmuch as the government is immune from suit without its consent, therefore a governmental agency or instrumentality exercising a governmental function is likewise immune. It is held, however, that the government does not become the conduit of its immunity in suits against its agents or instrumentalities merely because they do its work. Congress may, of course, endow a governmental corporation with the government's immunity. But always the question is: Has it done so? Immunity is not presumed. Congress not only has not endowed defendant with the government's immunity, but has expressly authorized it to sue and to be sued in any court of competent jurisdiction, state or federal. The consent thus granted is without qualification. It is not restricted to suits sounding only in contract. We can see no reason, and none has been suggested, for the interpolation of such a restriction. Defendant being authorized without qualification to sue and to be sued, it must be held suable in an action of tort. Keifer & Keifer v. Reconstruction Finance Corp., 306 U. S. 381, 59 S.Ct. 516, 83 L.Ed. 784; Prato v. Home Owners' Loan Corporation, 1 Cir., 106 F.2d 128; Reconstruction Finance Corp. v. J. G. Menihan Corp., 61 S.Ct. 485, 85 L.Ed. ___.

The plea in abatement was properly overruled.

Appellants assign error here upon the giving of plaintiff's instruction No. 1, which directed a verdict for plaintiff if the jury found that defendant Koontz operated his automobile at an excessive and negligent rate of speed, and that defendant Koontz by the exercise of the highest degree of care could have slackened the speed of his automobile and thus and thereby could have avoided the collision, and that defendant Koontz by the exercise of the highest degree of care could have turned or swerved his automobile away from the automobile in which plaintiff and his wife were riding and thus and thereby could have avoided the collision, and that said defendant failed so to do, and in so failing was guilty of negligence, and that the collision occurred and plaintiff's wife was injured as a direct and proximate result of said acts of negligence. Appellants complain of the instruction for that it submits inconsistent and self-destructive postulates authorizing a verdict for plaintiff.

The question with which we are thus confronted necessitates a somewhat extended review of the decisions.

In Haley v. Missouri Pacific Ry. Co., 197 Mo. 15, 93 S.W. 1120, 1123, 114 Am.St.Rep. 743, the court in banc said: "The petition charged that the defendant was negligent in the matter of speed and it also charged that the defendant negligently failed to stop the train in time to avoid the collision after the danger was apparent. These two charges are not necessarily inconsistent, because they might both be true; that is, the train might have been moving at a rate of speed that under the circumstances was negligent and yet it might be that the engineer could have stopped it in time to have avoided the accident by the use of ordinary care. But the defendant would not be liable, under what we call the humanitarian doctrine, if the speed of the train was such as to render it impossible for the engineer by the exercise of ordinary care to have stopped it in time, although the speed may have been negligent. Therefore, whilst it is negligence to run a train into a place where danger of collision is to be expected at such rate of speed that it could not be quickly stopped on appearance of danger, still it cannot be said that the defendant is liable for failing to stop the train after discovering the peril if in fact the speed was such that the engineer could not stop it."

In White v. St. Louis & Meramec River R. Co., 202 Mo. 539, 101 S.W. 14, 20, answering the contention that the charge in plaintiff's petition of negligent speed and negligently failing to stop, the court said that "it must be apparent on the face of things that the averments in plaintiff's petition charging negligence (whatever may be otherwise said of them) are not inconsistent — do not make a felo de se." And the court added: "All of them could be true at one and the same time. The gist of the specifications of negligence was that deceased was killed through defendant's fault, in, first, running in excess of ordinance speed, and, second, in not stopping the car when a stop was called for and could have been made — both of which could be literally true together. For instance, if the car had been running at 8 miles an hour, deceased might have got over the track and gone safely on his way. So, too, if the car had been stopped, deceased would not have been killed."

In Taylor v. Metropolitan Street Ry. Co., 256 Mo. 191, 165 S.W. 327, 332, the court said:

"Appellant contends that the court erred in giving plaintiff's instructions, numbered 1 and 3; that `No. 1 authorizes recovery under the humanitarian rule; No. 3 on account of excessive speed. Both are argumentative, illegal, and inconsistent.' * *

"It is contended that these two grounds are inconsistent; that one disproves or destroys the other; that one is based upon `slow stopping,' and the other on `fast running.' The fallacy of this contention is revealed when it is recalled that the humanitarian rule is not based upon `slow stopping,' as intimated by appellant, but rather upon a failure to stop at all, or an absence of slackened speed, under certain circumstances. It therefore becomes apparent that a failure to stop or slacken speed is not inconsistent with running fast. Both conditions might exist at the same time, and especially so when, as here, the petition or evidence fails to allege or show that the fast running was so excessive as to prevent the stopping of the car within the time and distance prescribed by the humanitarian rule."

In Montague v. Missouri & Kansas Interurban Ry. Co., 305 Mo. 269, 264 S.W. 813, 817, in response to a contention that error was committed in submitting two assignments of negligence, because the one was contradictory and destructive of the other, the court said: "This contention, reduced to simple terms, is that a plaintiff who charges both excessive speed as negligence, and facts showing a violation of the humanitarian rule of negligence, cannot prove and submit both acts of negligence. Such is not the law of this state or any other state, so far as we know."

In Williams v. St. Louis Public Service Co., 335 Mo. 335, 73 S.W.2d 199, loc. cit. 203, the court said:

"It is next contended that plaintiff's instructions 1 and 2 submit inconsistent theories of recovery, in that instruction 1 proceeds upon the hypothesis that the collision could have been averted by stopping...