Hogan v. Kansas City Pub. Serv. Co.

• Decision Date: 23 August 1933
• Docket Number: No. 30842.,30842.
• Citation: 62 S.W.2d 856
• Parties: JOHN A. HOGAN, Appellant, v. KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation.
• Court: Missouri Supreme Court

62 S.W.2d 856

JOHN A. HOGAN, Appellant, v. KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation.

No. 30842.

Supreme Court of Missouri, Court en Banc.

August 23, 1933.

Appeal from Jackson Circuit Court. — Hon. Willard P. Hall. Judge.

AFFIRMED.

Buchholz & O'Donnell for appellant.

(1) The court erred in orally instructing the jury on a point of law arising in the case and in orally explaining the written Instruction P-3, as modified. Sec. 967, R.S. 1929; Berst v. Moxon, 163 Mo. App. 133; State v. Cooper, 45 Mo. 64; Malleson v. State, 6 Mo. 399; City v. Fisher, 61 Mo. App. 511; Sec. 1417, R.S. 1919; Sec. 5229, R.S. 1909; State v. Thompson, 83 Mo. 261; State v. Shipley, 174 Mo. 512; Belk v. Stewart, 160 Mo. App. 706; Peck v. Traction Co., 131 Mo. App. 142; 29 Cyc. 790; 38 Cyc. 1764, 1767; Thompson on Trials, Secs. 2375, 2377; State v. Jones, 61 Mo. 232; Sec. 1987, R.S. 1909; Lung v. Deal, 16 Ind. 349; Provines v. Heaston, 67 Ind. 482; Thompson on Charging the Jury, sec. 105; Head v. Langworthy, 15 Iowa, 235. (2) The court's Instruction marked D-6 was erroneous not only for the reason that it was in conflict with plaintiff's Instruction A, but because it was a comment on the evidence of the defendant. Chouquette v. Barada, 28 Mo. 491; State v. Witten, 100 Mo. 529; Jones v. Jones, 157 Mo. 138; State v. Sivilis, 105 Mo. 535; Hoffman v. Hoffman's Executor, 126 Mo. 499; Oil Well Supply Co. v. Wolfe, 127 Mo. 626; Ry. Co. v. Stock Yards Co., 120 Mo. 566; Leeser v. Boeckhoff, 33 Mo. App. 238; Johnson v. Ruth, 34 Mo. App. 664; Speer v. Burlingame, 61 Mo. App. 96. (3) The trial court erred in that it failed to give effect to the judgment of the Supreme Court en Banc of May 25, 1929, which operated to nullify the judgment of reversal rendered by Division One of this court on June 25, 1927, in that said trial court refused to reinstate the judgment of the trial court of February 18, 1925, which judgment was reversed by said Division One because of a mistake of fact. Clark v. Pinney, 6 Cow. 297; Hopkins v. Dawes, 319 Mo. 740; 40 C.J. 1228; Wilson v. Boughton, 50 Mo. 19; Landis v. Overton, 293 S.W. 371; Overton v. Overton, 327 Mo. 542; Globe Mining Co. v. Ridge Coal Co., 134 N.E. 508; Globe Mining Co. v. Coal Co., 177 N.E. 868; Krashin v. Grizzard, 326 Mo. 615.

Charles L. Carr and Watson, Ess, Groner, Barnett & Whittaker for respondent.

(1) There is no merit to appellant's contention that the trial court erred in orally instructing the jury because: (a) The point was not preserved in plaintiff's motion for a new trial, and is not before this court for review. Brainard v. Railroad, 319 Mo. 898; Neal v. Curtis & Co., 328 Mo. 389, 41 S.W. (2d) 543; Garvey v. Piel, 43 S.W. (2d) 774; Dodd v. Independence Stove Co., 51 S.W. (2d) 118. (b) The trial court's explanation of its reason for modifying Instruction D-3 was an explanation favorable to plaintiff. The law is well settled that, unless a party is aggrieved by an oral instruction, he cannot complain on the mere ground that it should have been in writing. Hogel v. Lindell, 10 Mo. 308; Walsh v. Drayage, 40 Mo. App. 341; Peck v. Traction Co., 131 Mo. App. 141; Belk v. Stewart, 160 Mo. App. 709. (2) Appellant's attack upon Instruction D-6 is without merit on either of the two charges of error directed against it. (a) The instruction does not attempt, as appellant charges, to authorize a finding that the acts of plaintiff referred to in the instruction constitute the proximate cause of the collision. On the contrary, it specifically directs the jury to determine, from all of the facts and circumstances, what is, in the judgment of the jury, the proximate cause. It leaves the jury free to decide whether or not primary negligence, contributory negligence, or humanitarian negligence caused the injury, and therefore is not open to appellant's criticism that it conflicts with the humanitarian instruction. (b) The instruction does not in any sense constitute a comment on the evidence. Wren v. Railroad, 44 S.W. (2d) 241; State ex rel. v. McKey, 30 S.W. (2d) 93; Jennings v. Cooper, 230 S.W. 328; Kirkpatrick v. Am. Creosoting Co., 37 S.W. (2d) 1005; Ward v. Railroad. 277 S.W. 911; Irons v. Express Co., 318 Mo. 330. (3) Appellant's contention that the decision on the third appeal nullified the decision on the second appeal and required reinstatement of the judgment rendered in the second trial is without merit. (a) The point was not preserved in the motion for a new trial and cannot now be considered. See authorities under Point 1-a, supra; Johnson v. Underwood, 324 Mo. 578, 24 S.W. (2d) 136; Syz v. Drivers Union, 18 S.W. (2d) 441. (b) The contention is based on a misconception of the opinion and holding of this court on the third appeal. The two decisions of this court are in entire harmony and plaintiff is not entitled to reinstatement of the judgment rendered in 1925. Hogan v. K.C. Pub. Serv. Co., 328 Mo. 1103, 19 S.W. (2d) 711; Denny v. Guyton, 57 S.W. (2d) 418.

ATWOOD. J.

This is an appeal from a judgment rendered November 8, 1929, upon a verdict returned for defendant in an action for damages on account of personal injuries alleged to have been sustained by police officer John A. Hogan in a collision between an automobile then being used as a police patrol and a street car owned by the Kansas City Railways Company and then being operated by its receivers. After this action was commenced the Kansas City Public Service Company, respondent herein, purchased the property of said railways company at judicial sale and assumed the liability sued on.

The points urged on this appeal are that the trial court erred (1) "in orally instructing the jury on a point of law arising in the case and in orally explaining the written Instruction P-3, as modified:" (2) in giving instruction marked D-6; and (3) in refusing to reinstate the judgment of the trial court of February 18, 1925, which judgment was reversed by this court on a former appeal.

With reference to the giving of Instruction P-3, we quote as follows from appellant's abstract of the record:

"P-3

"The court instructs the jury that the ordinance introduced in evidence applied to ordinary traffic by vehicles and street cars and did not regulate the movements of patrol wagons of the kind mentioned in evidence while answering emergency calls, if he was in Kansas City, Missouri, at the time of the collision, as to speed or the part of the street traveled on. (Given.)

"The words, `if he was,' interlined in the above instruction were inserted by the court at the time of the reading of said instruction to the jury, at which time the following occurred between the court and counsel in reference to this amendment of said instruction:

"During the course of the reading of the instruction to the jury, and while the court was reading instruction — plaintiff's given Instruction P-3 — the court paused when he came to the word `emergency' near the end of the fifth line and inserted the words, `if he was.'

"Then the following occurred:

"THE COURT: Gentlemen, I shall reread the instruction to you with the correction made. (The court then read Instruction P-3 as corrected.)

"THE COURT: Now the reason is this. You might have assumed I was telling you if they were not on an emergency call — which was far from my intention, so I just put in the words `if he was' — (reading from instruction) `and did not regulate the movements of patrol wagons of the kind mentioned in evidence while answering emergency calls — if he was' — it will be for you to decide whether he was.

"MR. O'DONNELL: I am excepting to the remarks of the court."

[1] In the points listed and urged in their main brief counsel for appellant suggest no attack upon the giving of this written instruction as modified by the court in writing, but in their reply brief they say that the instruction as thus modified "was erroneous, as well as before modification." Even if this be true it was invited error of which plaintiff will not be heard to complain. If, as appellant now says, inclusion of the words "while answering emergency calls" in the instruction as offered was erroneous because it was "more favorable to defendant than the law required," nevertheless, it was his own error and being offered in a form that suggested an assumption of a fact thus treated as in issue it invited the court to make the existence of this fact definitely a question for the jury.

[2] Coming now to the first point above stated as urged by appellant, counsel insist that the comments of the trial court were contrary to the provision of Section 967, Revised Statutes 1929, requiring that instructions given by the court "shall be in writing," and contrary to certain decisions of this court condemning oral explanations or comments of the trial court to the jury with reference to written instructions given. Counsel for respondent say that no such point was raised in plaintiff's motion for a new trial, while in appellant's behalf it is urged that the alleged error was sufficiently brought to the court's attention by the fourth assignment in the motion for a new trial, which is as follows: "Because the court erred in giving each and every instruction given to the jury by the court of its own motion." This assignment is in the stereotyped form used to designate error in the substance of an instruction. It contains no suggestion of any exception taken to the oral manner of instructing, which is the contention now before us and made for the first time on appeal. It is trite law that before this court can review an alleged error the attention of the trial court must be called thereto by a motion for a new trial. [Brainard v. Ry. Co., 319 Mo. 890, 898, 5 S.W. (2d) 15: State ex rel. Howard County v. Burckhartt et al., 83 Mo. 430, 433.] It is therefore unnecessary for us to determine whether the trial court's comments explaining why plaintiff's requested Instruction P-3 was modified and given in its modified form amounted to an...