Hunter v. Norton
| Decision Date | 13 March 1967 |
| Docket Number | AFL-CIO and L,No. 51995,No. 2,AFL-CI,S,A,51995,2 |
| Citation | 412 S.W.2d 163 |
| Parties | Joe HUNTER, Respondent, v. Daniel S. NORTON, Administrator of the Estate of Helen Louise Hahn, Deceased, and Jerry Perlstein et al., individually and as representatives of a class consisting of the full membership of the International Ladies' Garment Workers' Union,outhern Missouri-Arkansas District Council of International Ladies' Garment Workers' Union,ocal 307 of International Ladies' Garment Workers' Union,ppellants |
| Court | Missouri Supreme Court |
Dwight Crader, Sikeston, for appellants.
Blanton, Blanton & Rice, Sikeston, for respondent.
This appeal results from judgment entered upon a jury verdict in favor of plaintiff for $15,800.00 and the action of the trial court in overruling defendants' motion to set aside verdict and alternative motion for new trial. Defendant driver Helen Louis Hahn died before this action was filed.
Appellants contend (1) testimony of a former defendant was erroneously admitted in violation of the 'Dead Man's' Statute, Section 491.010, RSMo 1959, (2) as a matter of law they were free of negligence, and (3) verdict directing instruction given by the court at the request of plaintiff constituted prejudicial error.
Percy Reed, driver of the automobile in which plaintiff was riding as a passenger, was a defendant in this suit as originally filed. However, Reed was dismissed as a party defendant upon plaintiff's execution of a covenant not to sue, the consideration for which was a payment to plaintiff on behalf of Reed of the sum of $4,500.00. When this suit went to trial, Percy Reed was not a party to the action.
Section 491.010, supra, to the extent that it is urged by appellants to be a disqualifying statute with respect to witness Reed provides: '* * * in actions where one of the original parties to the * * * cause of action in issue and on trial is dead, * * * the other party to such * * * cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him, * * * and where an * * * administrator is a party, the other party shall not be admitted to testify in his own favor, * * *.'
Percy Reed was not a party to the cause of action 'in issue and on trial.' He testified neither in his own favor nor in favor of any party to the action claiming under him. The 'Dead Man's' Statute was never intended to apply in the circumstances of this case and thus disqualify a witness to the casualty who was neither a party to nor had any interest in the outcome of the litigation. Reed's relationship to the defendant administrator was not that of 'the other party' and additionally as noted above he was not 'admitted to testify in his own favor.' It is our view that Reed's testimony was properly received in evidence. Neither Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393 nor Wilcox v. Swenson, Mo., 324 S.W.2d 664, cited by appellants, in any way conflicts with the view we here express.
Appellants' contention that the evidence failed to make a submissible case against them requires its review, with due regard, of course, to the well-settled proposition that the evidence be viewed in the light most favorable to the prevailing party.
Highway 61 runs generally north and south. Within the city limits of Sikeston, Missouri, it forms an inverted 'Y' (Y) intersection with North Kingshighway at a point where Highway 61 curves from north to southeast. North Kingshighway enters Highway 61 at its west edge.
Plaintiff was a passenger in an automobile generally northbound on North Kingshighway, operated by Percy Reed. Mr. Reed stopped his vehicle at a stop sign located on North Kingshighway at its entrance to Highway 61.
Mr. Reed saw the defendant vehicle southbound on Highway 61 when it was about a quarter of a mile north of the stopped Reed automobile. Reed started his car forward and crossing the southbound lane of Highway 61, turned left and into its northbound lane. A collision between the defendant and Reed vehicles occurred 129 feet north of the south edge of North Kingshighway where it enters Highway 61. The Reed vehicle was entirely and the defendant vehicle was at least partially in the northbound lane of Highway 61 when the impact occurred. The collision took place entirely in the proper lane for the northbound Reed car and entirely in the wrong lane for the southbound defendant vehicle.
There was evidence of 50 feet of skid marks behind defendant's car starting in the southbound lane of Highway 61 and of skid marks of 35 feet behind Mr. Reed's car which also started in the southbound lane of the highway. No eyewitness to the collision except Mr. Reed testified.
Appellants contend that this case falls within the 'evidence of mere skidding does not make a submissible case' rule announced by Girratono v. Kansas City Public Service Co., 363 Mo. 359, 251 S.W.2d 59. We do not agree. The evidence was that the defendant vehicle, traveling at a high rate of speed, swerved or, in the terminology of the evidence, turned into the wrong lane of the highway and that the collision resulted. A submissible case for the consideration of the jury was clearly made.
We turn to the appellants' assignment of error with respect to Instruction No. 2 given by the court over...
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... ... Peters, Mo.App., 427 S.W.2d 753, 756. See Chappell v. City of Springfield, Mo., 423 S.W.2d 810, 812; Hunter3 S.W.2d 810, 812; Hunter v. Norton ... ...
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