Jones v. Central States Oil Co.

• Citation: 164 S.W.2d 914,350 Mo. 91
• Decision Date: 28 July 1942
• Docket Number: 37590
• Parties: Burley Jones v. Central States Oil Company, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

164 S.W.2d 914

350 Mo. 91

Burley Jones v. Central States Oil Company, a Corporation, Appellant

No. 37590

Supreme Court of Missouri

July 28, 1942

Rehearing Denied September 8, 1942. Motion to Transfer to Banc Overruled October 6, 1942.

Appeal from Shelby Circuit Court; Hon. Harry J. Libby Judge.

Affirmed.

Morris E. Osburn and Price, Major & Alexander for appellant.

(1) The court erred in giving plaintiff's Instruction P. No. 1 for the following reasons: (a) Because said instruction submitted generally the question of defendant's negligence and did not submit specifically the particular act, acts, omission or omissions constituting defendant's negligence relied upon by plaintiff and shown by the evidence, and gave the jury a roving commission to find for plaintiff on any theory of negligence on defendant's part. Schroeder v. Rawlings, 127 S.W.2d 678; Annin v. Jackson, 100 S.W.2d 872; Anderson v Northrop, 96 S.W.2d 521; Watts v. Moussetts, 85 S.W.2d 487; Allen v. Mo. Pac. Ry. Co., 294 S.W. 80; Owens v. McCleary, 281 S.W. 682; White v. Handy, 245 S.W. 613; Hales v. Raines, 162 Mo.App. 46, 141 S.W. 917; Mulderig v. St. Louis, K. C. & C. R. Co., 116 Mo.App. 655, 94 S.W. 801; Sommers v. St. Louis Transit Co., 108 Mo.App. 319, 83 S.W. 268; Allen v. St. Louis Transit Co., 183 Mo. 411, 81 S.W. 1142; Van Bibber v. Willman Fruit Co., 234 S.W. 356; Crupe v. Spicuzza, 86 S.W.2d 347; Egan v. Palmer, 293 S.W. 460; State ex rel. Burger v. Trimble, 55 S.W.2d 422; Harke v. Haase, 75 S.W.2d 1001. (1) The facts of this case as shown by the evidence do not permit or justify submitting generally the question of defendant's negligence under the res ipsa loquitur rule. Miller v. Wilson, 288 S.W. 997; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872; State ex rel. Brancato v. Trimble, 18 S.W.2d 4; Powell v. St. Joseph Ry. L., H. & P. Co., 81 S.W.2d 958; Polokoff v. Sanell, 52 S.W.2d 443. (2) Under the evidence the plaintiff could have submitted the following specific acts of negligence on the part of the defendant: (a) Excessive speed. (b) Failure to keep a lookout. (c) Under the evidence plaintiff could have submitted as a specific act of negligence on the part of defendant that the defendant, having overtaken plaintiff's automobile moving in the same direction and desiring to pass same, failed to pass on the left of plaintiff's automobile in violation of Subsection (e) of Section 8385, Revised Statutes of Missouri, 1939. (d) Under the evidence the plaintiff could have submitted as a specific act of negligence on the part of the defendant that the defendant, having overtaken plaintiff's automobile going in the same direction and desiring to pass same, failed to sound his signaling device, in violation of Subsection (e) of Section 8385, Revised Statutes of Missouri, 1939. (e) Under the evidence the plaintiff could have submitted as a specific act of negligence on the part of the defendant that the defendant failed to slacken the speed of said motor truck, swerve the same or divert the course thereof. (b) Because said instruction submitted the following: "and further find and believe from the evidence that on said day and at said time and place on said highway hereinbefore mentioned, the defendant carelessly and negligently caused, allowed and permitted said transport truck, if you so find, to run into, strike and into collision with the rear end of the said pickup truck plaintiff was driving," there being no evidence that defendant's truck ran into, struck and collided with the rear end of said pickup truck plaintiff was driving, and such submission in said instruction was not supported by any evidence, was misleading, tended to prejudice defendant's case and was a harmful comment on the evidence. Boyle v. Bunting Hardware Co., 238 S.W. 155; Woods v. Kansas City L. & P. Co., 212 S.W. 899; Vaughn v. Meier, 246 S.W. 279; Priebe v. Crandall, 187 S.W. 605. (2) The court erred in giving Instruction P. No. 2 on behalf of the plaintiff because said instruction advises the jury: "You are further instructed that if you find for plaintiff that the total amount which you may award him shall not exceed the sum of $ 25,000, which is the amount sued for in plaintiff's petition." Brashear v. Mo. P. & L. Co., 49 S.W.2d 639; Bond v. St. Louis-S. F. Ry. Co., 288 S.W. 777. (3) The court erred in refusing to set aside the verdict and grant a new trial because the verdict is so excessive as to show bias and prejudice on the part of the jury against the defendant. King v. Mann, 286 S.W. 100; Olian v. Olian, 59 S.W.2d 673.

Lane B. Henderson, Waldo Edwards and D. L. Dempsey for respondent.

(1) Plaintiff's Instruction P. No. 1 did not submit generally the question of defendant's negligence but did submit the particular act charged as negligence in plaintiff's petition and supported by plaintiff's evidence. The evidence of plaintiff did not disclose the precise cause of the collision between defendant's truck and the rear end of the motor car plaintiff was driving. The petition and plaintiff's evidence confined the issue to a definite field and the instruction, under the facts, in this case, is proper. O'Connor v. Koch, 56 Mo. 253; Thompson v. Livery Co., 214 Mo. 487; Rogles v. United Rys. Co., 232 S.W. 93; Noren v. American School of Osteopathy, 223 Mo.App. 278, 2 S.W.2d 215. Under the pleadings and the evidence of plaintiff, the jury was justified in finding that the defendant violated the high degree of care which the law imposed on it when it collided with the rear end of plaintiff's pickup truck while plaintiff was on his own side of the highway and the defendant's truck was proceeding in the same direction on said highway behind plaintiff. (a) The court did not submit the case to the jury upon a "presumption of negligence" instruction. Nevertheless, plaintiff's proof in this case clearly established the allegation of negligence made in his petition but did not show what specifically did cause the collision. The character of the occurrence pleaded and in evidence is so unusual and outside common and usual happenings that plaintiff is entitled to the application of the res ipsa loquitur doctrine. Price v. Met. Street Ry. Co., 220 Mo. 435; Watts v. Moussette, 337 Mo. 533, 85 S.W.2d 487. (b) While plaintiff's evidence abounds in proof of negligent acts of the defendant, both of commission and omission, in driving its truck, it does not disclose precisely the cause of the collision. The instruction is not objectionable, therefore, in following the language of the negligence charged in the petition. It is so restricted. Under plaintiff's evidence he could not specify more particularly which act or acts of negligence of the defendant caused the collision and injury to plaintiff. If the defendant desired a more specific or detailed finding as to such specific acts it should have asked for an instruction calling therefor. Rogles v. United Rys. Co., 232 S.W. 93; Jenkins v. Wabash Ry. Co., 335 Mo. 748; Zichler v. St. Louis Pub. Serv. Co., 332 Mo. 902; Rogers v. Mobile & Ohio Ry. Co., 337, Mo. 140; McGinnis v. St. Louis Pub. Serv. Co., 44 S.W.2d 886; Schweig v. Wells, 26 S.W.2d 851. (c) Defendant criticizes plaintiff's Instruction P. No. 1 on the ground that it submitted to the jury the question of the collision between defendant's truck and the rear end of plaintiff's pickup truck. The ground of the objection being that there is no evidence in the record to support it. The authorities cited by defendant in support of his criticism to this instruction have no application to the facts in this case. Coble v. St. Louis-S. F. R. Co., 38 S.W.2d 1031; David v. Mo. Pacific R. Co., 328 Mo. 437; Frese v. Wells, 40 S.W.2d 652. (2) The court committed no error in giving plaintiff's Instruction P. No. 2. The verdict in this case was for ten thousand dollars ($ 10,000); the amount sued for was twenty-five thousand dollars ($ 25,000). It is impossible to torture this instruction as conveying any intimation to the jury that the court in giving it had in anywise intimated or suggested what the verdict should be. That the instruction is not error has been repeatedly held. Corbin v. K. C., C. C. & St. Joseph, 41 S.W.2d 832; Grubbs v. K. C. Pub. Serv. Co., 329 Mo. 390, 45 S.W.2d 71. (3) Defendant should not be permitted to change his theory upon appeal. Folks v. Fleming, 322 Mo. 718, 17 S.W.2d 511; Deschner v. Railway, 200 Mo. 310; Walker v. Railroad, 193 Mo. 453.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action for damages for personal injuries. Plaintiff had a verdict for $ 10,000.00, and from the judgment entered thereon, defendant has appealed.

Defendant's assignments go only to instructions and amount of the verdict. Plaintiff, his wife, and another, about 7 A. M., on May 2, 1940, were in a Ford pickup truck, riding in the same seat, with plaintiff driving, going south on U.S. Highway #63. About six miles north of Macon (just north of Axtel) according to plaintiff's evidence, his car was struck from the rear by defendant's large gasoline transport truck, without warning.

Plaintiff's petition alleged that, at said time and place, while plaintiff was driving on the right (west) side of the highway, defendant, by its agent R. J. Bailey, "carelessly and negligently drove and operated said truck (defendant's transport truck) and carelessly and negligently caused, allowed and permitted the same to run into, strike and into collision with the rear end of the motor vehicle of plaintiff with such great force and violence," etc., causing plaintiff to be injured.

The answer was a general denial and a plea of contributory negligence, alleging, among other things (1) that plaintiff negligently operated his truck on the wrong (east) side of the pavement; (2) t...