Jordan v. St. Joseph Ry., Light, Heat & Power Co.

• Citation: 73 S.W.2d 205,335 Mo. 319
• Decision Date: 12 June 1934
• Docket Number: 31839
• Parties: Julia Jordan, Administratrix of the Estate of Jasper N. Jordan, Appellant, v. St. Joseph Railway, Light, Heat & Power Company
• Court: United States State Supreme Court of Missouri

73 S.W.2d 205

335 Mo. 319

Julia Jordan, Administratrix of the Estate of Jasper N. Jordan, Appellant, v. St. Joseph Railway, Light, Heat & Power Company

No. 31839

Supreme Court of Missouri

June 12, 1934

Appeal from Buchanan Circuit Court; Hon. J. V. Gaddy Judge.

Reversed and remanded (with directions).

W J. Boyd, M. J. Duvall and Miles Elliott for appellant.

(1) Under the evidence, it was for the jury to say whether by the timely sounding of the gong the motorman could have warned the occupants of the automobile of the dangerous proximity of the street car and have thereby averted the collision, and whether in the exercise of ordinary care he should have sounded the gong for the purpose of giving such warning. It was likewise for the jury to say whether the motorman did or did not sound the gong. Therefore, the instruction was properly given. Herrell v. St. Louis-San Francisco, 18 S.W.2d 481; Rodgers v. Railroad Co., 31 S.W.2d 550; Thompson v. Railroad Co., 18 S.W.2d 406; Maher v. St. L. Pub. Serv. Co., 53 S.W.2d 1099; Ford v. Pieper, 24 S.W.2d 1054; Grubbs v. K. C Pub. Serv. Co., 45 S.W.2d 71; Phillips v. Henson, 30 S.W.2d 1065; Steigleder v. Lonsdale, 253 S.W. 487; McNulty v. St. L. Pub. Serv. Co., 60 S.W.2d 701; Graupner v. Wells, 260 S.W. 521; American, etc., Co. v. United Rys. Co., 206 S.W. 257; State ex rel. Estes v. Trimble, 43 S.W.2d 1040; Todd v. St. Louis-San Francisco, 37 S.W.2d 561; Smith v. St. Louis-San Francisco, 9 S.W.2d 945; Allen v. Railroad Co., 281 S.W. 736; Zumwalt v. Chicago & Alton, 266 S.W. 717; McGowan v. Wells, 24 S.W.2d 633; Hinzeman v. Railroad Co., 199 Mo. 56; Logan v. Railroad Co., 254 S.W. 705. (2) The instruction stated the law correctly and was correct in form. Grubbs v. K. C. Pub. Serv. Co., supra; Hill v. K. C. Rys. Co., 233 S.W. 205, 208; Gould v. Railroad Co., 290 S.W. 138; Allen v. Railroad Co., 281 S.W. 743; Powell v. K. C. Rys. Co., 226 S.W. 922; Eppstein v. Missouri Pacific, 197 Mo. 736; Woodis v. United Rys., 203 S.W. 489, 199 Mo.App. 348.

Mayer, Conkling & Sprague for respondent.

(1) The petition does not state a cause of action, and for that reason the action of the court in granting defendant a new trial was clearly right. (a) The petition is fatally defective, in that it shows that it is a suit brought by an administratrix to recover damages for personal injuries to her intestate caused by defendant's alleged negligence, but fails to allege that the death of her intestate did not result from the injuries caused by the pleaded negligence. Sec. 3280, R. S. 1929; Showen v. Street Ry., 164 Mo.App. 41; Greer v. Railroad, 173 Mo.App. 276; Longan v. K. C. Rys. Co., 299 Mo. 572. (b) By answering instead of demurring, defendant did not waive the point that the petition wholly failed to state a cause of action. Such a defect is jurisdictional in nature and self-asserting. La Rue v. La Rue, 317 Mo. 214, and fatality of such defect can be raised in any court or at any stage of the case -- the time or method of raising the point being wholly immaterial. Rositzky v. Rositzky, 329 Mo. 672; Chandler v. Railroad Co., 251 Mo. 599; Greer v. Railroad Co., 173 Mo.App. 290. (2) The court erred in giving plaintiff's Instruction 1 and properly granted a new trial because of the giving of said erroneous instruction. (a) The instruction assumed to cover the whole case and to direct a verdict, but failed to require the jury to find that the injuries sued for did not result in the death of plaintiff's intestate. Showen v. Street Ry., 164 Mo.App. 49; Greer v. Railroad Co., 173 Mo.App. 291. (b) The instruction assumed to state all of the elements necessary to making a humanitarian negligence case of failure to warn, but failed to require a finding that plaintiff's intestate was oblivious to his peril. Pentecost v. St. Louis Merchants Bridge Term. Railroad Co., 334 Mo. 572. (c) The instruction was confusing, misleading and prejudicial, because it commingled issues of primary negligence and negligence under the humanitarian rule. Freeman v. Berberich, 60 S.W.2d 393; Sevedge v. Railroad Co., 53 S.W.2d 284. Because it authorized a verdict for plaintiff on the required findings, one of which constituted primary negligence, even though plaintiff's intestate was guilty of contributory negligence. Sevedge v. Railroad, 53 S.W.2d 284. Because it permitted the plaintiff to recover on humanitarian negligence of failure to warn, without confining the operative effect of the humanitarian doctrine to the time after the plaintiff's intestate was in a discoverable position of peril. State ex rel. Fleming v. Bland, 322 Mo. 572; Millhouser v. Kansas City Pub. Serv. Co., 55 S.W.2d 675; Wolfson v. Cohen, 55 S.W.2d 679. Because it injected a totally foreign issue in the case. Gray v. Columbia Terminals Co., 52 S.W.2d 813; Silliman v. Munger Laundry Co., 329 Mo. 244. (3) The court erred in giving plaintiff's Instruction 2, and the granting of a new trial to defendant would have been justified and is sustainable because of the giving of said erroneous instruction. The instruction broadened the issues raised by the pleadings. It submitted to the jury, as a basis of recovery by plaintiff, the failure of the motorman to slacken the speed of the street car after plaintiff's intestate was in a discoverable position of peril. The petition contained no averment respecting any negligence under the humanitarian rule in failing to slacken the speed of the street car. Kitchen v. Schlueter Mfg. Co., 323 Mo. 1196; Talbert v. Railroad Co., 314 Mo. 370; Kuhlman v. Water, Light & Traction Co., 307 Mo. 635; State ex rel. v. Ellison, 270 Mo. 655; Degonia v. Railroad Co., 224 Mo. 589. (4) The order granting a new trial would have been justified and is sustainable because the verdict was unintelligible. The nine-men verdict for "ten ($ 10000) dollars" was unintelligible and insufficient to support a judgment for any amount. Newton v. Railroad Co., 168 Mo.App. 199. (a) An ambiguous verdict cannot be helped out by judicial construction. Newton v. Railroad Co., 168 Mo.App. 206; Singleton v. Exhibition Co., 172 Mo.App. 306. (b) The affidavits of some of the jurors filed in support of the unintelligible verdict can be given no weight or consideration by this court, because the affidavits were never received in evidence at the hearing of the motion for new trial, or otherwise brought to the attention of the court. Hence, not being before the court, they had no probative force. Winn v. Reed, 61 Mo.App. 626; 46 C. J. 347, sec. 358. The affidavits were not made a part of the bill of exceptions. Merely copying them in the bill of exceptions did not make them a part of the record. Feary v. Street Ry., 162 Mo. 106. (5) The order granting a new trial would have been justified and is sustainable because of the error of the trial court in refusing to discharge the jury after the plaintiff herself had testified that the injuries of her intestate resulted in his death. Such testimony was calculated to and did excite in the minds of the jury a sympathy for plaintiff on account of the death of her husband, and a prejudice against the defendant. The large verdict (if there was a verdict which would support a judgment, and we deny there was) was attributable to the prejudicial evidence that the death resulted from the injuries, which went to the jury, and the error in refusing to discharge the jury after the admission of such evidence can only be corrected by a new trial. Olian v. Olian, 59 S.W.2d 673; Beer v. Martel, 55 S.W.2d 482; Showen v. Street Ry., 191 Mo.App. 295.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

This is the second appeal in this case, a personal injury action based on negligence of the defendant, the injury being occasioned by defendant's street car colliding with an automobile driven by Jasper N. Jordan at the intersection of two streets in St. Joseph. On the first appeal the case was entitled Jasper N. Jordan, plaintiff, against this defendant, and discloses that shortly after his injuries Jasper N. Jordan instituted the action to recover damages for his own injuries, that the case was tried resulting in a verdict and judgment for defendant, and that defendant then appealed from an order granting the plaintiff a new trial. That case is reported in 38 S.W.2d 1042, and resulted in this court sustaining the trial court in granting plaintiff a new trial. The plaintiff, Jasper N. Jordan, died pending that appeal and, as stated in that opinion, "After the appeal was lodged in this court the plaintiff died from causes not connected with the accident. His death was suggested and the case was revived (in this court) in the name of his administratrix." The case was remanded for new trial.

The present record discloses that the case again came on for trial in the circuit court, the petition being amended by interlineation by leave of court, under the title of Julia Jordan, administratrix of the estate of Jasper N. Jordan deceased, against this defendant. The second trial resulted in a judgment for plaintiff in the sum of $ 10,000 and the trial court granted defendant a new trial on the ground of error in giving for plaintiff an instruction presently to be noted. The plaintiff is now appealing from that order. Although the administratrix became the substituted plaintiff in the proceedings on the second trial, we will, for convenience, use the word plaintiff as meaning the original plaintiff, Jasper N. Jordan. It will be well to keep in mind the chronology of these events, to-wit: Jasper N. Jordan was injured August 3, 1924. He filed his suit for damages September 6, 1924. The first trial in the circuit court was had at the January Term, 1928, where the verdict was for defendant, a new trial was granted plaintiff, and defendant appealed. After the...