Keyes v. Chicago, B. & Q. R. Co.

• Citation: 31 S.W.2d 50,326 Mo. 236
• Parties: O. P. Keyes v. Chicago, Burlington & Quincy Railroad Company, Appellant
• Decision Date: 04 September 1930
• Court: Missouri Supreme Court

31 S.W.2d 50

326 Mo. 236

O. P. Keyes v. Chicago, Burlington & Quincy Railroad Company, Appellant

Supreme Court of Missouri

September 4, 1930

Appeal from Circuit Court of City of St. Louis; Hon. George E Mix, Judge.

Affirmed.

H J. Nelson and Douglas W. Robert for appellant.

(1) The original verdict, having been read, received, the jury polled and the jurors affirming it and the verdict having been recorded, the judgment should have been entered for the defendant. The poll was conclusive. Cattell v. Publishing Co., 88 Mo. 356; Norvell v. Deval, 50 Mo. 272; Rankin v. Harper, 23 Mo. 579; Roman v King, 268 S.W. 414; Poulson v. Collier, 18 Mo.App. 583; 2 Thomp. Trials (2 Ed.) 1917; 27 R. C. L. 895, secs. 6, 10; Perry v. Mays, 2 Bailey (S. C.) 354; Atkins v. Blake, 2 J. J. Marshall (Ky.) 40; Scott v. Scott, 110 Pa. 387; Blum v. Pate, 20 Cal. 69; Bishop v. Migler, 33 Kan. 145; Lawrence v. Stearnes, 11 Pick. 500; Devereux v. Cotton Press, 14 S.C. 396. (2) The jury had been discharged and the verdict recorded, hence the court was without authority to recall the jurors and direct them to consider again the case and to bring in another verdict. State v. Hubbs, 294 Mo. 224; Norvell v. Deval, 50 Mo. 272; Newton v. Railroad, 168 Mo.App. 199; Singleton v. Exhibition Co., 172 Mo.App. 299; Poulson v. Collier, 18 Mo.App. 583; 27 R. C. L. 895, sec. 10; 2 Thomp. Trials 1918, sec. 2633. (3) Verdict No. 3 was fatal in that it did not dispose of all issues. There was no finding as to defendants Briscoe and Murphy. State v. Modlin, 197 Mo. 376; Ferguson v. Thatcher, 79 Mo. 511; Lummi Bay Co. v. Kryder, 263 S.W. 543; Singleton v. K. C. Exhibition Co., 172 Mo.App. 299; Hughey v. Eyssell, 167 Mo.App. 563; Dailey v. City of Columbia, 122 Mo.App. 21; Winkelman v. Maddox, 119 Mo.App. 658; Nichols v. Lead Co., 85 Mo.App. 584; Spaulding v. Bank, 78 Mo.App. 374; Miller v. Braden, 34 Mo.App. 662; Eichelmann v. Weiss, 7 Mo.App. 87; Schweickhardt v. St. Louis, 2 Mo.App. 571. (4) The judgment did not follow Verdict No. 3, the one upon which it purported to be based. The verdict made no finding as to defendants Briscoe and Murphy, yet the judgment dismisses the cause as to them. Proctor v. Garman, 203 Mo.App. 106; Newton v. Railroad, 168 Mo.App. 199; Crow v. Crow, 120 Mo.App. 124; Schweickhardt v. St. Louis, 2 Mo.App. 571; Sec. 1528, R. S. 1919. (5) As to Verdict No. 3, the record shows that the jury were then confused, bewildered and perplexed or had been influenced by the action of the court, or through conversations with non-members of the jury, and this verdict was not the product of deliberation and cannot stand. Newton v. Railroad Co., 168 Mo.App. 199; Champ Spring Co. v. Tool Co., 103 Mo.App. 103. (6) Instruction 1 was erroneous. It was an abstract proposition of law, not applied to the facts, as it did not require the jury to find any causal connection between the collision and plaintiff's injury, and placed the burden of proof upon the defendant without first requiring the jury to find that plaintiff was injured in the collision. Dinsmore v. Hartmann, 256 S.W. 1031; Van Bibber v. Swift, 286 Mo. 317; Kane v. Mo. Pac. Ry., 251 Mo. 13; Harper v. Terminal Co., 187 Mo. 575; Fisher v. Lead Co., 156 Mo. 579; Bluedorn v. Ry. Co., 121 Mo. 258; Kelly v. Railroad, 75 Mo. 138; Glenn v. Foundry Co., 294 S.W. 1021; Hendry v. Judge, 211 Mo.App. 166; Brimer v. Davis, 211 Mo.App. 47; Cherry v. Railroad, 163 Mo.App. 53; Campbell v. Transit Co., 121 Mo.App. 406. See also Dougherty v. Railroad, 97 Mo. 647; Olsen v. Ry. Co., 152 Mo. 426; Longan v. Ry. Co., 183 Mo. 582; Orcutt v. Bldg. Co., 214 Mo. 35; Gardner v. Ry. Co., 225 Mo. 389; Stofer v. Dunham, 208 S.W. 641; Van Tresse v. Pub. Service Co., 4 S.W.2d 1095. (a) It ignores the principal issue in the case. Preston v. Railroad, 292 Mo. 442; Zeis v. Brewing Assn., 205 Mo. 638; Cytron v. Transit Co., 205 Mo. 692; Greer v. Parker, 85 Mo. 107; Turner v. Loler, 34 Mo. 461; Duvall v. Cooperage Co., 275 S.W. 586; Farmers Bank v. Trust Co., 203 S.W. 674; Albright v. Oil Co., 206 Mo.App. 412; Kennedy v. Klein, 19 Mo.App. 15. (b) The cases of Price v. St. Ry., 220 Mo. 435, and Powell v. Railroad, 255 Mo. 420, from which Instruction 1 was copied, and the later cases of Trowbridge v. Fleming, 269 S.W. 610, and Fowlkes v. Fleming, 17 S.W.2d 511, are distinguishable in that in those cases the injury in the accident was conceded, not contested, while here the question of injury in the accident was contested. In the case of Bond v. Railroad, 315 Mo. 97, the instruction did require the jury to first find that fact. See also, Loftus v. Railroad, 220 Mo. 470; Cases cited in Price Case, 220 Mo. 435; Briscoe v. Met. St. Ry. Co., 222 Mo. 104. (7) It was error to permit Dr. Henry, over the defendant's objection, to testify to an injury to plaintiff's shoulders when no such injury was mentioned in the petition. Willoughby v. Brandes, 297 S.W. 54; Arn v. Arn, 264 Mo. 19; Brooks v. Blackwell, 76 Mo. 309. (8) Instruction 2 was based upon evidence not pleaded and which was objected to. It did not conform to the pleading and was therefore erroneous. Adams v. Kendrick, 11 S.W.2d 16; May v. Railroad, 284 Mo. 508; Degonia v. Railroad, 224 Mo. 564; Weaver v. Hendrick, 30 Mo. 502; Grimes v. Thorp, 113 Mo.App. 652; Kirby v. Wabash, 85 Mo.App. 345; Bank v. Westlake, 21 Mo.App. 565. (a) Even if it should be considered, the third verdict was excessive. The plaintiff sustained, if any, but slight injuries. Of course as to excessive verdict "each case must be ruled on its own peculiar facts." Sallee v. St. L.-S. F. Ry. Co., 12 S.W.2d 481; Kleinlein v. Foskin, 13 S.W.2d 659.

Charles P. Noell and Hensley, Allen & Marsalek for respondent.

(1) The trial court did not err in refusing to receive, as the verdict in the case, either of the two signed papers that were returned in the sealed envelope, which were inconsistent with each other, or in directing the jury to again retire and return a verdict, or in receiving the final verdict, which was the only verdict formally received and recorded by the court, and hence the only true verdict. Hary v Speer, 120 Mo.App. 556; Kreibohm v. Yancey, 154 Mo. 67; Cattell v. Dispatch Pub. Co., 88 Mo. 356; Glaves v. Old Gem Catering Co., 18 S.W.2d 567; Turley v. Ammonia Co., 299 S.W. 53; Lummi Bay Packing Co. v. Kryder, 263 S.W. 543; State v. Steptoe, 1 Mo.App. 19; Lenartz v. Funk, 224 Ill.App. 180; Dalgren v. Israel, 204 Ill.App. 340; Nolan v. East, 132 Ill.App. 634; Roberts v. Roberts, 91 Iowa 228; Tenenbaum v. Cohen, 165 N.Y.S. 825, 100 Misc. 360; Robyn v. VanDerWeide, 178 Iowa 608, 150 N.W. 1034; Rosenthal v. Standard Oil Co., 192 N.Y.S. 833, 188 Misc. 249; Gosslee v. Seattle, 132 Wash. 1, 231 P. 4; Junion v. Snarely Motor Co., 186 Wis. 298; Zebnick v. Rozmus, 81 N.H. 45, 124 A. 460; Ball v. Pardy Const. Co., 108 Conn. 549, 143 A. 555; Harper v. Corliss, 146 Wash. 50, 261 P. 645; Singer v. Natl. Bond. & Inv. Co., 118 So. 561. (2) A jury may revise its verdict at any time before it has been finally accepted by the court and recorded as a verdict; and the fact that the jury had been allowed to temporarily leave the jury box and take their seats in the courtroom does not alter the rule. Hary v. Speer, supra, 120 Mo.App. 563; Kreibohm v. Yancey, 154 Mo. 67; Lummi Bay Packing Co. v. Kryder, 263 S.W. 545; Newton v. Railroad, 168 Mo.App. 199; Lenartz v. Funk, 224 Ill.App. 180; Robyn v. VanDerWeide, 178 Iowa 608, 159 N.W. 1034; Rosenthal v. Standard Oil Co., 192 N.Y.S. 833; Dalgren v. Israel, 204 Ill.App. 340. (3) Appellant cannot now complain that the final and only real verdict in the case did not dispose of all of the issues because it made no finding as to defendants Briscoe and Murphy. The matter was waived by not being made a ground of appellant's motion for a new trial. Wright v. Lewis, 19 S.W.2d 287. (4) Since plaintiff had taken a nonsuit as to defendants Briscoe and Murphy, there was no occasion for the jury to make any finding as to these defendants. And the judgment did dispose of all of the parties and all of the issues in the case. (5) There was no error in giving plaintiff's Instruction 1. Instructions in identically this form have been approved in cases of this character, involving the res ipsa loquitur rule, in a long line of cases in this State. Price v. Met. St. Ry. Co., 220 Mo. 435; Loftus v. Met. St. Ry. Co., 220 Mo. 471; Howell v. Railroad, 255 Mo. 420; Stauffer v. Railroad, 243 Mo. 305; Trowbridge v. Fleming, 269 S.W. 610; Fowlkes v. Fleming, 17 S.W.2d 511; Nagel v. Railroad, 169 Mo.App. 284. (6) The point raised by appellant that Instruction 1 did not specifically require the jury to find that plaintiff was injured, is without merit, since it was undisputed that plaintiff received some injuries in the collision, this being shown by the evidence for both plaintiff and defendant. It is not error to assume in an instruction a matter not in dispute. Midway Bank & Trust Co. v. Davis, 288 Mo. 563; Davidson v. Transit Co., 211 Mo. 320; Torreyson v. United Rys. Co., 246 Mo. 696; Rogles v. United Rys. Co., 232 S.W. 97; Palmer v. Transfer Co., 209 S.W. 882; State ex rel. Newspapers Assn. v. Ellison, 200 S.W. 433; Carlin v. Terminal Railway, 232 S.W. 215. (7) There was no error in giving Instruction 2, on the measure of damages. (a) The giving of an instruction on the measure of damages in this form cannot be harmful or prejudicial, where, as here, there are no special facts or circumstances in evidence which can be said to excite the sympathy, or engender the bias and prejudice, of the jury. Sallee v. Railway Co., 12 S.W.2d 479; Salmons v. Railroad Co., 271 Mo. 395; Hurst v. Railroad Co., 280 Mo. 566; Zini v. Terminal Railroad Assn., 250 S.W. 49; Sacre v. Railway Co., 260 S.W. 87; Johannes v. Laundry Co., 274 S.W. 379. (b) Furthermore,...