Kiburz v. Loc-Wood Boat & Motors, Inc.
| Decision Date | 14 May 1962 |
| Docket Number | No. 48871,No. 1,LOC-WOOD,48871,1 |
| Citation | 356 S.W.2d 882 |
| Court | Missouri Supreme Court |
| Parties | Fred H. KIBURZ, Administrator of the Estate of Roger Kiburz, Deceased, Respondent, v.BOAT & MOTORS, Inc., a Corporation, et al., Appellants |
Elwyn L. Cady, Jr., Kansas City, for appellants.
Homer A. Cope, Donald W. Browne, and Walter A. Raymond, Kansas City, Raymond, West & Cochrane, Kansas City, of counsel, for respondent.
Action for $25,000 damages for the wrongful death of plaintiff's decedent, Roger Kiburz. Verdict and judgment were for defendants but, on motion, the court set the verdict and judgment aside and granted plaintiff a new trial on the ground (1) that the verdict of the jury was against the weight of the evidence and (2) that the court erred in giving defendants' Instructions No. 10 and 11. Defendants have appealed 'from the order granting a new trial to plaintiff.'
The petition charged that on June 7, 1958, at about 10:45 a. m. decedent's death was caused by being struck by the Tuscumbia, a pleasure boat for sightseers operated by defendants on the Lake of the Ozarks. The particular negligence charged and submitted was a failure to maintain and keep a proper lookout ahead and laterally for individuals, including Roger Kiburz, vessels or obstructions upon the waters of the lake; failure to turn, swerve or alter the course of the Tuscumbia to avoid striking the said Roger Kiburz; the operation of the Tuscumbia at a high, dangerous and reckless rate of speed under the conditions and circumstances there and then existing, and the failure to slacken or slow the speed or forward motion of the Tuscumbia after its operator knew or, by the exercise of ordinary care, could have known of the danger of collision with Roger Kiburz and of his imminent peril. Plaintiff's principal instruction further submitted a finding that as a direct and proximate cause of the negligence submitted, the Tuscumbia struck the said Roger Kiburz, causing severe injuries of which he immediately thereafter died and disappeared beneath the water; and that he was single and unmarried, 22 years of age and left no wife or minor children, natural-born or adopted, but did leave certain brothers and sisters and other heirs to whom he contributed support.
Appellants' brief in this court has not assigned error on the trial court's action in granting plaintiff a new trial, nor does appellants' brief indicate that appellants' counsel has either read or seriously attempted to comply with Supreme Court Rule No. 83.05, V.A.M.R. in the preparation of appellants' brief. The brief is deficient in a number of respects and the appeal could properly be dismissed for failure to comply with the mentioned rule; nevertheless, since we have reached the conclusion that the order must be affirmed, we shall overrule respondent's motion to dismiss and rule the single issue which we believe the appellants intended to present on this appeal.
Under 'points relied on' appellants only say: 'The court erred in overruling defendants' motions for directed verdicts inasmuch as plaintiff had not established a prima facie case entitling him to submit his case to a jury.' However, since verdict and judgment were for the defendants, if is evident that defendants were not prejudiced by the mentioned order. If defendants were prejudiced in any respect it was by the court's order setting the verdict and judgment aside and granting the plaintiff a new trial. We shall construe appellants' assignment to mean that the trial court erred in granting plaintiff a new trial, because the evidence was insufficient to make, out a submissible case for the jury.
If no submissible case was made for the jury, that is, if defendants' motions for a directed verdict should have been sustained as a matter of law at the close of all the evidence, then it would be an arbitrary act and an abuse of the trial court's discretion to grant a new trial to plaintiff after a verdict for defendants. Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824, 827-828. In Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297, 300, this court said: 'To grant a new trial, on the ground that the finding was against the weight of the evidence, would be arbitrary if there was no evidence to weigh.' And see Brooks v. Stewart, Mo.Sup., 335 S.W.2d 104, 105(1, 2), 81 A.L.R.2d 508 and cases cited.
At the close of plaintiff's evidence and at the close of all the evidence no written motions for a directed verdict were filed and the oral motions presented by the respective defendants, except Loc-Wood Boat & Motors, Inc., assigned no grounds in support of the motions, although various specific affirmative defenses had been pleaded. See Supreme Court Rules 55.30 and 72.01. Defendant Loc-Wood Boat & Motors, Inc. at the close of plaintiff's evidence and at the close of all the evidence asked for a directed verdict on the ground 'that the record fails to show a cause of action against the defendant Loc-Wood Boat & Motors,' hence this defendant, as appellant, is in a position to raise the question of error in granting the plaintiff a new trial and may insist that the order was erroneous because plaintiff failed to make a case for the jury on the negligence pleaded and submitted against it.
Appellants' brief does not refer to the individual defendants-appellants nor attempt to deal separately with them. Nor does appellants' brief refer to the specific assignments of negligence submitted to the jury. The nearest approach is appellants' contention that 'there is absolutely no credible evidence at all' as to the 'cause of death' or the 'relationship of proximate cause between any negligence and legal injury.' (Italics ours.) Appellants' position is based upon the theory that certain testimony, which appellants consider essential to a submissible case, is 'at war with plain physical facts and laws' and, therefore, is inherently worthless and insufficient to support the submission of the cause.
Roger Kiburz' body was never found and there was no death certificate and no coroner's inquest; however, an extended investigation was conducted by the State Highway Patrol and the U. S. Coast Guard and appellants concede there was evidence 'of the fact of death' and of 'damage (legal injury).'
In determining the issues presented, we must consider the evidence in a light most favorable to plaintiff and give him the benefit of all favorable inferences reasonably to be drawn from all the evidence and disregard defendants' evidence unless it aids the plaintiff's case. Highfill v. Brown, Mo.Sup., 340 S.W.2d 656, 658; Winger v. General American Life Insurance Co., Mo.Sup., 345 S.W.2d 170, 173.
Under the issue submitted on appeal by appellants we may limit our inquiry to any negligence of the defendant submitted by plaintiff as having caused Roger Kiburz' death. Accordingly, we shall direct our attention to the submitted assignment that 'defendant Cloyd Chester Perrin was the pilot in charge of and operating the said Tuscumbia; and that he was operating said Tuscumbia in line of his duty and scope of his employment as the duly authorized agent, servant and employee of defendant Loc-Wood Boat & Motors Co., Inc. * * *; that said Perrin caused or permitted the Tuscumbia to run into and against said Roger Kiburz, as a direct and proximate result of which the said Roger Kiburz received such injuries that he was caused to immediately disappear under the water and to die * * *; and that defendant Perrin, while acting on behalf of himself and as the duly authorized agent, servant and employee of the other defendants named herein, failed to maintain and keep a proper lookout ahead and laterally for individuals, including Roger Kiburz, vessels or obstructions upon the water, and that he was thereby negligent in failing so to do * * *; and that as a direct and proximate result of the negligence of said defendants and each of them as aforesaid' Roger Kiburz was injured and died.
The record shows that the occurrence in question happened on the Lake of the Ozarks on the morning of June 7, 1958, about four and one-half miles west of Bagnell Dam, and some 300 feet from the north shoreline of the lake. The record further shows the area about the lake to be a resort area where boating, skiing and other water sports are engaged in, particularly during the summer season; that ski shows and pageants were carried on in the lake area; that one of defendants' witnesses was President of the Ozark Water Ski Club; that he had been professionally engaged in water ski activities, mostly at the Lake of the Ozarks; and that in connection with his professional employment he taught water skiing and small boat safety on a professional basis on the lake. Much evidence offered by defendants tending to show the extent of boating and ski activity was excluded by the court on objection of plaintiff's counsel.
The evidence further shows that the Tuscumbia was a 12-ton, 30-passenger, 40-foot excursion boat powered by two 200-horsepower motors, with machinery and equipment in good order; that it had a normal cruising speed of 22 m. p. h.; that it was painted white above the waterline and was regularly used as a pleasure craft for sightseers, with a regular run consisting of a 35-mile round trip on the lake, going up along the north shore and returning along the south shore.
At about 10:45 a. m. on June 7, 1958, the weather was clear, visibility was good, the lake was calm and there was no obstruction to view ahead, as the Tuscumbia moved westward on its regular course, outbound from Bagnell Dam. At that time, Roger Kiburz, age 22, a good swimmer, agile, muscular and in good health, was boating and skiing on the Lake of the Ozarks with Charles Betz of about the same age. They had been taking alternate turns in operating the boat and skiing . Their boat, the Mardi Gras, a 15-foot, outboard, plywood motorboat stained a dark mahogany, was powered by a...
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