Koeper v. FARMERS INSURANCE COMPANY, INC.
| Decision Date | 29 December 1972 |
| Docket Number | No. S71C87.,S71C87. |
| Citation | 354 F. Supp. 93 |
| Parties | John J. KOEPER and Beulah Marie Koeper, Plaintiffs, v. FARMERS INSURANCE COMPANY, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
Raymond H. Vogel, Vogel & Frye, Cape Girardeau, Mo., for plaintiffs.
R. A. Wegmann, Dearing, Richeson, Roberts & Wegmann, Hillsboro, Mo., for defendant.
In this action, tried to the court, plaintiffs seek to recover damages for the wrongful death of their daughter under the uninsured motorist provisions of two policies issued by defendant Farmers Insurance Company. Jurisdiction is founded upon diversity of citizenship, and the amount in controversy exceeds $10,000. 28 U.S.C. § 1332.
This case presents for determination in an emerging area of the law a number of legal issues which have not been expressly resolved by the courts of Missouri (in which the accident occurred), and as to which the courts of other jurisdictions are sharply divided.
The collision occurred at approximately 11:00 P.M. on July 9, 1970 approximately ½ mile south of the intersection of U.S. Highway 61 and Route V in Perry County, Missouri, when a 1967 Plymouth automobile being operated by Richard J. Erlacker was struck from the rear by a 1962 Chevrolet driven by Ronald J. Berkbuegler, an uninsured motorist.
Shortly before the accident, Erlacker was returning south on Highway 61 from a swimming party at Rock Valley outside Brewer. As he approached the scene of the accident, he turned left (east) off Highway 61 into the Hagen driveway to deliver Brenda Hagen, one of his passengers, to her home. He turned the car around and, after Brenda had left the automobile, drove up the driveway to the highway. Margie Koeper was in the front passenger seat, and another friend, Joe Hoffman, was in the rear seat. Erlacker looked in both directions and saw no cars. Joe Hoffman confirmed that all was clear on the right. Erlacker entered the highway and made a left turn into the southbound lane, accelerating to approximately 30 to 35 miles per hour. At a distance approximately 51 feet south of the Hagen driveway, Erlacker's automobile was struck from the rear by the car driven by Berkbuegler. Erlacker's car veered left across the northbound portion of the highway and came to rest against a tree, facing west approximately 25 feet from the east edge of the highway. The car driven by Berkbuegler veered to the right (west) and came to rest upside-down in a ditch approximately 207 feet from the point of impact. Margie Koeper was taken in an unconscious condition to Perry County Hospital and from there removed to St. Luke's Hospital, where she remained in a coma until her death on August 2, 1970.
U.S. Highway 61 is 20 feet wide at the point of impact. There is an 8 foot graded area on each side of the highway. The lanes are separated by a white marker. The point of impact is visible from approximately 700 feet north, after which there is a dip in the road. A car travelling south could not be seen while in the dip. The grade from the accident facing south is downhill.
Shortly prior to the accident, Ronald Berkbuegler, age 18 at the time of the accident, was returning from a motion picture theater at Brewer, travelling south on Highway 61 toward Perryville. Sheila French occupied the front passenger seat. Eddy Baer and Joyce Cissell were passengers in the back seat. Berkbuegler testified that he drove through the dip and that the next thing he knew was the impact. The front left side of his automobile struck the right rear portion of Erlacker's car. Berkbuegler testified that he did not see the Erlacker automobile before he struck it. He saw no lights. He testified that he did not put on his brakes or swerve. State Trooper Thomas Burger testified that there were tire marks from Berkbuegler's car approximately 15 feet north of the point of impact. Berkbuegler testified that he was not watching his speedometer, but believed that he was travelling at 70 miles per hour or more.
Erlacker's lights were on and in good condition. There was no traffic approaching in the northbound lane. There were 8 foot grades on both sides of the road. Erlacker had approximately 700 feet of clear visibility from the dip to the point of impact.
On the evidence adduced, the court finds that Ronald J. Berkbuegler failed to exercise the highest degree of care by having his automobile under control at the time of the accident, due to the speed at which he was travelling or his failure to observe Erlacker's automobile and avoid the collision by reducing speed or swerving his own automobile. The court finds no evidence of contributory negligence by Erlacker or any of his passengers. The court finds that the collision which resulted in death to Margie Koeper was proximately caused by the negligence of Ronald J. Berkbuegler; and that Ronald J. Berkbuegler would be legally responsible to pay damages for the wrongful death of Margie Koeper resulting from such negligence.
Margie Koeper was 17 years of age and unmarried at the time of her death. She had completed her junior year at St. Vincent High School and would have commenced her senior year when school reopened in the Fall. During the school year she worked during off-hours as a babysitter. During the Summer she continued her babysitting work, gave music lessons, worked as a "basket girl" and lifeguard at the local swimming pool. Her father, John J. Koeper, a civil engineer 69 years of age, testified that Margie was not asked to contribute her earnings to the support of her family. She sewed most of her own clothes and was helpful around the house, performing such household chores from time to time as meal preparation, ironing and washing. Margie was an honor student, had participated in the science fair at Cape Girardeau, was a cheer leader and a student leader. Because of her ability to work with people and to motivate them, she was popular both among her fellow students and with the teachers. She was in good health at the time of the accident. Medical and funeral expenses amounted to $4,900. The measure of damages in Missouri for wrongful death is expressed in Brewer v. Rowe, 363 Mo. 592, 252 S.W.2d 372 (1952), as follows:
At page 377, the court further said:
In a concurring opinion, Judge Dalton observed that the medical ambulance and funeral bills incurred by the parents on account of the death of their child
The approved jury instruction where the measure of damages in wrongful death cases in Missouri is set forth in M.A.I. 5.03:
The use of the instruction under Missouri procedural law is mandatory under Brown v. St. Louis Public Service Co. Mo., 421 S.W.2d 255, 257. As pointed out in Mudd v. Quinn, 462 S.W.2d 757 (Mo.1971), the Committee's comment to M.A.I. 5.03 recognized the substantive law in prior child death cases and chose to recommend, and the Supreme Court adopted, "the broad pecuniary loss standard." The Committee further recommended that the court in an instruction conference outline to the attorneys just what damages are supported by the evidence and can properly be argued to the jury. In Mudd, an eighteen-year old girl was killed in an automobile collision. A verdict of $30,000 was returned by the jury. On appeal, appellants argued that the amount of the verdict was excessive, being the highest verdict they could find for death of a minor in Missouri. The evidence showed that Sue Mudd, age seventeen years, eight months, at her death was a senior in Hannibal High School intending to attend college following her graduation. She was a conscientious student, ranking in the upper 37% of her class, and attentive to school regulations. She was active in school activities and was physically attractive to the point she was nominated as a queen candidate on several occasions. She had a job at a jewelry store under a program where she attended school in the morning and worked in the afternoon five days a week. She also worked from 6:00 to 9:00 P.M. on Fridays and from 9:00 A. M. to 5:00 P.M. on Saturdays. She had a pleasing personality, was friendly to customers, was anxious to help, was respectful and learned quickly. She earned $941.50 from her work in the period May to December, 1967 and had earned $264.50 in 1968 prior to her death March 12. S...
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Shearer v. Motorists Mut. Ins. Co., 77-3
...the contractual relationship of insured and insurer. See Pryor v. Webber (1970), 23 Ohio St.2d 104, 263 N.E.2d 235; Koeper v. Farmers Ins. Co. (E.D.Mo.1972), 354 F.Supp. 93. Governing this contractual relation is the public policy of the state of Ohio as established by the uninsured motoris......
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French v. Farmers Insurance Company, Inc., S71C90.
...are sharply divided. I Fault The findings of fact as set forth in Part I of the Memorandum Opinion in Koeper et al. v. Farmers Insurance Company, 354 F.Supp. 93 (E.D.Mo.1972) are adopted and incorporated herein by On the evidence adduced, the court finds that Ronald J. Berkbuegler failed to......