Krueger v. Walters

• Decision Date: 03 April 1944
• Docket Number: No. 20411.,20411.
• Citation: 179 S.W.2d 615
• Parties: NETTIE KRUEGER, RESPONDENT, v. THEODORE WALTERS, APPELLANT.
• Court: Missouri Court of Appeals

179 S.W.2d 615

NETTIE KRUEGER, RESPONDENT, v. THEODORE WALTERS, APPELLANT.

No. 20411.

Kansas City Court of Appeals, Missouri.

April 3, 1944.

Appeal from Adair Circuit Court. — Hon. Noah W. Simpson, Judge.

REVERSED AND REMANDED.

E.M. Jayne, Thos. E. Deacy and Milligan, Kimberly & Deacy for appellant.

(1) Plaintiff's action was barred unless she properly and lawfully appropriated same within six months from the date of her husband's death, because the action was thereafter vested in minor child of deceased. Cummins v. Kansas City Public Service Co., 66 S.W. (2d) 920; Goldschmidt v. Pevely Dairy Co., 111 S.W. (2d) 1. (2) Plaintiff failed to establish that she had properly or lawfully appropriated the action within six months from the date of her husband's death by filing suit in a court of competent jurisdiction and the suit having been filed more than six months from the date of death was barred and defendant's demurrer should have been sustained. Chandler v. Chicago & A.R. Co., 251 Mo. 592, 158 S.W. 35; King v. Smith Baking Co., 71 S.W. (2d) 115; Betz v. K.C. Southern Ry. Co., 314 Mo. 390, 284 S.W. 455. (3) The filing by plaintiff of the suit in the Circuit Court of Newton County, Missouri, where neither plaintiff nor the defendant resided, and which court did not have jurisdiction of the parties, was a nullity and did not stay the running of the statute. Conrad v. McCall, 205 Mo. App. 640, 226 S.W. 265; Mertens v. McMahon, 115 S.W. (2d) 180; Metzger v. Metzger, 153 S.W. (2d) 118; Wente v. Shaver, 350 Mo. 1143, 169 S.W. (2d) 947. (4) An instruction purporting to cover the whole case and authorizing a verdict for the plaintiff is erroneous if it leaves out any facts necessary to be found before the plaintiff is entitled to recover. McDonald v. K.C. Gas Co., 332 Mo. 356, 59 S.W. (2d) 37; Lanio v. K.C. Pub. Serv. Co., 162 S.W. (2d) 862; Blackwell v. Union Pac. R. Co., 331 Mo. 34, 52 S.W. (2d) 814; Alexander v. Hoenshell, 66 S.W. (2d) 164. (5) Plaintiff's Instruction No. 1 was erroneous because it failed to require a finding that the alleged negligence of the defendant was the proximate cause of the death of the deceased was proximately caused as the result of injuries inflicted in the negligence of the defendant. McCombs v. Bowen, 73 S.W. (2d) 300; Ducoulombier v. Baldwin, 101 S.W. (2d) 96; Lackey v. United Rys. Co., 288 Mo. 120, 231 S.W. 956; Jablonski v. May Dept. Stores, 153 S.W. (2d) 786; Pence v. K.C. Laundry Service Co., 332 Mo. 930, 59 S.W. (2d) 633. (6) Plaintiff's humanitarian instruction was reversibly erroneous because it submitted to the jury as a specification of negligence a failure to slacken speed when there was no evidence tending to show that such failure was a proximate cause of the accident. Alexander v. Hoenshell, 66 S.W. (2d) 164; Kick v. Franklin, 342 Mo. 715, 117 S.W. (2d) 284. (7) Plaintiff's instructions Nos. 1 and 2 were reversibly erroneous for the reason that two separate and inconsistent theories of negligence were submitted therein. Tunget v. Cook, 84 S.W. (2d) 970; State ex rel. Tunget v. Shain et al., 340 Mo. 436, 101 S.W. (2d) 1; Elliott v. Richardson, 28 S.W. (2d) 408; Kick v. Franklin, 342 Mo. 715, 117 S.W. (2d) 284. (8) Plaintiff's Instruction No. 2 was erroneous for the reason that it failed to submit the issue of contributory negligence. Pence v. K.C. Laundry Service Co., 332 Mo. 430, 59 S.W. (2d) 633; Barnes v. Kansas City, 63 S.W. (2d) 164; Hawkins v. Mo. Pac., 182 Mo. App. 323, 170 S.W. 459; Daniels v. Langensand, 96 S.W. (2d) 911; Banty v. City of Sedalia, 120 S.W. (2d) 59; Cuddy v. Shell Petroleum Co., 127 S.W. (2d) 24. (9) Plaintiff's Instruction No. 5 was erroneous for the reason that it failed to limit damages to the pecuniary loss suffered by the plaintiff and gave to the jury a roving commission. Morton v. Southwestern Telegraph & Telephone Co., 280 Mo. 360, 217 S.W. 831; Miller v. Williams, 76 S.W. (2d) 355; Bennette v. Hader, 337 Mo. 977, 87 S.W. (2d) 413. (10) The trial court erred in refusing defendant's Instruction No. 2. The filing of suit by plaintiff in the Circuit Court of Newton County, which did not have jurisdiction over the defendant, was a nullity and did not serve to toll the Statute of Limitations and was not a sufficient appropriation of the action by plaintiff if she knew that the defendant was not a resident of Newton County and that the circuit court of said county did not have jurisdiction. Conrad v. McCall, 226 S.W. 265; Mertens v. McMahon, 115 S.W. (2d) 180; Wente v. Shaver, 350 Mo. 1143, 169 S.W. (2d) 947.

Phillip J. Fowler and Robert Stemmons for respondent.

(1) The court did not err in overruling defendant's demurrer to the evidence. Huss v. Bohrer, 295 S.W. 95; Cummins v. K.C. Pub. Serv. Co., 66 S.W. (2d) 931; Meyer v. Pevely Dairy Co., 64 S.W. (2d) 699; Packard v. Railroad, 181 Mo. 429. (2) The stipulation filed in the case and introduced in evidence stands in lieu of a special verdict. It was therefore unnecessary to submit admitted facts to the consideration of the jury. Plaintiff's instructions Nos. 1 and 2 were not erroneous in failing to require the jury to find that plaintiff had appropriated the cause of action by filing suit within six months after the death of her husband. 25 Ruling Case Law, page 1104, section 12; West Missouri Life Time Digest, Stipulations, Key No. 14 (10); Gage v. Gates, 62 Mo. 412; Vanderline v. Smith, 18 Mo. App. 55; Jackson v. K.C.P. & G.R. Co., 66 Mo. App. 506; State to the Use of Kenrick v. Hudson, 86 Mo. App. 501; Allen v. Purvis, 30 S.W. (2d) 196. (3) Contributory negligence is an affirmative defense. It was necessary for the defendant to plead contributory negligence to avail himself of that defense. Defendant's answer does not plead contributory negligence, but pleads sole cause negligence. Failure on the part of defendant to request an instruction on contributory negligence constitutes an abandonment by him of that defense, even though it had been properly pleaded. It was therefore unnecessary for defendant to have negatived the defense of contributory negligence in Instruction No. 2. Melly v. Railroad, 215 Mo. 589; 1 Raymond's Missouri Instructions, p. 38, Sec. 35; Studt v. Leiweke (Mo. App.), 100 S.W. (2d) 30; Hill v. Landau (Mo. App.), 125 S.W. (2d) 516; Schlue v. Mo. Pac. Trans. Co., 63 S.W. (2d) 934. (4) Plaintiff's Instruction No. 5 on the measure of damages was not error. It has been approved. If the defendant wished a more detailed instruction, he should have asked for it. Browning v. Railway Co., 124 Mo. 71; Morton v. Lloyd, 280 Mo. 382. (5) The court did not err in refusing defendant's Instruction No. 2, requiring the jury to find for the defendant if they found from the evidence that plaintiff knew at the time she filed her suit in Newton County that the defendant was a resident of Adair County. Such is not the law. There was no evidence upon which to base said instruction. Huss v. Bohrer, 295 S.W. 95; Cummins v. K.C. Pub. Serv. Co., 66 S.W. (2d) 931; Meyer v. Pevely Dairy Co., 64 S.W. (2d) 931. (6) Plaintiff's instructions one and two were not erroneous for failure to require a finding of proximate cause. Miller v. Collins, 40 S.W. (2d) 1067; McDonald v. K.C. Gas Co., 59 S.W. (2d) 40.

BLAND, J.

This is an action for the wrongful death of the plaintiff's husband. There was a verdict and judgment in favor of plaintiff in the sum of $4500, and the defendant has appealed.

The facts show that plaintiff is the widow of Christian F. Krueger, deceased, who was killed on December 10, 1941, as the result of being struck, in the nighttime, by an automobile being driven by the defendant. Plaintiff and her husband had been to Springfield visiting a daughter in a hospital there, who had recently given birth to a child. They were returning to their home in Lawrence County, on Highway No. 66. Their car became stalled near the town of Phelps, in Lawrence County. They alighted from the car, seeking assistance. At the time her husband was killed, they were walking westwardly on the shoulder of Highway No. 66, and had arrived at a point about one mile west of Phelps. Deceased was walking about one and a half feet north of the pavement, with a flashlight in his hand, and plaintiff farther north, with their backs toward the east. Defendant came from the east driving his automobile at a rate of speed of between forty and fifty miles per hour, and struck plaintiff's husband, causing his death.

Defendant's evidence tends to show that deceased was walking upon the paved portion of the highway and that defendant was blinded by the lights of a passing motor vehicle. The fact that defendant's car struck and killed deceased is admitted.

Although plaintiff was a resident of Lawrence County, and defendant of Adair County, plaintiff filed a suit in the Circuit Court of Newton County, on January 9, 1942, against the defendant to recover for the death of her husband. Thereafter, on February 21, 1942, an alias summons was issued, returnable to the June Term of that court. The Sheriff of Newton County served the alias summons on the defendant in Newton County and, on June 1, 1942, defendant filed a plea to the jurisdiction, alleging that neither he, nor the plaintiff, resided in said county, and that he had his home in Kirksville, Adair County. Thereafter, on June 8, 1942, plaintiff dismissed her suit in the Circuit Court of Newton County and, on July 23, 1942, filed another (the present) suit in the Circuit Court of Adair County.

The Sheriff, testifying for the plaintiff, stated that, on the night of the collision, defendant stated to him that he resided in Kirksville; that he was temporarily rooming in Neosho while employed at Camp Crowder.

William Sisk, a son-in-law of plaintiff and the deceased, testified that he talked with defendant about a week after the collision. He was asked whether defendant did not state to him, at that time, that his home was in Kirksville, Adair County. He replied that he...