Lach v. Buckner

• Decision Date: 07 October 1935
• Docket Number: No. 18347.,18347.
• Citation: 86 S.W.2d 954
• Parties: GRACE LACH, ADMINISTRATRIX, ETC., RESPONDENT, v. WILLIAM G. BUCKNER, APPELLANT.
• Court: Missouri Court of Appeals

86 S.W.2d 954

GRACE LACH, ADMINISTRATRIX, ETC., RESPONDENT, v. WILLIAM G. BUCKNER, APPELLANT.

No. 18347.

Kansas City Court of Appeals. Missouri.

October 7, 1935.

Appeal from Circuit Court of Jackson County. — Hon. Emory H. Wright, Judge.

AFFIRMED.

Clay C. Rogers, Mosman Rogers and Bell & Buzard for respondent.

Morrison, Nugent, Wylder & Berger and Charles C. Byers, Jr. for appellant.

TRIMBLE, J.

The action involved herein is a suit for damages because of the fact that John E. Lach was struck by defendant's truck as Lach was walking across the intersection of 61st Street and Brookside Boulevard in Kansas City, Missouri. Lach was walking east on 61st Street, crossing Brookside, and was in said intersection, when defendant's Ford truck, driven north by the latter's servant on Brookside, struck and knocked Lach down. The accident occurred at 6:15 P.M., on November 19, 1930, and on March 24, 1931, Lach filed suit, to which defendant, Buckner, on May 12, 1931, filed answer. Thereafter, on November 4, 1932, defendant filed suggestions of the death of Lach, and on the 18th day of February, 1933, Grace Lach, as Administratrix of the estate of John E. Lach, deceased, filed motion to revive, under section 3280, Revised Statutes of Missouri, 1929 (5 Mo. St. Ann., p. 3398), which motion was sustained on the 18th of February, 1933, and Grace Lach, as such administratrix, was substituted as party plaintiff, and summons was ordered to issue for defendant, William G. Buckner, to appear on or before March 4, 1933, and show cause, if any, why the action should not be revived. Whereupon, defendant, on said 19th day of February, 1933, entered his appearance and plaintiff filed her amended petition. Thereafter, on February 20, 1933, defendant filed written waiver of summons, and process and entry of appearance to the March term, 1933, to said amended petition.

On February 12, 1934, it being a part of the January term, 1934, of said court, defendant filed his amended answer to said amended petition.

Thereupon a trial was had, and on February 14, 1934, the jury returned a verdict in plaintiff's favor for $3,800. Defendant has duly appealed.

Said amended petition charged negligence in that defendant: 1. Negligently and carelessly failed to keep a reasonably careful and vigilant lookout for pedestrians on said street intersection. 2. Failed to sound or give a signal of warning of the approach of said truck. 3. Moved and operated said truck at an excessive, dangerous and unreasonable rate of speed under the circumstances then and there existing. 4. Drove and operated said truck in the nighttime at more than a half-hour after sundown without any or sufficient lights on said truck. 5. Failed to keep truck under such reasonable control so as to be able to stop the same, when, by the exercise of the highest degree of care, it should have appeared that there was danger of striking and injuring said John E. Lach. 6. Failed to exercise the highest degree of care in the operation of said truck and failed to stop said truck and prevent striking said John E. Lach. 7. Failed to swerve said truck aside, or slacken the speed thereof, or stop the same, or give timely signal of warning of the approach thereof, by reason of which the striking and injury of said John E. Lach could have been prevented. 8. That "each and every one of said negligent acts operated jointly and concurrently to and did cause the injury to the said John E. Lach," by reason of which he was damaged in the sum of $25,000 and for which judgment was prayed.

The amended answer to plaintiff's amended petition first contained a general denial, next a plea that John E. Lach was guilty of contributory negligence in that he "failed to exercise ordinary care for his own safety in crossing said intersection;" that he failed to exercise ordinary care in observing approaching traffic, and negligently failed to avoid placing himself in a position of danger at said time and place; in that said Lach "negligently followed a diagonal course in crossing said intersection instead of following the sidewalk lines;" in that said Lach, "although he saw or in the exercise of ordinary care for his own safety could have seen the truck ... in time by the exercise of ordinary care for his own safety to have avoided colliding with the same, nevertheless placed himself in a position of danger, and negligently failed to remove himself therefrom."

In defendant's opening statement to the jury, his counsel stated that the accident happened November 19, 1930, and two years later, sometime in November, 1932, Mr. Lach died from cerebral hemorrhage, and the contributing cause, as given by the doctors, was arteriosclerosis, which means hardening of the arteries. "Now, gentlement of the jury, there is no claim in this petition, and it is not claimed, and there will be no evidence in the case that this accident caused the arteriosclerosis; there will be no evidence that it caused the stroke from which he suffered between the time of the accident and the time of his death, nor will it be in evidence that it produced the cerebral hemorrhage from which Mr. Lach died in 1932."

It is contended by defendant that the court erred in refusing to direct a verdict for defendant as requested by him at the close of the entire case. Defendant's claim is that, notwithstanding plaintiff's cause of action stands revived under the provisions of section 3280, Revised Statutes of Missouri, 1929, 5 Mo. St. Ann., p. 3298, which applies only to injuries, "other than those resulting in death," yet, nevertheless, the evidence introduced by plaintiff is to the effect that John E. Lach's death was precipitated and hastened by his alleged injuries. This contention cannot be answered, in this case, merely by the argument that the case was tried, by both sides, on the theory that decedent's death was not the result of the collision or the acts complained of. It may well be, that if the case was so tried by both sides, defendant would not be allowed to change his theory on appeal. [Roth, Admr., v. City of St. Joseph, 180 Mo. App. 381.] We are not saying that a defendant may not, by the manner in which the case is tried, preclude himself from raising the point on appeal that the evidence shows that the death resulted from the injuries sued for in the revived case, and, therefore, the case is not revivable under Section 3280. It is possible for him to so preclude himself, under certain circumstances. [Jordan v. St. Joseph, etc., Power Co., 73 S.W. (2d) 205, 213.] The revived case does not show any express statement or concession on the above question, in the pleadings. Plaintiff, in her petition, alleged that decedent's death was not so caused, and defendant, by his amended answer containing a general denial, technically disputed that allegation. It cannot be said that defendant's counsel, in his opening statement to the jury, conceded that the death was not caused by the collision. At most, said opening statement was merely telling the jury what the plaintiff had pleaded, and what counsel thought plaintiff's evidence would be. Defendant's given instruction J does not bind him to the theory that the collision did not result in plaintiff's husband's death, for it only told the jury that plaintiff "makes no claim" that said husband's death was caused by the accident; and the fact that the instruction ended by saying that "you are instructed that the plaintiff cannot in this action recover damages for the death of said John E. Lach" did not, in effect, concede that his death was not so caused. It merely stated what was true as a matter of law. Before that instruction was asked and given, defendant had already asked, and was refused, his peremptory instruction to find for defendant. If now, contrary to what plaintiff pleaded and claimed in his opening statement, the evidence in plaintiff's behalf did, in fact, show that the husband's death resulted from the accident, then defendant can still urge that the case was not revivable and that error was committed in refusing his demurrer.

It would seem, therefore, that whether the refusal of the demurrer to the evidence was erroneous because it was conclusively shown that the accident did result in the husband's death, is a point still open to defendant to urge, and the effectiveness of such point depends on what the evidence does conclusively show in this regard.

The evidence in plaintiff's behalf is to the effect that John E. Lach was seventy-two years of age when, on November 19, 1930, he was struck by the truck, the alleged negligent act on which the suit is based. His arteries were hard before the accident, they were in the condition the doctors call arteriosclerosis, an accompaniment, in greater or less degree, of such advanced age. The accident did not cause the sclerosis, the doctors so testify. While decedent suffered a severe concussion of the brain at the time of the accident, and on October 4, 1932, had a cerebral hemorrhage of which the physicians said "Arteriosclerosis was the contributing cause." The plaintiff's evidence from the medical witnesses is (and the death certificate so stated), that he died from a cerebral hemorrhage with arteriosclerosis the contributing cause.

A physician, Dr. Revelle, whose deposition was taken by defendant, but was introduced as a part of the evidence on plaintiff's side, testified that he was called to attend Mr. Lach on the morning of November 20, 1930, after he was struck by the truck; and continued to treat him until December 4 and then dismissed him from treatment until he was called again on December 16, 1930, when Lach had a convulsion, which the doctor diagnosed "as a subsequent symptom of arteriosclerosis, cerebral arteriosclerosis or hardening of the arteries, particularly the arteries of the brain." The doctor testified that he thereafter treated Mr. Lach for cerebral hemorrhage and that ultimately he died, as result of that...