Liles v. Associated Transports

• Decision Date: 09 May 1949
• Docket Number: 41029
• Parties: O. C. Liles, Plaintiff, Law Union & Rock Insurance Company, a Corporation, Intervening Plaintiff, Respondents, v. Associated Transports, Inc., a Corporation, Defendant, Appellant
• Court: Missouri Supreme Court

220 S.W.2d 36

359 Mo. 87

O. C. Liles, Plaintiff, Law Union & Rock Insurance Company, a Corporation, Intervening Plaintiff, Respondents, v. Associated Transports, Inc., a Corporation, Defendant, Appellant

No. 41029

Supreme Court of Missouri

May 9, 1949

Appeal from Pemiscot Circuit Court; Hon. Louis H. Schult Judge.

Affirmed (subject to remittitur) as to plaintiff and affirmed as to intervenor.

SYLLABUS

Plaintiff was injured when he was unable to stop his automobile as defendant's truck and trailer made a left turn, blocking the highway. There was a submissible case of humanitarian negligence in failing to stop or swerve the truck to the right. Plaintiff's main instruction was not erroneous. Defendant's sole cause instructions were properly refused. Plaintiff's instruction on the measure of damages was not erroneous, but the verdict of $ 37,500 was excessive by $ 17,500. An intervening insurance company which had paid for the total loss of plaintiff's automobile was subrogated to plaintiff's claim for such loss, and a judgment for said intervenor is affirmed, a mistake in the intervening petition not being misleading and the amount of damage to the automobile not being a contested issue.

Jas. T Blair, Jr., Geo. O. Durham, Will B. Dearing and Fred L. Hurley for appellant; Robert C. Hyde and H. K. Wangelin of counsel.

(1) By requesting only an instruction on humanitarian negligence, which was granted, primary negligence dropped out of the case and need not be considered on appeal. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Bowers v. Columbia Terminals Co., 213 S.W.2d 663. (2) Plaintiff was never in the direct path of appellant's vehicle and was only approaching collision with the side of it from a distance of not less than two hundred feet. Plaintiff offered no evidence as to distance in which he might have stopped. He therefore failed to make a submissible case on humanitarian negligence. Blaser v. Coleman, 213 S.W.2d 420; Smithers v. Barker, 111 S.W.2d 48; Lotta v. Kansas City Pub. Serv. Co., 342 Mo. 743, 117 S.W.2d 296. (3) The court, as a matter of common notoriety, will judicially notice that an automobile can be stopped in various maximum distances but will not judicially notice the minimum distances within which they may be stopped. McCombs v. Ellsberry, 85 S.W.2d 135; Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9. (4) Submitting a case to the jury in a humanitarian negligence case, where the ability of plaintiff to stop or slow down is in issue, without evidence as to his own speed and the distance within which he might have stopped or slowed down, in effect invites the jury to find a necessary fact, minus evidence. Ashbrook v. Willis, 100 S.W.2d 943; Cluck v. Abe, 40 S.W.2d 558. (5) Plaintiff's given Instruction I-P on humanitarian negligence was unauthorized by the evidence. See cases, supra, Point (2). (6) It invited the jury to find the collision occurred while the cars were passing, contrary to the evidence. (7) It purported to cover the whole case but did not require the jury to find appellant's alleged failure to stop or swerve was the proximate cause of the collision, as a prerequisite to a verdict for plaintiff, and on the contrary invited a verdict for plaintiff, if appellant's driver failed to exercise the highest degree of care in unspecified particulars. Swain v. Andrews, 349 Mo. 963, 163 S.W.2d 1045; Carson v. Evans, 173 S.W.2d 30. (8) Since no third person was involved in the accident, whose negligence might have contributed to the accident, it was error to instruct the jury it might find against appellant if it was guilty of negligence which "contributed" to cause the accident. It was misleading and constituted reversible error. Moon v. St. L. Transit Co., 152 S.W. 303, 247 Mo. 227; McCombs v. Bowen, 73 S.W.2d 300; Hof v. Transit Co., 213 Mo. 445, 111 S.W. 1166; Krehmeyer v. Transit Co., 220 Mo. 639, 120 S.W. 78. (9) The instruction erroneously excluded appellant's theory that plaintiff's negligence was the sole cause of the collision. Smith v. Barker, 111 S.W.2d 48; Delallo v. Lynch, 101 S.W.2d 7; McGrath v. Meyers, 107 S.W.2d 792. (10) Plaintiff's Instruction 2P on the measure of damages is erroneous and prejudicial in several important particulars. It gives the jury a roving commission to allow plaintiff for his "loss of time and service" and also for his inability to earn a livelihood. Plaintiff was not employed but ran his own business. Plaintiff testified that his business had lost money in the sum of $ 6,000, but such losses were too remote, and the evidence too uncertain to authorize allowance therefor. Kerns and Lorton v. Western Union Tel. Co., 170 Mo.App. 642, 157 S.W. 106; Terre Haute Brew Co. v. Dwyer, 116 F.2d 239. (11) There is no distinction between loss of time and loss of earnings and there must be proof as to the value in either case. Loss of service was not pleaded. There was no evidence of the value of loss of time. Wheeler v. Breeding, 109 S.W.2d 1237; Lee v. Armour Bldg. Co., 185 S.W.2d 102; Chilcutt v. LeClair, 119 S.W.2d 1; Stoetzle v. Swearingen, 96 Mo.App. 592, 79 S.W. 911. (12) The instruction gave the jury a roving commission to allow plaintiff for "medicines and medical" expenses. (13) The instruction is fatally erroneous and prejudicial because the court, without explanation of the source of the figure, invited the jury to render a verdict up to $ 75,000. This court and the courts of appeal have repeatedly criticized instructions which did not sufficiently explain the source of such a figure. Sibert v. Litchfield & M. Ry. Co., 159 S.W.2d 612; Bond v. S.L. & S.F. Ry. Co., 288 S.W. 777. (14) Instruction 1 A given on behalf of intervenor is not authorized by the evidence and is erroneous and prejudicial. It invites the jury to render a verdict for intervenor for special damages (loss and injury to an automobile) minus evidence from which the nature and extent of such loss or damage or the pecuniary value thereof can be determined. It invites the jury to find the damage to the automobile occurred from collision on March 30, 1947, a week after the admitted date of the collision involved in this case. The instruction is erroneous and merely gives the jury a roving commission to allow damages for the car without informing them the measure of damages was the market value before and after the collision. Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903; Glader v. City of Richmond Heights, 121 S.W.2d 254; Wheeler v. Breeding, 109 S.W.2d 1237; Weller v. Hayes Truck Lines, 197 S.W.2d 657. (15) The court committed reversible error in refusing appellant a "sole negligence instruction" and refusing defendant's requested Instruction 2 D or the alternative Instruction 4 D. The instructions were in proper form and supported by evidence. Smith v. Barker, 111 S.W.2d 48; McGrath v. Meyers, 107 S.W.2d 792. (16) The verdict is so grossly excessive as to shock the conscience, and in any event require a new trial, in the event the court concludes plaintiff made a submissible case.

Charles Liles, Ted M. Henson and Ward & Reeves for respondent O. C. Liles.

(1) In considering whether or not plaintiff made a submissible case of humanitarian negligence, evidence must be considered in light most favorable to plaintiff, and every reasonable inference indulged in his favor. Morton v. Ry., 323 Mo. 929, 20 S.W.2d 34; Mech v. Ry., 322 Mo. 927, 18 S.W.2d 510; Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950; Mahoney v. Transit Co., 329 Mo. 793, 46 S.W.2d 817. (2) And plaintiff is entitled to all favorable evidence and inferences therefrom offered by defendant. Here the evidence of defendant (truck drivers) supported plaintiff's case. Smith v. Public Service Co., 328 Mo. 979, 43 S.W.2d 548; Bird v. Ry., 336 Mo 316, 78 S.W.2d 389 (3) Plaintiff and his wife testified that every precaution was taken by plaintiff to stop car or otherwise prevent collision after truck started to make left hand turn in front of car, and this testimony is corroborated by defendant's witness Westbrook. This placed plaintiff in a position of peril under humanitarian rule, without further proof on plaintiff's part as to number of feet required to stop. Collins v. Beckmann, 79 S.W.2d 1052; Gray v. Columbia Terminal Co., 331 Mo. 73, 52 S.W.2d 809; Niehaus v. Schultheis, 17 S.W.2d 603; Vandenberg v. Snider, 83 S.W.2d 201; State ex rel. v. Hostetter, 101 S.W.2d 50. (4) The issue here was not exact number of feet in which plaintiff could stop his car, but whether he was in a position of peril at time truck made left hand turn and whether at that time the truck driver saw, or should have seen the peril in time to have avoided collision. Plaintiff's evidence showed he was in such a position and in that he is corroborated by defendant's witness Westbrook. Teague v. Plaza Express, 190 S.W.2d 254; Bachman v. Ry., 274 S.W. 764; Melenson v. Howell, 130 S.W.2d 555. (5) Plaintiff's Instruction I-P was in proper form. It required the jury to find every element of a humanitarian case and the instruction was drawn in the conjunctive. Grubbs v. Public Service Co., 329 Mo. 390, 45 S.W.2d 71; Wolf v. Payne, 214 S.W. 915; Potterfield v. Ry., 5 S.W.2d 447; Bauer v. Fahr, 282 S.W. 150; Houston v. Am. Car Co., 282 S.W. 170. (6) It was not error for this instruction to use the phrase "contributed to," since it submitted in conjunctive all elements and being a humanitarian case, contributory negligence was no defense. Evans v. Klusmeyer, 301 Mo. 352, 256 S.W. 1036; Luecke v. Ry., 146 Mo.App. 500; Grubbs v. Pub. Service, 329 Mo. 390, 45 S.W.2d 71; Gray v. Kurn, 345 Mo. 1027, 137 S.W.2d 558. (7) Furthermore, plaintiff's Instruction I-P must be read with defendant's Instruction I-D, and when taken together the jury could not have been misled. ...