Lindquist v. Kansas City Public Service Co.

• Citation: 169 S.W.2d 366,350 Mo. 905
• Decision Date: 04 January 1943
• Docket Number: 37661,37662
• Parties: Florence M. Lindquist, Respondent, v. Kansas City Public Service Company, a Corporation, and P. Setzler & Sons Soda Water Manufacturing Company, a Corporation, Appellants
• Court: United States State Supreme Court of Missouri

169 S.W.2d 366

350 Mo. 905

Florence M. Lindquist, Respondent, v. Kansas City Public Service Company, a Corporation, and P. Setzler & Sons Soda Water Manufacturing Company, a Corporation, Appellants

Nos. 37661, 37662

Supreme Court of Missouri

January 4, 1943

Rehearing Denied March 25, 1943.

Appeal from Jackson Circuit Court; Hon. Paul A. Buzard Judge.

Reversed and remanded (with directions).

Charles L. Carr and Cowgill & Popham for Kansas City Public Service Company, appellant.

(1) Instruction 5 is a proper converse instruction. "Instructing and Reviewing Instructions," Trusty. (2) Appellant adopted respondent's theory of submission since its Instruction 5 specifically refers to respondent's Instruction 1. Consolidated School Dist No. 3 of Grain Valley v. West Missouri Power Co., 329 Mo. 690, 46 S.W.2d 174. (3) Since Instruction 5 adopted plaintiff's theory of submission set out in Instruction 1, no error can be predicated upon the giving of Instruction 5, whether Instruction 1 be good or bad. Murphy v. Duerbeck, 19 S.W.2d 1040; Kincaid v. Birt, 29 S.W.2d 97; Szuch v. Ni Sun Lines, Inc., 332 Mo. 469, 58 S.W.2d 471; Wallace v. St. Joseph Ry., L., H. & P. Co., 336 Mo. 282, 77 S.W.2d 1011.

Adams, Adams & Adams for P. Setzler & Sons Soda Water Manufacturing Company, appellant.

(1) The Supreme Court of Missouri has jurisdiction of this appeal. Powell v. St. Joseph Ry., L., H. & P. Co., 336 Mo. 1016, 81 S.W.2d 957. (2) Respondent, plaintiff below, did not make a submissible case against appellant, P. Setzler & Sons Soda Water Manufacturing Company; therefore, it is immaterial whether or not the court erred in instructing the jury. Jacoby v. New York Life Ins. Co., 229 Mo.App. 333, 77 S.W.2d 840; Kansas City Stockyards Co. v. Federal Grain Co., 279 S.W. 771; Barr v. Mo. Pac. R. Co., 37 S.W.2d 927; Shepard v. Met. Life Ins. Co., 231 Mo.App. 148, 99 S.W.2d 144. (3) The court erred in granting a new trial because of the giving of Instruction 8 because the language of said instruction did not impose upon respondent a greater burden of proof than imposed by law. (4) The court erred in granting a new trial because of the giving of Instruction 8 because said instruction merely adopted respondent's instruction and imposed no burden on the respondent that had not already been assumed by respondent. Szuch v. Ni Sun Lines, Inc., 58 S.W.2d 471; Keet-Rountree Dry Goods Co. v. Hodges, 175 Mo.App. 484; Jaggard v. Met. Street Ry. Co., 264 Mo. 142, 174 S.W. 371; Lange v. Mo. Pac. Ry. Co., 208 Mo. 458, 106 S.W. 660.

Homer A. Cope, Cope & Hadsell and Walter A. Raymond for respondent.

(1) A submissible case was made against appellant, P. Setzler & Sons Soda Water Manufacturing Company. Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065; Thompson v. Smith, 253 S.W. 1023; Ritz v. Cousins Lbr. Co., 227 Mo.App. 1167, 59 S.W.2d 1072; Benoist v. Driveaway Co. of Missouri, 122 S.W.2d 86; Yerger v. Smith, 338 Mo. 140, 89 S.W.2d 66; Greer v. St. Louis Pub. Serv. Co., 87 S.W.2d 240; Kourik v. English, 340 Mo. 367, 100 S.W.2d 901; Phelps v. Montgomery Ward & Co., 231 Mo.App. 595, 107 S.W.2d 939. (2) The court properly granted plaintiff a new trial because of error in defendants' instructions 5 and 8, as such instructions were long, argumentative, involved, and not in proper form. Mengel v. St. Louis, 341 Mo. 994, 111 S.W.2d 5. (3) The court properly granted plaintiff a new trial because of error in giving Instruction 5 for the defendant, Public Service Company, and Instruction 8 for the defendant Setzler Company for the reason that such instructions imposed on plaintiff a greater burden of proof than is imposed by law. Wolfe v. Payne, 294 Mo. 170, 241 S.W. 915; Callicotte v. Chicago, R. I. & P. Ry. Co., 274 Mo. 689, 204 S.W. 529; Webster v. International Shoe Co., 18 S.W.2d 131; Houston v. American Car & Foundry Co., 282 S.W. 170; Westenhaver v. St. Louis & S. F. Ry. Co., 340 Mo. 511, 102 S.W.2d 661; Meeker v. Union Electric L. & P. Co., 279 Mo. 574, 216 S.W. 923; Hough v. Chicago, R. I. & P. Ry. Co., 339 Mo. 1169, 100 S.W.2d 499; Roemer v. Wells, 257 S.W. 1056; Littig v. Urbauer-Atwood Heating Co., 292 Mo. 226, 237 S.W. 779; Williams v. Tucker, 224 S.W. 21; Henry v. Cleveland, C. C. & St. L. Ry. Co., 332 Mo. 1072, 61 S.W.2d 340; Szuch v. Ni Sun Lines, Inc., 332 Mo. 469, 58 S.W.2d 471. (4) Defendants' instructions 5 and 8 are contrary to plaintiff's theory of submission and the error in giving these instructions was not invited by plaintiff. Brotherhood of Locomotive Firemen & Enginemen v. Shain, 343 Mo. 666, 123 S.W.2d 1; Westenhaver v. St. Louis-S. F. Ry. Co., 340 Mo. 511, 102 S.W.2d 661; Callicotte v. Chicago, R. I. & P. Ry. Co., 274 Mo. 689, 204 S.W. 529; Brewer v. Silverstein, 64 S.W.2d 289; Bleil v. Kansas City, 70 S.W.2d 913; Millhouser v. Kansas City Pub. Serv. Co., 331 Mo. 933, 55 S.W.2d 673.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Florence M. Lindquist instituted this action against the Kansas City Public Service Company, a corporation, and P Setzler & Sons Soda Water Manufacturing Company, a corporation, seeking $ 15,000 for personal injuries. The jury returned a verdict for the defendants. Plaintiff's motion for new trial was sustained for the stated reason that error was committed in giving instructions Nos. 5 and 8. The defendants appeal from said order. The Setzler Company asserts plaintiff did not make a case against it. However, if defendants are entitled to hold the verdict, the case may be determined on whether a defendant is entitled to the converse of a plaintiff's main instruction which submits several charges of negligence in the conjunctive and a detailed statement of the facts may be omitted.

Plaintiff was a passenger on a Public Service Company bus, riding on the long seat at the rear of the bus. A Setzler Company truck was ahead of the bus and when the truck stopped on a street intersection, the bus operator applied the brakes causing the speed of the bus to be suddenly slackened but not in time to prevent the bus running into the truck. Plaintiff testified this sudden slackening of the speed and stopping of the bus threw her into the aisle, inflicting the injuries for which she seeks damages. The operator of the truck, whose deposition plaintiff offered, testified the truck was not damaged by the collision, "I could not see where it even hit it"; and the operator of the bus, who was called by plaintiff, testified the collision was a slight bump, he having slowed to practically a crawl; that there was no visible damage to the truck or bus; and that no one appeared to be upset and he thought the incident so trivial he did not obtain the names of his passengers. For the defendants there was evidence, among other things, from a passenger of the bus that the collision was light, that it did not throw him out of the seat and that he saw no lady down on the floor.

Plaintiff's main and only instruction predicating a recovery covers three pages of the printed abstract. It hypothesized certain facts, stated certain principles of law applicable thereto and submitted plaintiff's case on charges of negligence as follows: "and that the defendant Kansas City Public Service Company was negligent in causing or permitting said trolley bus to give a sudden, violent, unusual, and unexpected jerk or lurch, if so, and to collide with the rear of said automobile truck, if so, and to come to a sudden and unexpected stop, if you so find; and that the operator of said trolley bus negligently failed to keep a lookout ahead, if so; and that he negligently followed said automobile truck too closely, if so; and that he negligently failed to timely apply the brakes on said motor bus, if so; . . . [and after hypothesizing certain facts with respect to the operator of the defendant Setzler Company's truck] and that said driver and operator of said automobile truck negligently failed to give a proper warning signal, visible to the operator of said trolley bus of his intention to slow down, or stop, by extending his arm horizontally to the left of said automobile truck, if so; and that he negligently and carelessly failed to keep a vigilant and careful lookout laterally and to the rear of said automobile truck, if so, . . . and if you further find and believe from the evidence that as a direct and proximate result of the negligence of both defendants, as herein submitted, if you so find, . . . she [plaintiff] was thereby caused to receive injuries, if you so find, then your verdict will be in favor of the plaintiff and against both defendants."

Instruction No. 5, on behalf of defendant Public Service Company, and instruction No. 8, on behalf of defendant Setzler Company, were identical except for the necessary variations to make each applicable to the particular defendant asking the instruction. A ruling with respect to one rules the other. The answer of each defendant was a general denial. Instruction No. 5 read:

"The court instructs the jury that plaintiff, Mrs. Lindquist, in this case alleges and submits (1) that defendant Kansas City Public Service Company was negligent in the respects and only in the respects as submitted in instruction No. One and (2) that she was injured while on said bus and (3) that such alleged negligence of defendant Kansas City Public Service Company directly contributed to her alleged injuries, and these allegations or charges are by defendant Kansas City Public Service Company denied; and you are instructed that under the law the burden of proof on the above issues rests upon plaintiff, Mrs. Lindquist, and this burden of proof on the above issues continues and abides with her throughout the trial, and requires her to establish the truth of each of such charges as laid to the reasonable satisfaction...