Marlow v. Nafziger Baking Co.

• Citation: 63 S.W.2d 115,333 Mo. 790
• Decision Date: 24 August 1933
• Docket Number: 31291
• Parties: Mary Marlow v. Nafziger Baking Company, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

63 S.W.2d 115

333 Mo. 790

Mary Marlow v. Nafziger Baking Company, a Corporation, Appellant

No. 31291

Supreme Court of Missouri

August 24, 1933

Appeal from St. Francois Circuit Court; Hon. B. H. Boyer Judge.

Affirmed.

Green Henry & Remmers for appellant.

(1) A nonexpert witness cannot testify as to the speed of an automobile unless qualified to do so. State v Watson, 216 Mo. 420; Stotler v. Railroad, 200 Mo. 123. (2) Witness cannot express an opinion as to a vital point in issue. (3) The declarations of an agent are inadmissible when made after the event, either as to his agency or as to scope of employment, because such declaration is hearsay testimony and not part of the res gestae. Yocum v. Railroad, 199 S.W. 263; Koenig v. Union Depot, 173 Mo. 698; State ex rel. v. Daues, 19 S.W.2d 701. (4) As an element of damage for death is the loss of earnings, the evidence offered to show the physical condition of the deceased, particularly as to why he was retired from his work a year or so prior to the accident was clearly admissible and it was reversible error to exclude it. Board v. Railroad, 249 Mo. 110; Kaiser v. Railroad, 175 S.W. 98. (5) The giving of an instruction on the court's own motion authorizing the jury to exclude the testimony of any witnesses who swore falsely is error unless there is testimony in the record showing that some witness actually swore falsely. Keeline v. Seely, 165 S.W. 1096; Craig v. United Rys., 185 S.W. 205; Kansas City v. Boruff, 243 S.W. 172; Farmers State Bank v. Miller, 26 S.W.2d 866. (6) As there was no competent evidence to the effect that the defendant was operating the truck at a high and dangerous rate of speed, it was error to embody that assignment of negligence in plaintiff's Instruction 1. Baker v. McMurray Const. Co., 282 Mo. 685; Kansas City, etc., Ry. v. Couch, 187 S.W. 64; Roberts v. Wilson, 33 S.W.2d 169. (7) Statements of counsel based on facts not in evidence, especially where calculated to arouse prejudice or a feeling of resentment against the other side, constitute reversible error. Neff v. City of Cameron, 213 Mo. 370; Jackson v. Railroad, 206 S.W. 244; Stanton v. Jones, 19 S.W.2d 507. (8) Argument of counsel which unduly reflects upon the character of a witness is improper and constitutes reversible error. State v. Ackley, 183 S.W. 291; Bails v. Evans, 182 Mich. 383; State v. Brunette, 28 N.D. 539. (9) Argument of counsel which appeals to prejudice against corporations or wealth of the parties constitutes reversible error. Harper v. Western Union, 92 Mo.App. 304; Monroe v. Railroad, 297 Mo. 633; Smith v. Railroad, 31 S.W.2d 105; Railroad v. Story, 63 Ill.App. 239; Beck v. Railroad, 129 Mo.App. 7. (10) An award of $ 8,000 to a widow where the husband earned $ 12 to $ 15 a week and received $ 7 a week as a pension and was fifty-six years old was grossly excessive. Cole v. Young, 207 Mo.App. 528; Dougdale v. Ry. Co., 189 S.W. 830; Stooky v. Railroad, 249 S.W. 141; Smith v. Pryor, 190 S.W. 69.

W. R. Carver and Terry & Terry for respondent.

(1) Plaintiff was entitled to plead, prove and argue, or prove and argue without special pleading, the amount of damages that may seem fair and just with reference to the necessary injury resulting from death, to plaintiff, having regard to the mitigating and aggravating circumstances attending such wrongful act of negligence causing the death of plaintiff's husband. Sec. 3264, R. S. 1929; La Bella v. Telephone Co., 24 S.W.2d 1077; Polk v. Krenning, 2 S.W.2d 109. (2) There was no error in the statements complained of in the argument, for the reason that a trial judge who has heard the speeches of opposing counsel has had knowledge of what was said to provoke and cause the counsel to make the statements and argument. Huckshold v. Railroad, 90 Mo. 559; Rainier v. Railroad, 271 S.W. 506; Lilly v. Kansas City, 209 S.W. 972. (3) There was no error in the introduction of the testimony of Norval Marlow, though he be called a nonexpert witness, because a nonexpert witness can testify as to the speed of a truck, and the question is only one of credibility. Besides, defendant in this case in his cross-examination showed that Norval Marlow was, in fact, an expert witness and qualified to testify as an expert witness on speed of automobiles. Tutie v. Kennedy, 272 S.W. 121; Flach v. Ball, 240 S.W. 469; Messner v. Gentry, 220 Mo.App. 1298. (4) The court will not interfere with the jury's discretion in awarding damages for death unless their discretion has been greatly abused. Polk v. Krenning, 2 S.W.2d 109. (5) An award of $ 8,000 to a widow where she is fifty-one years old, her husband fifty-five years old, and he earning $ 3.50 some days, $ 4 other days and $ 6 other days, and drawing a gratuity of $ 30 per month, is not excessive under the mortality tables, expectancy of life and probable earning capacity of husband, introduced in evidence in this case, which show the same to be about $ 18,761, with a present value of $ 10,724. Secs. 7547, 7548, 7549, R. S. 1919.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is an action for damages by a widow for the death of her husband who was killed when a truck, belonging to defendant, struck a buggy in which he was riding with his son. The charges of negligence, which were submitted to the jury, were: Driving at a high and dangerous rate of speed and driving to the left of the center of the highway. The jury returned a verdict for the plaintiff for $ 8,000 and from the judgment entered thereon the defendant has appealed.

Plaintiff's account of the accident was given by the son of the deceased who was driving the buggy. He testified that as he was driving south on State Highway No. 61, approaching a curve, he saw defendant's truck coming north, also approaching the curve; that it was running from fifty to sixty miles per hour; that when the truck was about 300 yards from them he saw it was west of (on the left side of) the center of the highway; that it ran back and forth across the black line in the center of the highway; and that to avoid it he got clear off of the concrete on the west (right-hand) side onto the shoulder. In spite of his efforts, the truck struck the buggy headon and then turned over on it while it was on the right-hand shoulder of the highway, killing the horse and completely demolishing the buggy. Plaintiff's husband was killed and her son who was driving, was severely injured, remaining unconscious for some time. Plaintiff also showed by a filling station operator who heard the crash and ran immediately to the scene, a constable, and a deputy sheriff who came soon afterwards and made measurements, that there were skid marks, such as tires sliding on the pavement would make, starting at the top of the curve, extending on the west (left-hand) side of the highway for about 200 feet, then going back on the east (right-hand) side about fifty feet to the outside edge of the highway (one track went off the concrete), then turning back to the left side of the highway, and going to the place where the truck lay on its side on top of the wreckage of the buggy. They also said that the buggy was slid along under the truck fifty feet. The driver of the truck who testified on behalf of the defendant said that he was driving between twenty-five and thirty miles per hour; that as he rounded the curve the truck began to weave from one side of the road to the other; that he applied his brakes so that he skidded his wheels; that he tried to steer the truck to the right but could not control it; and that he could not account for its actions. It was also shown by defendant that there was a governor on the truck set to hold its maximum speed to thirty-eight miles per hour.

Defendant assigns as error the submission of the question of high and dangerous rate of speed, contending there was no evidence upon which to base it. The only witness who testified to the speed was plaintiff's son who was driving the buggy. On direct examination he gave his estimate of the speed as fifty to sixty miles per hour without any testimony as to his experience with automobiles to show his qualifications to judge it. However, on cross-examination this estimate was repeated and the witness's experience and qualification shown to be that he had driven several different kinds of automobiles and trucks and that he had himself driven them from fifty to sixty miles per hour. We hold that sufficient experience was thus shown to make his testimony as to speed substantial evidence, the weight of which was for the jury. The distance which the brakes dragged the wheels on the pavement and the violence of the crash thereafter was also some evidence of high speed. There was no error in submitting this charge of negligence.

Defendant also assigns as error the action of the court in refusing to strike out an answer of the filling station operator in which he stated his opinion that defendant's truck made the skid marks, which he testified he saw, and also in permitting the constable to testify concerning these skid marks. On direct examination the filling station operator started to say that the skid marks were made by the truck, but upon objection plaintiff's counsel withdrew the testimony and the court ordered it stricken out and admonished the witness "to tell what he saw without giving any of his conclusions." On cross-examination, the witness was questioned further about these marks and testified that they were marks like a wheel skidding would make and that he knew by his own experience that skidding wheels made that kind of a mark. Thereafter, the cross-examination continued as follows:

"Q. Of course, you didn't see this truck when it first started to make that mark, if it did make it? A. Oh, no, sir. Q. You don't...