Martin v. Lingle Refrigeration Co., 43284

• Decision Date: 13 July 1953
• Docket Number: No. 2,No. 43284,43284,2
• Citation: 260 S.W.2d 562
• Parties: MARTIN v. LINGLE REFRIGERATION CO. et al
• Court: Missouri Supreme Court

Page 562

260 S.W.2d 562

MARTIN v. LINGLE REFRIGERATION CO. et al.

No. 43284.

Supreme Court of Missouri, Division No. 2.

July 13, 1953.

Rehearing Denied Sept. 14, 1953.

Herbert Van Fleet, Joplin, Mo., Henry I. Eager, Richard G. Poland, Kansas City, Mo., Seiler, Blanchard & Van Fleet, Joplin, Blackmar, Newkirk, Eager, Swanson & Midgley, Kansas City, of counsel, for appellant-respondent.

Paul C. Sprinkle, William F. Knowles, Roy F. Carter, Sprinkle, Knowles & Carter, Kansas City, for defendant-appellants.

J. D. James, Alvin C. Randall, Hogsett, Depping, Houts & James, Kansas City, for respondents.

WESTHUES, Commissioner.

Plaintiff Martin filed this suit against Lingle Refrigeration Company, a corporation, Ernestine Wallace, Andrew Wallace, E. L. Morgans, and David Richerson to recover damages for personal injuries alleged to have been sustained in a collision involving a Dodge car, driven by Martin, a Nash car, driven by defendant Ernestine Wallace, and a truck, driven by David Richerson. The case was dismissed as to Andrew Wallace, husband of Ernestine, who had been named as a defendant. Prior to this dismissal, Andrew Wallace had filed a claim against Morgans and Richerson to recover damages for the loss of services of his wife and for medical expenses incurred in treating the wife's injuries alleged to have been sustained in the collision. A trial resulted in a verdict in plaintiff's favor in the sum of $12,000 against E. L. Morgans, owner of the truck, and David Richerson, the driver. The jury also found for Andrew Wallace on his claim against Morgans and Richerson in the sum of $2,000. The jury returned a verdict in favor of Lingle Refrigeration Company and Ernestine Wallace and against plaintiff Martin on his claim against these two defendants.

Plaintiff Martin appealed from the judgment in favor of the Refrigeration Company and Ernestine Wallace. Morgans and Richerson appealed from the judgments in favor of Martin and Andrew Wallace.

It was admitted that at the time of the collision, Richerson was driving a truck owned by the defendant Morgans and was using the truck as Morgans' employee. It was also admitted that defendant Ernestine Wallace was driving a Nash car which she owned and that she and her husband, Andrew Wallace, were at the time of the collision engaged in their work on behalf of the defendant Lingle Refrigeration Company.

The evidence as to the collision disclosed the following: On the afternoon of December 13, 1949, at about one o'clock, plaintiff was driving south in his Dodge car on Highway 65 (a north-south highway), about 8 miles south of Buffalo, Missouri. Following plaintiff's car was defendant Richerson, driving a truck for Morgans; following the truck was defendant Ernestine Wallace and her husband in a Nash car. The highway at the point in question was practically level and straight. The day was clear and the concrete roadway, the width of an ordinary two-lane road, was dry. The shoulders of the road were slightly wet. The temperature was above freezing at the time.

Plaintiff testified that he was driving about 45 or 50 miles per hour and had maintained that speed for some miles. Defendant Richerson stated he was hauling lime for defendant Morgans and was at the time of the collision returning to Springfield with an empty truck; that he was driving about 50 miles per hour; that he caught up with plaintiff's car and intended to pass when traffic on the highway permitted. Defendant Ernestine Wallace testified that she caught up with the truck and saw the Dodge ahead of the truck; that the truck and the Dodge seemed to be traveling as a unit; that it was her intention to pass both vehicles when conditions permitted. It was admitted by all parties that at the time of the collision no other vehicles were in sight either north or south. Conditions on the highway were such that it seemed safe to pass.

We shall quote rather extensively from the record to demonstrate the sharp dispute as to how the collision occurred. Richerson, the driver of the truck, gave the following version:

'A. Well, as I recall it, we was traveling south on 65 and I had caughten up with the Dodge some, say, half mile back, and this Nash car had caughten up with me. In the meantime we were all three traveling along the highway. I kept observing this Nash car in the rear-vision mirror occasionally, just, you might say, glanced back and forth, watching both ends, and it didn't make any move to go around, and I wanted to be ahead because I didn't like to be in the center of the two, so I pulled out to go around. As I got out in the left-hand lane, in the east lane, and almost up to the Dodge, why, I glanced to the side again. There is the Nash on the shoulder and coming on around pretty fast, and I immediately applied my brakes and slackened up, throttled it down, to give the Nash room to get on around, then immediately cut right. After it got around, it cut back across the highway. I pulled back in the right-hand lane so I could see things on the right and then I pulled back to the left side to miss everything, and the accident happened; the Nash hit the Dodge and they overturned.

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'Q. (By Mr. Eager) Now, Mr. Richerson, did you see the Nash hit the rear and of the Dodge of Mr. Martin? A. I saw it come in contact with it, yes.

'Q. You saw it hit it somewhere? A. Yes, sir.

'Q. As the Nash came back on the highway at this forty-five degree angle, was it headed toward Mr. Martin's car? A. Yes, sir.

'Q. After it came on the highway at this angle, I want you to tell us whether you ever saw the Nash change its course any? A. I did not.

'Q. Then tell us whether or not the Nash, as it came back on the highway, proceeded in a direct course toward Mr. Martin's car until it hit it? A. It did.

'Q. At that time I will ask you whether or not Mr. Martin's car was entirely on its own side of the road, on the east side of the road? A. Yes, sir.

'Mr. Sprinkle: West side.

'Q. (By Mr. Eager) West side, on its own side? A. On the right-hand side of the road.'

Mrs. Wallace's testimony concerning the collision is summarized in the following:

'Q. All right. I wish you would just tell the jury in your own words, Mrs. Wallace, from there on how this accident happened, and speak loud enough so all can hear you. A. You mean from the time I started to pass?

'Q. From the time when you started to pass. A. As I stated, the truck and the car were driving close together, when I was about 75 feet behind, nothing coming toward me, clear, dry highway. I honked my horn to go around. The truck pulled out and immediately pulled back into its lane, and just as I came up even with him, he pulled directly right out, and there was nothing for me to do but take the shoulder.

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'Mr. James: Just tell us what you did. A. I honked. The truck pulled out and went back in its lane very definitely, and I came on. Just as I got even with him, he pulled right out and I went over to the shoulder. I partially lost control over the car. The shoulder was more or less damp because frost had been all over the ground, but I had control enough of the car to get it back on the highway. I got myself righted on to the highway and headed down, and an impact hit me from the back, which caused me to lose complete control. The next thing I knew, I woke up in the hospital.

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'Q. Mrs. Wallace, do you have any idea how far you ran on the left shoulder of the road? A. Between one hundred and two hundred feet.'

Defendant Richerson testified that he did not sound a warning before turning left to pass the Dodge car. He further testified that he did not hear any warning from the Nash car before he saw it on the shoulder of the roadway trying to pass his truck. Plaintiff testified he heard no warning before the collision. Mr. and Mrs. Wallace testified their Nash came in contact with the Dodge. Both cars overturned. The truck came to a stop on the left side of the road, partly in the ditch. The driver Richerson testified his truck did not come in contact with either car. The Wallaces stated the truck struck their car, the Nash, from the rear about the time the car was back onto the concrete slab. The evidence was that the speed of the Nash car was not changed very much after the driver started to pass the truck and the Dodge.

Plaintiff Martin has briefed only one point. He claims that the court erred in giving instruction I on behalf of defendants, Lingle Refrigeration Company and Mrs. Wallace.

Defenants Morgans and Richerson complain of the trial court's ruling denying their motion to require the production of an original statement given by defendant Wallace and her husband concerning the collision or to use a copy thereof for the purpose of impeachment. They also complain of the court's instructions 2, H, and Y. These defendants say further that the court erred in receiving the verdicts because they were not complete and did not dispose of all the issues; and that the verdict of $12,000 is excessive.

We shall first dispose of plaintiff's complaint as to instuction I. This instruction reads as follows:

'You are instructed that if you find and believe from the evidence that while Ernestine Wallace was in the act of passing the truck, if so, defendant Richerson turned the truck to the left and forced the Wallace automobile onto the shoulder, and that the defendant Ernestine Wallace, in the exercise of the highest degree of care, drove her car on to the shoulder in order to avoid a collision with the truck, and that she was not negligent, as submitted in other instructions, your verdict will be against the plaintiff as to defendants Ernestine Wallace and Lingle Refrigeration Company.'

Instruction 1 submitted plaintiff's case to the jury as against defendants Wallace and the Refrigeration Company on a number of charges of negligence not mentioned in instruction I. For example: that she failed after getting her car onto the...