Mcckenzie v. Randolph

• Decision Date: 29 December 1923
• Docket Number: No. 23636.,23636.
• Citation: 257 S.W. 126
• Parties: McKENZIE v. RANDOLPH
• Court: Missouri Supreme Court

257 S.W. 126

McKENZIE v. RANDOLPH

No. 23636.

Supreme Court of Missouri, Division No. 2.

December 29, 1923.

Case Certified from St. Louis Court of Appeals.

Action by W. C. McKenzie against D. Randolph. Judgment for plaintiff in the justice court was affirmed by the Cape Girardeau court of common pleas, which the St. Louis Court of Appeals reversed (238 S. W. 828) and remanded, and the case was certified to the Supreme Court. Zudgment of court of common pleas affirmed.

J. H. Hale, of Chaffee, and Gallivan & Finch, of New Madrid, for appellant.

W. L. Proffer, of Illmo, and A. M. Spradling, of Cape Girardeau, for respondent.

HIGBEE, C.

Plaintiff sued the defendant before a justice of the peace in Scott county for damages resulting from a collision between the automobiles of the plaintiff and defendant on a public road in said county, between 6 and 7 p. m., on November 15, 1918. He recovered judgment from which the defendant appealed, and thereafter, on the application of the defendant, the venue was changed to the Cape Girardeau court of common pleas, where plaintiff recovered judgment for $25 actual and $75 punitive damages. The St. Louis Court of Appeals reversed and remanded the judgment for an error in plaintiff's instruction number 1. Judge Becker deeming the decision contrary to the opinion of this court in McIntyre v. St. Louis, etc., Railway Co., 286 Mo. 234, 227 S. W. 1047, on his request, the case was certified to this court. The facts are fully seated in the majority opinion by Nipper, C., 238 S. W. 828:

"The negligence set out in the petition is that, while plaintiff was operating his car at a rate of speed of about six miles per hour, along such public road, and at the right of the center of the road, and with his lights burning, defendant's car was being driven in the opposite direction at a very high rate of speed, to wit, 30 or 35 miles per hour, on a rock road about 18 or 20 feet wide, and that defendant while driving at such a high rate of speed, and failing to keep a proper lookout for others, so recklessly, carelessly, and with such gross negligence and wanton disregard for the safety of plaintiff on said public highway, so operated, drove, and controlled said car that it struck plaintiff's car with such terrific force that defendant's car tore off the left front wheel of plaintiff's car and turned said car around in the road almost facing west.'

"The evidence offered on the part of plaintiff was that, while he was driving along this public road in his automobile, he was traveling near the right edge of the road, at a rate of speed of about six miles an hour. He saw defendant's car approaching him about two thousand feet away, and while he was traveling about three hundred feet, defendant's car traveled about two thousand feet. The accident occurred between 6 and 7 o'clock in the evening of November 15, 1918. The night was very dark and foggy. Plaintiff does not undertake to fix the exact rate of speed at which defendant's car was being operated, but says it was coming at a very rapid rate. When his car was struck by defendant's car the steering wheel was jerked out of his hands, and the front wheel of his car torn off entirely.

"Defendant's evidence was that he was driving at a moderate rate of speed, and that plaintiff, when he got near him, turned his car to the center of the road, and ran against defendant's car, thereby causing the injury.

"Plaintiff testified that, immediately after the injury, defendant stated to him that he did not see him, and asked him if his lights were burning, at which time he stated to defendant that they were burning when he was struck, and were still burning."

Counsel for appellant insist that the trial court erred in giving plaintiff's instruction 1 because it submitted an issue not raised either by the pleadings or the evidence, and that the court also erred in giving instruction 5 authorizing the recovery of punitive damages.

1. Plaintiff testified that he was driving his car at about six miles per hour along and near to the right side of the road; that his lights were on; that defendant's car, running at a high rate of speed in an opposite direction, collided with plaintiff's car, broke off the left front wheel, etc. The night was dark and foggy. According to plaintiff's evidence, the defendant must have been driving recklessly and to the left of the middle of the road, a flagrant violation of the rules of the road. Section 7586, R. S. 1919. "But an act or omission, though properly characterized as negligent, may manifest such reckless indifference to the rights of others that the law will imply that an injury resulting from it was intentionally inflicted." Reel v. Consolidated Investment Co. (Mo. Sup.) 236 S. W. 43, 46. There was no error in giving plaintiff's instruction number 5.

2. Plaintiff's instruction No. 1 is copied in the opinion of the Court of Appeals. It reads, in part:

"* * * And that when plaintiff saw defendant approaching him, he turned his automobile to the right of the center of said highway, and that defendant, without sounding his horn or other signal device and at a dangerous and excessive rate of speed, carelessly and negligently drove his said automobile into the automobile of the plaintiff, breaking off the front left wheel and otherwise damaging plaintiff's car, then your verdict should be for the plaintiff."

Appellant complains that the italicized clause "broadens the issues and submits facts not raised by the evidence or the pleadings."

Plaintiff's statement, or petition as it is called, did not complain of the failure of the defendant to sound the horn...