McComb v. Vaughn

• Decision Date: 07 January 1949
• Docket Number: 40867
• Citation: 218 S.W.2d 548,358 Mo. 951
• Parties: Lagatha McComb, Mildred Guinn McComb, an Infant, by Weldon J. McComb, Next Friend, and Weldon J. McComb, Respondents, v. C. Arthur Vaughn, Appellant
• Court: Missouri Supreme Court

218 S.W.2d 548

358 Mo. 951

Lagatha McComb, Mildred Guinn McComb, an Infant, by Weldon J. McComb, Next Friend, and Weldon J. McComb, Respondents, v. C. Arthur Vaughn, Appellant

No. 40867

Supreme Court of Missouri

January 7, 1949

Rehearing Denied March 14, 1949.

Appeal from Dunklin Circuit Court; Hon. James V. Billings Judge.

Affirmed.

Jones & Jones for appellant.

(1) The trial court erred in refusing to permit the defendant in opening statement to the jury to advise the jury that included in the evidence which defendant would offer would be a statement made by the deceased, Robert L. McComb, just a short time before he was killed in a conversation with Otis Ward in which the deceased, Robert L. McComb, stated that he had come from Gideon on a motorcycle without any lights, and that it blinded him to meet a car, and that he couldn't tell where the road or anything else was. The court also erred in refusing to permit Otis Ward, a witness for the defendant to testify as to the statement made by Robert L McComb above referred to. Sec. 3653, R.S. 1939; Wills v. Berberich's Delivery Co., 98 S.W.2d 569, 339 Mo. 856; Edwards v. Ethyl Gasoline Corp., 112 S.W.2d 555, 342 Mo. 98; Nanney v. I. H. Shell & Son, 138 S.W.2d 717; Nelson v. Wabash Railroad, 194 S.W.2d l.c. 729; Kuether v. Kansas City L. & P. Co., 276 S.W. 105, 220 Mo.App. 452; Waddell v. Waddell, 87 Mo.App. l.c. 219; Anderson v. McPike 86 Mo. l.c. 299; Stewart v. Glen, Admr., 58 Mo. l.c. 487; Wynn v. Cory, 48 Mo. l.c. 348; Haynes v. Trenton, 123 Mo. l.c. 333, 27 S.W. 622; Hovey v. See, 191 S.W. 606; Reed v. Philpots' Admr., 31 S.W.2d 709; Helman v. Ry. Co., 58 Ohio St. 400, 41 L.R.A. 860; Georgia R.R. & Banking Co., v. Fitzgerald, 108 Ga. 507; 32 C.J.S., sec. 403, p. 19; 22 C.J., Sec. 535, pp. 446, 448, 450, secs. 539; p. 450; Secs. 546, 548, p. 458.

Bloodworth & Bloodworth and Tedrick & Tedrick for respondents.

(1) The alleged statement was immaterial and it is never error to exclude immaterial evidence. (2) The plaintiff, Lagatha McComb's cause of action did not descend to her from her husband; neither was it derived from him or transmitted to her by his death, but it was a new cause of action given her by statute. State ex rel. Thomas v. Davis, 283 S.W. 51; Nanney v. I. H. Shell & Son, 138 S.W.2d 717; Jordan v. St. Joseph Railway L., H. & P. Co., 73 S.W.2d 205; Cummins v. Kansas City Pub. Serv. Co., 66 S.W.2d 920; Polk v. Krenning, 2 S.W.2d 107; Murray v. St. Louis, I.M. & S. Ry, Co., 159 Ark. 92; Dowell v. City of Raleight, 91 S.E. 849; State ex rel. Massman v. Bland, 194 S.W.2d 42. (3) Even if the statement were admissible against the plaintiff, Lagatha McComb (which the plaintiff strenuously denies), it was not admissible against the other two plaintiffs in the case. (4) There was no improper consideration of the question of insurance on the part of the jury.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Appeal from judgments for plaintiffs in an action for damages.

The three plaintiffs joined their several claims (Section 16, Civil Code of Missouri, Laws of Missouri, 1943, p. 360, Mo. R.S.A. § 847.16) arising out of a collision of a Harley-Davidson motorcycle, 1938 model, and a "Diamond T" one-ton truck owned and operated by defendant on an east-west gravel highway (County Highway F) in southwest Dunklin County. Plaintiff, Lagatha McComb, stated a claim for the wrongful death of her husband, Robert L. McComb, who was operating the motorcycle and who was fatally injured in the collision. A judgment was rendered upon a verdict for $ 9000 in favor of the widow, Lagatha. Plaintiff, Mildred Guinn McComb, joined as a plaintiff and stated a claim for personal injury sustained in the collision. She, a sister of deceased, was riding behind him on the motorcycle when the tragedy occurred. Judgment was rendered upon a verdict of $ 750 in favor of Mildred Guinn. And a judgment for $ 250 was rendered upon verdict in favor of Weldon J. McComb upon his joined claim for property damage. He, a brother of deceased and of Mildred Guinn, was the owner of the motorcycle involved. The judgment appealed from, for a sum in excess of $ 7500, in favor of plaintiff Lagatha vests this court with appellate jurisdiction of the case. Section 3, Article V, Constitution of Missouri, 1945.

Defendant-appellant, C. Arthur Vaughn, has assigned errors of the trial court in excluding evidence proffered by defendant, and in refusing to grant a new trial on the assigned ground "of the jury's improper consideration of the question of insurance."

The plaintiffs' causes were submitted to the jury on primary negligence of defendant in turning his truck "to the left and immediately in front of the motorcycle operated by the said Robert L. McComb so the said Robert L. McComb could not avoid a collision with said truck." Defendant in answer to the several claims had alleged and the trial court submitted the negligence of deceased and of the sister, plaintiff Mildred Guinn, in operating and riding on the motorcycle without lights, or "adequate and sufficient lights," as contributing and sole causes of the collision with resulting fatal injury to Robert, personal injury to Mildred Guinn, and property damage to plaintiff Weldon's motorcycle.

The collision occurred at about 7:43 o'clock the evening of October 14, 1946. It was "good dark."

Evidence was introduced tending to show that deceased, riding the motorcycle, passed through Cardwell at about 7:00 o'clock. It is asserted by defendant that, while at Cardwell, deceased made a statement to one Otis Ward relating to the lights on the motorcycle, which statement is more fully set out infra. Defendant offered testimony tending to prove the asserted declaration, and upon plaintiffs' objection the testimony was excluded by the trial court -- this ruling, defendant says, was error.

Upon leaving Cardwell deceased rode the motorcycle to the home of his father, three and a half miles southwest of Cardwell and a half mile west of the scene of the subsequent collision. He ate supper at his father's home and, about 7:30 o'clock, he and his sister Mildred Guinn decided to go to Herod's store, approximately a mile to the eastward, to get some motor oil. They used the motorcycle, Mildred Guinn riding behind her brother. They moved eastwardly on the right (south) side of County Highway F. Defendant's truck was moving westwardly on the same highway. Mildred Guinn testified, "It was dark and we had on the bright lights." When the motorcycle approached the scene of the collision defendant's truck started to turn left into a little dirt road. Mildred Guinn saw the lights (of the truck) make a turn. The motorcycle was then 20 or 25 feet away.

The motorcycle collided with the right-hand side of the truck "in back of the cab."

Defendant testified that, when approaching the scene of the collision, the lights on his truck were in good working order and burning "on dim." Defendant and his brother, P. E. Vaughn; and the brother's two sons, Eulus and Gene, were all seated in the cab of the truck. Defendant was driving; his brother sat in the middle; and Eulus was sitting on the outside holding Gene in his lap. P. E. Vaughn testified he had been watching the road ahead. The first time he saw any indication of any approaching traffic was when the defendant's truck turned to the left; he then saw the motorcycle when it "was just about twenty feet" away. He exclaimed, "Hold it," and then it hit. "I didn't know what hit us until I got out and saw what it was." Defendant testified the first warning he had of an approaching vehicle was when his brother said, "Hold it," and the impact of the collision occurred in "just a very little time at all."

The truck came to a stop on the left (south) side of the road "facing" at about a 45 degree angle to the southwestward, "the whole truck was on the left-hand side of the gravel highway." Several witnesses testified no lights were burning on the motorcycle after the collision. Plaintiff, Weldon J. McComb, testified the fender or mudguard of the motorcycle "was pushed up (by the collision) and had pushed it (the motorcycle's headlight) to one side and that caused it to ground out. . . . I beat the fender and horn down and the light burned."

As mentioned supra, defendant offered to prove by one Otis Ward that he had talked with deceased in Cardwell the evening of October 14th at approximately 7:00 o'clock; that Robert made the statement he had come from Gideon that night on the motorcycle "without any lights on it"; and when "he met on-coming vehicles that it blinded him to the extent that he couldn't see the road or anything else." Plaintiffs' counsel objected to the proffer "as being hearsay and not binding on any of the plaintiffs." The trial court excluded the testimony "as not being made by any party of interest herein and is not against interest and is hearsay." And, as we have said, error is assigned in the exclusion of the proffered testimony.

Defendant-appellant argues that, since the claim of Lagatha was for the wrongful death of her husband under the provisions of the compensatory section of the Wrongful Death Act, Section 3653 R.S. 1939, Mo. R.S.A. § 3653, Lagatha derives her cause of action from whatever cause of action Robert would have had and upon which he could have recovered "if death had not ensued." Appellant says it is clear that any evidence that would be competent against deceased had he survived is competent against plaintiff Lagatha in her action for his wrongful death; and appellant further contends the statement of deceased was admissible under the res gestae rule.

In endeavoring to determine the correctness of the trial court's ruling we notice some differences between an...