McDaniel v. Lovelace, s. 53574

• Decision Date: 14 April 1969
• Docket Number: No. 1,53575,Nos. 53574,s. 53574,1
• Parties: Gail Frances McDANIEL and Patricia Ann McDaniel, Minors, by Pearl M. Eisnogle, Next Friend, Plaintiffs-Appellants, v. Nettie LOVELACE, Administratrix of the Estate of Clayton Thomas Lovelace, Joe Ray, Inc., a Corporation, and Douglas Wayne Clemons, Defendants-Respondents. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a Corporation, Plaintiff-Respondent, v. WESTERN CASUALTY AND SURETY COMPANY, a Corporation, et al., Defendants, Gail Frances McDaniel and Patricia Ann McDaniel, Minors, Defendants-Appellants
• Court: Missouri Supreme Court

Page 906

439 S.W.2d 906

Gail Frances McDANIEL and Patricia Ann McDaniel, Minors, by

Pearl M. Eisnogle, Next Friend, Plaintiffs-Appellants, v. Nettie LOVELACE, Administratrix of the Estate of Clayton

Thomas Lovelace, Joe Ray, Inc., a Corporation, and

Douglas Wayne Clemons, Defendants-Respondents.

The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a Corporation, Plaintiff-Respondent, v. WESTERN CASUALTY AND SURETY COMPANY, a Corporation, et al., Defendants, Gail Frances McDaniel and Patricia Ann McDaniel, Minors,

Defendants-Appellants.

Nos. 53574, 53575.

Supreme Court of Missouri, Division No. 1.

April 14, 1969.

Pannell & Dodson, Festus, for appellants.

Smith & Colson, by David L. Colson, Farmington, for defendants-respondents, Joe Ray, Inc. and Douglas Wayne Clemons.

G. William Weier, Dearing, Richeson, Weier, Roberts & Wegmann, Hillsboro, for defendant-respondents, The Fidelity and Casualty Company of New York and Nettie Lovelace, Administratrix of the Estate of Clayton Thomas Lovelace, Deceased.

LAURANCE M. HYDE, Special Commissioner.

These two appeals were consolidated for hearing by order of this court. The first is an action for $25,000.00 by two minor plaintiffs for wrongful death of their father in a collision between a car and a tractor trailer truck, in which verdict and judgment was for defendants. The second is from an order overruling a motion by these minors to declare null and void the judgment in a declaratory judgment action, which determined that their father, John McDaniel, Jr., was the driver of the car involved in the collision.

Plaintiffs filed the wrongful death action December 15, 1958, against the truck driver Clemons and truck owner Joe Ray, Inc. and the administratrix of the owner of the car, Nettie Lovelace. (The car owner Lovelace was also killed in the collision.) The insurer of the car owner (The Fidelity and Casualty Company of New York) had previously brought a declaratory judgment action to determine who was driving the car and fix the insurer's liability. On January 22, 1959, by judgment, based on a jury verdict, plaintiffs' father (McDaniel) was declared to be the driver at the time of the collision. The declaratory judgment was affirmed as to this finding by the St. Louis Court of Appeals in December 1960. Fidelity and Casualty Co. of New York v. Western Casualty and Surety Co., 337 S.W.2d 566. Thereafter, the trial court dismissed the wrongful death action as to the administratrix of the owner of the car. It is this declaratory judgment that plaintiffs seek to set aside on the ground that no guardian ad litem was appointed for them in that action.

McDaniel and the other two occupants of the car were killed when their car, going south, made a left turn in front of the truck, going north. The highway there was slightly upgrade to the north and had two northbound lanes and two southbound lanes with traffic islands between them in three places between the gasoline station complex (into which the car was turning) and the top of the hill. For other facts see opinion of St. Louis Court of Appeals in Fidelity and Casualty Co. of New York v. Western Casualty and Surety Co., 337 S.W.2d l.c. 568, 573.

Plaintiffs seek reversal of the judgment against them in the wrongful death action on three grounds: (1) that they were deprived of the right to try their case against the administrator of the car owner Lovelace, whom they claim was driving the car, because of the declaratory judgment which they claim was void; (2) that the court erred in refusing to grant them a new trial on misconduct of jurors; (3) that the court erred in refusing them the right to amend their petition and striking three paragraphs of their amended petition. We will consider these in inverse order.

Plaintiffs' petition, by their grandmother as next friend filed December 15, 1958, alleged as the truck driver's negligence: (1) humanitarian negligence based on failure to stop, slacken speed, swerve to the left or sound warning after McDaniel was in a position of imminent peril; (2) primary negligence of not keeping proper lookout and operating at a dangerous rate of speed. On June 29, 1967, amendment of plaintiffs' petition was sought to include the following claims of negligence:

'f. That the defendant, Joe Ray, Inc., a corporation, wrongfully allowed its driver to operate defendant's truck for a longer period of time than permitted by Federal Regulations.

'g. That the defendant, Douglas Wayne Clemons, wrongfully drove said truck for a longer period of time than permitted by Federal Regulations.

'h. That the defendant corporation and defendant driver wrongfully and in violation of Federal Regulations failed to make and keep a driver's daily log.'

Defendants' motion to strike these additional claims of negligence was sustained on the basis that the amendment attempted to set up a new and different cause of action after the limitation period for commencing wrongful death actions fixed by Sec. 537.100 RSMo, V.A.M.S. Plaintiffs' original petition was based on a claim of common law negligence while the amendment is based on a claim of violation of Federal regulations. Furthermore, the liability of the truck owner was based (in the original petition) on respondeat superior, liability for its employee's acts, while the basis of the amendments was liability for its own acts of violation of Federal regulations. 'The general rule is that an amendment will not relate back to the filing of the original petition and save a cause of action from the bar of the statute of limitations 'if the proof necessary to support the pleading as amended is different from the proof necessary to support the same pleading before such amendment. '' Miller v. Werner, Mo.Sup., 431 S.W.2d 116, 118. See also Coleman v. Ziegler, Mo.Sup., 248 S.W.2d 610, 615 and cases cited. 34 Am.Jur. 216, Limitation of Actions, Sec. 262; 54 C.J.S. Limitations of Actions § 281, p. 335. Plaintiffs cite Bailey v. Williams, Mo.Sup., 326 S.W.2d 115, 119--120, holding the rule against departure was abrogated by Sec. 509.060, RSMo 1949, V.A.M.S., now Civil Rule 55.07, and says this supersedes the authorities cited by defendants. However, there was no limitations issue in Bailey v. Williams, supra, it not being claimed that any limitations statute had run when the amended petition in that case was filed. Miller v. Werner, supra, was adopted thereafter and we note both the Bailey and Coleman opinions were written by Judge Dalton. There is no conflict between them and we hold the trial court properly struck the amendment to add the new grounds to plaintiffs' petition.

Plaintiffs' claim of misconduct of jurors is that Mrs. Wegmann, a juror, asked her husband for information about the use of brakes (handbrake and footbrake) on trucks, told members of the jury about his opinions and that these jurors did not report this to the court. The basis for this claim is a conversation plaintiffs' mother had with Mrs. Wegmann about two weeks after the trial, in which she said Mrs. Wegmann told her that her husband had said 'the driver should have applied the hand brake.' At the hearing on plaintiffs' motion for new trial, Mrs. Wegmann testified her husband told her just the opposite, namely: 'he couldn't have stopped any faster by using two brakes, because he said, the hand brake was used only to keep from jackknifing.' At this hearing, the court permitted testimony of other jurors about this but they were uncertain as to what Mrs. Wegmann had said in the jury room. Our decisions have uniformly held that 'a 'juror will not be heard to impeach' his and the jury's verdict, either as to conduct inside or outside the jury room, either before or after their discharge,' and that 'testimony of third persons as to statements of jurors tending to impeach their verdict are inadmissible, not only as hearsay but also for the same reason which excludes the affidavits or testimony of the jurors themselves.' State v. Ferguson, 353 Mo. 46, 182 S.W.2d 38, 45; see also Romandel v. Kansas City Public Service Co., Mo.Sup., 254 S.W.2d 585, 595; Davis v. Kansas City Public Service Co., 361 Mo. 168, 233 S.W.2d 669, 676; see also Missouri citations 8 Wigmore on Evidence 707 and in 58 A.L.R.2d 561 annotation.

Plaintiffs cite Middleton v. Kansas City Public Service Co., 348 Mo. 107, 152 S.W.2d 154. In that case, a juror went to used car lots to measure the height of fenders of the same model of an automobile involved in a collision with a streetcar, on which the plaintiff in that case was a passenger. However, the evidence of his activity came from persons employed at one of the used car lots and not from jurors. As stated in Easley v. Missouri Pac. Ry. Co., 113 Mo. 236, 20 S.W. 1073: 'Jurors are not permitted to impeach...