Mckenzie v. Randolph

• Decision Date: 07 March 1922
• Docket Number: No. 16927.,16927.
• Parties: McKENZIE v. RANDOLPH
• Court: Missouri Court of Appeals

238 S.W. 828

McKENZIE v. RANDOLPH

No. 16927.

St. Louis Court of Appeals. Missouri.

March 7, 1922.

Appeal from Cape Girardeau. Court of Common Pleas; John A. Snider, Judge. "Not to be officially published."

Action by W. C. McKenzie against D. Randolph. Verdict and judgment for plaintiff for actual and punitive damages, and the defendant appeals. Reversed and remanded, and case certified to the Supreme Court.

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

W. L. Proffer, of Illmo, A. K. Spradling, of Cape Girardeau,. and Chas. M. Hay, of St. Louis, for respondent.

NIPPER, C.

This is an action for damages alleged to have been sustained by plaintiff when an automobile which he was operating was struck by one being operated by defendant, along a public road which runs from Fornfelt through Ancell in Scott county.

The negligence set out in the petition is that, while plaintiff was operating his car at a rate of speed of about 8 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 6 miles an hour. He saw defendant's car approaching him about 2,000 feet away, and, while he was traveling about 300 feet, defendant's car traveled about 2,000 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.

Instruction No. 1, given for the plaintiff, is as follows:

"The court instructs the jury that if you find and believe from the evidence in this cause that on the 15th day of November, 1818, there was a public highway in the county of Scott, leading from the city of Fornfelt to the town of Ancell, in said county, and that plaintiff was the owner of an automobile and was driving said automobile on said public highway, and that defendant was the owner and was operating an automobile on said public highway, and if you further find and believe from the evidence that plaintiff and defendant were traveling in opposite directions about one-quarter of a mile west of Fornfelt on said public highway, 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 wad 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." (Italics ours.)

The jury returned a verdict in favor of plaintiff for both actual and punitive damages.

There are only two questions presented for our consideration by this appeal. It urged: First, that instruction No. 1 was erroneous, because it submitted facts to the jury not raised by either the pleadings or the evidence; and, second, that there is no evidence authorizing the submission of the question of punitive damages.

We will dispose of these questions in the inverse order. If defendant was driving his car on a dark and foggy night, along a public road 18 feet wide, at such a dangerous and reckless rate of speed as to indicate that such an accident as happened would be the natural and probable result of such wanton and reckless driving, under such circumstances as are detailed in plaintiff's evidence, then it would not be error to submit the question of punitive damages to the jury. In Reel v. Consolidated Investment Co., 236 S. W. 43, loc. cit. 46, our Supreme Court said:

"Ordinarily such damages are not recoverable in actions for negligence, because negligence, a mere omission of the duty to exercise care, is the antithesis of willful or intentional conduct. Raming v. Railroad, 157 Mo. 477, 57 S. W. 268; Bindbeutal v. Railway, 43 Mo. App. 463. 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. McNamara v. Transit Co., 182 Mo. 676, 81 S. W. 880, 66 R. A. 486; Railroad v. Arms, 91 U. S. 489, 23 L. Ed. 374. Or, there may be conscious negligence tantamount to intentional wrongdoing, as where the person doing the act or failing to act must be conscious of his conduct, and, though having no specific intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally or probably result in injury."

The other error urged by defendant presents a more serious question. That part of the instruction italicized, which submitted to the jury the question of defendant's failure to sound his horn or other signal device, submitted a question to which no reference is made, either in the pleadings or the evidence. There is no statement in the petition which could possibly be distorted into an Inferential allegation that defendant failed to sound his horn or other signal device; neither is there the slightest proof of such fact, or any reference thereto in any of the evidence. Plaintiff argues here that, as the instruction was not in the disjunctive, but in addition to that fact the jury must find all the other facts necessary to a recovery, this requirement relative to the sounding of the horn or other signal device should be treated as surplusage and harmless error because it only required plaintiff to assume an additional burden which was not necessary.

Plaintiff is not without some authority to sustain him. The case of McIntyre v. St. Louis & San Francisco Ry. Co. (Mo. Sup.) 227 S. W. 1047, loc. cit. 1052, lends some weight to plaintiff's contention. However, it appears in that case that the acts of negligence submitted by the instructions were alleged, inferentially at least, in the petition. It is a well-established rule of law in this state that the instructions cannot be broader than the...