Mendenhall v. Neyer

• Decision Date: 03 April 1941
• Docket Number: 36666
• Parties: Birttie Mendenhall v. C. A. Neyer and J. J. Griesemer, Copartners, doing business as Neyer Construction Company, and Virgil Lawrence, Appellants
• Court: Missouri Supreme Court

149 S.W.2d 366

347 Mo. 881

Birttie Mendenhall v. C. A. Neyer and J. J. Griesemer, Copartners, doing business as Neyer Construction Company, and Virgil Lawrence, Appellants

No. 36666

Supreme Court of Missouri

April 3, 1941

Appeal from Lawrence Circuit Court; Hon. Emory E. Smith Judge.

Order granting new trial set aside and the cause remanded (with directions to reinstate the verdict and enter judgment thereon).

G A. Hodgman, Richard K. McPherson and A. P. Stone Jr., for appellants.

(1) Defendants' Instruction 8 was not erroneous. Koebel v. Tieman Coal & Material Co., 337 Mo. 561, 85 S.W.2d 525; Clark v. Reising, 341 Mo. 282, 107 S.W.2d 36. (2) Defendants' Instruction 10 was not erroneous. Williams v. Guyot, 126 S.W.2d 1140; Gardner v Turk, 123 S.W.2d 161; Heibel v. Ahrens, 55 S.W.2d 473; Griffith v. Continental Cas. Co., 299 Mo. 426, 253 S.W. 1047. (3) Defendants' Instruction 12 was not erroneous. Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 742; State ex rel. Snider v. Shain, 137 S.W.2d 531; Cooper v. Kansas City Pub. Serv. Co., 116 S.W.2d 214.

Homer A. Cope, Cope & Hadsell, McPherson & Stemmons and Walter A. Raymond for respondent.

(1) Defendant's Instruction 8 was erroneous. The trial court properly assigned that as one of the grounds for granting plaintiff a new trial. Unterlachner v. Wells, 317 Mo. 181, 178 S.W. 82; Ryan v. Burrow, 326 Mo. 896, 33 S.W.2d 929; Eisenbarth v. Powell Bros. Truck Lines, 125 S.W.2d 904; State ex rel. Powell Bros. Truck Lines v. Hostetter, 137 S.W.2d 464; Clapper v. Lakin, 343 Mo. 710, 123 S.W.2d 33; Williams v. Guyot, 344 Mo. 372, 126 S.W.2d 1143. (2) The trial court also properly sustained plaintiff's motion for a new trial because of error in giving defendant's Instruction 10. Reynolds v. Maryland Cas. Co., 274 Mo. 83, 201 S.W. 1133; Lampe v. Franklin Amer. Trust Co., 339 Mo. 361, 96 S.W.2d 719. (3) The trial court also properly sustained plaintiff's motion for a new trial because of error in giving defendant's Instruction 12. Peppers v. St. L.-S. F. Ry. Co., 316 Mo. 1104, 295 S.W. 760; McGrath v. Meyers, 341 Mo. 412, 107 S.W.2d 795; Brown v. Alton Ry. Co., 132 S.W.2d 730; Thompson v. St. L.-S. F. Ry. Co., 334 Mo. 958, 69 S.W.2d 946; Boland v. St. L.-S. F. Ry. Co., 284 S.W. 144; Smith v. St. L.-S. F. Ry. Co., 321 Mo. 105, 9 S.W.2d 945; Decker v. Liberty, 39 S.W.2d 548; Crowley v. Worthington, 71 S.W.2d 745. (4) The trial court is vested with a certain amount of discretion in granting a new trial because he believes the instructions are misleading, and absent an abuse of such discretion, this court is not justified in interfering. Strother v. Sieben, 220 Mo.App. 1027, 282 S.W. 506; Wells v. City of Jefferson; 132 S.W.2d 1099; Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 153; Conroy v. St. Joseph Ry., L., H. & P. Co., 134 S.W.2d 96; Arnold v. Alton Ry. Co., 343 Mo. 1049, 124 S.W.2d 1095.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

C. A. Neyer and J. J. Griesemer, copartners, doing business as Neyer Construction Company, and Virgil Lawrence, defendants below, appeal from an order sustaining Birttie Mendenhall's, plaintiff below, motion for new trial. The court granted the new trial on the ground error had been committed in giving instructions Nos. 8, 10 and 12 on behalf of said appellants. Respondent seeks $ 10,000 for the alleged wrongful death of Amos Mendenhall, her husband.

Mr. and Mrs. Mendenhall and five children, including Oscar, a minor of eighteen, and Irva, an adult, lived on a farm near Cedar Grove, Missouri. Oscar had been having "some kind of fits," was not in good health, and, on the day of the accident, viz., October 12, 1936, Mr. Mendenhall went to Houston, Missouri, taking Oscar and Irva with him, to see some of the county officials about securing medical treatment for Oscar. They traveled in Mr. Mendenhall's old Chevrolet truck. On the return trip, Irva was driving; Oscar was on the seat with him; and Mr. Mendenhall rode in the rear of the truck with his back towards the back of the seat. They proceeded east along a gravel road to its intersection with highway No. 63, and intended to turn north thereon. Appellant Lawrence, an employee of appellants Neyer and Griesemer and engaged in the performance of his duties as such employee, was operating a six-ton International truck loaded with a road grader, weighing about six tons, south on highway No. 63. A "stop" sign, facing west, was located at the southwest corner of the intersection, approximately twelve or fifteen feet west of the pavement on highway No. 63. The two trucks collided on the intersection, about the center thereof. Oscar Mendenhall, the sole survivor of the persons in the Mendenhall truck, testified that his brother Irva stopped the Chevrolet truck opposite the "stop" sign. Lawrence testified that his view of the Chevrolet truck as it approached the intersection was obstructed; that it did not stop from the time he saw it, but moved slowly, three to five miles an hour; that he took his foot off the accelerator but did not apply the brakes, thinking the Chevrolet was going to stop; that, when he saw the operator of the Chevrolet rear back in his seat and look towards him, he was then about thirty-five feet away and then first thought something might be wrong and the Chevrolet was not going to stop; that he then applied his brakes and pulled to the east and the cars met near the center of the intersection. Two other eyewitnesses testified that the Chevrolet truck did not stop at the stop sign. If other facts are essential to a determination of the issues, they will be developed in the course of the opinion.

Respondent's main instruction submitted her case on grounds of primary negligence in the conjunctive in that appellant Lawrence was operating the International truck at excessive speed, failed to keep a lookout and operated the truck on his left hand side of the highway.

Instruction No. 8, given on behalf of appellants and vigorously attacked by respondent, read:

"The Court instructs the jury, that in deliberating upon this case, it is your duty to decide first whether or not under all of the facts and circumstances in evidence there is or is not any negligence upon the part of defendants, as submitted and defined by other instructions. Until this question of negligence has been determined by you, you have no right to consider the amount, if any, that plaintiff is entitled to recover.

"If the plaintiff is not entitled to recover, that is, if plaintiff has not shown to your reasonable satisfaction by the preponderance or greater weight of the credible evidence upon the question of negligence that she should recover at your hands, then in your deliberations you should not and must not consider to what extent, if any, plaintiff has been damaged by reason of the death of her husband.

"Neither passion, prejudice nor sympathy should influence you in any manner in deciding this case, for it is your sworn duty to try this case and to decide it according to the evidence and the instructions of the Court."

Respondent says the instruction was erroneous because it directed the order in which the jury should consider the evidence; constituted a lecture to the jury on their duty to defendant; placed the burden of disproving issues respecting contributory negligence and sole negligence on respondent, and, considered in connection with instruction No. 7, unnecessarily repeated that the burden of proof was on respondent.

Somewhat similar instructions are set out in Unterlachner v. Wells (Mo. Div. I), 278 S.W. 79, 82, 83[6], and Ryan v. Burrow (Div. II), 326 Mo. 896, 898, 33 S.W.2d 928[1]. Each of said cases was an action for personal injuries suffered by the plaintiff. The instructions in the Unterlachner and Ryan cases, as did the instant instruction, informed the jury that they should first determine whether defendant was liable but thereafter, differing materially from the instant instruction, provided (quoting from the instruction in the Ryan case): "Until this question of liability has been determined by you, you have no right to take into consideration the nature, character or extent of the alleged injuries to the plaintiff, of [or] the amount, if any, that the plaintiff is entitled to recover by reason of such injuries, if any. If the plaintiff is not entitled to recover, . . . then you should not and must not in your deliberation, consider to what extent, if any, he has been injured. You should not be influenced, by the nature and extent of plaintiff's injuries in deciding whether or not defendants are liable for said injuries as explained to you in these instructions."

We think it evident from a study of the Ryan case (and the cases there cited) that the determinative factor of the ruling was that, under the record in that case, we were "not prepared to say that the nature, character, and extent of plaintiff's injuries were not circumstances which might be considered by the jury along with all other facts and circumstances in determining the issue of negligence." The Ryan case explicitly stated like reasoning under the facts in Stolovey v. Fleming (Div. I), 320 Mo. 946, 8 S.W.2d 832, 833[4, 5], applied, and was sufficient to condemn the instruction.

Birttie Mendenhall seeks damages measured by the pecuniary loss occasioned her by Amos Mendenhall's death, which differs materially from the measure of damages in a personal injury action. Other than the undisputed fact of death, the record is silent as to the injuries received by Amos Mendenhall. Furthermore, the instant instruction, had there been testimony of record with respect to said injuries, did not preclude the jury from considering such testimony in determining the issue of appellants'...