Merrick v. Bridgeways, Inc.

Decision Date10 September 1951
Docket NumberNo. 42251,No. 2,42251,2
Citation362 Mo. 476,241 S.W.2d 1015
PartiesMERRICK v. BRIDGEWAYS, Inc. et al
CourtMissouri Supreme Court

Herbert E. Barnard, and Walther, Hecker, Walther & Barnard, all of St. Louis, for appellants.

Henry G. Morris, St. Louis, for respondent.

BARRETT, Commissioner.

In this action by Thomas E. Merrick against Bridgeways, Incorporated and C. A. Dougherty, the lessor and driver of a tractor-trailer truck to recover damages for negligent personal injury the jury returned a verdict for $11,000. The truck and Merrick's 1946 Plymouth sedan collided near the intersection of U. S. Highway 40 and Highway 127 in Illinois on the 23rd day of December, 1948, about six o'clock in the afternoon. Highway 40 is an east and west preferential highway and Highway 127 is a north and south highway. Merrick was traveling east on Highway 40 and the truck was traveling west and both drivers saw one another approaching the intersection when each vehicle was more than 1000 feet away from the intersection. They both also saw a 1936 Plymouth sedan, driven by Joe Roberg, stop on Highway 127 about thirty feet north of the north line of Highway 40 and its blinker lights and stop signs. After Roberg's car had been stopped a second or two, long enough to change gears, he drove south into the intersection and when his car lacked about four feet of passing over the center line of the highway the truck struck the left rear of his car, proceeded west on Highway 40 and struck Merrick's automobile. According to Merrick's evidence the truck traveled up to and through the intersection, without giving any warning signals, at an unreduced speed of fifty miles an hour and when about twenty feet from his car, and 200 feet west of the intersection, suddenly veered over to the left side of the highway and crashed almost head-on into his stopped automobile. According to Dougherty, he was traveling at a speed of about thirty-two miles an hour, reduced to twelve miles an hour by the time the truck collided with Merrick, and that Merrick did not stop and his automobile was struck when it was but fifteen to twenty feet from the intersection and not entirely in his traffic lane. The truck and Merrick's car stopped over 200 feet west of the intersection. The appellants' principal complaints upon this appeal concern the giving and refusal of instructions and the excessiveness of the verdict. There are, however, three preliminary questions which must be disposed of first.

Months after the suit had been instituted Bridgeways, Incorporated became bankrupt and two trustees were appointed to take charge of its affairs. A suggestion of bankruptcy was filed and it is now insisted that the court erred in forcing the defendants to trial without substituting the trustees as parties and in refusing to permit proof of bankruptcy. It does not appear as plainly as it should from the record just what procedure was followed. The United States District Court in Michigan had jurisdiction of the bankrupt and its property and could have enjoined or stayed any proceeding which sought to enforce a lien upon the debtor's property. 11 U.S.C.A. §§ 511, 516. However, the United States District Court could and undoubtedly did permit the prosecution of this action. Foust v. Munson S. S. Lines, 299 U.S. 77, 57 S.Ct. 90, 81 L.Ed. 49. It appears from the record that the original order in bankruptcy had been modified and appellants in their brief say, 'Of course, leave of the United States District Court had to be obtained to avoid a contempt order but having obtained such leave then plaintiff was free to move to substitute and to go ahead.' This action in no way interferes with any proceeding in bankruptcy, In re Adolf Gobel, Inc., 2 Cir., 89 F.2d 171, and it does not appear just how the appellants are prejudicially injured by the respondent's failure of substitute the trustees as parties. Hartough v. Safeway Lines, Inc., 288 Mich. 471, 285 N.W. 561; Van Heukelom v. Black Hawk Hotels Corp., 222 Iowa 1033, 270 N.W. 16. Whatever the future consequences to the plaintiff may be, substitution of parties was not compelled by the statute, Mo.R.S. 1949, Sec. 507.100, subd. 4, and it is not pointed out why the appellants should have been permitted to prove the bankruptcy or how they were prejudiced in this action by the court's refusal to permit the proof.

During the second day of the trial the court permitted the plaintiff to amend his petition by interlineation by adding an additional assignment of negligence. The defendants objected to the amendment and claimed surprise. It is now urged that the court erred in permitting the amendment which was not served upon them and which they say required a responsive pleading and an automatic continuance until they had time in which to meet the issue. It is not necessary to go into this assignment extensively or into the question of whether the amendment was to conform to the proof or whether it introduced an entirely new element into the case. The appellants did not request a continuance, Mo.R.S. 1949, Sec. 509.500, the plaintiff did not offer any instructions based upon the amendment and it is not made to appear how the appellants were misled or prejudiced by the amendment or that the court abused its discretion in permitting the amendment. Davis v. Kansas City Pub. Serv. Co., Mo.Sup., 233 S.W.2d 679, 683; White v. Sievers, 359 Mo. 145, 221 S.W.2d 118; Mo.R.S. 1949, Secs. 509.490, 509.500.

In the course of the trial plaintiff's counsel, as a part of his case in chief, read various sections of the Illinois statutes, from the Illinois Traffic Act, S.H.A. ch. 95 1/2, § 98 et seq., to the jury and it is now insisted that the trial court prejudicially erred in permitting counsel to read them. We are not concerned here with the reading of reported decisions or of lawbooks in general to the jury. Lewis v. Barnes, Mo.Sup., 220 S.W. 487; Barnett v. Sweringen, 77 Mo.App. 64. The court did not set forth any of the statutes in the instructions and leave it to the determination of the jury whether the statutes had been followed, Cieslinski v. Clark, Mo.App., 223 S.W.2d 139, and we are not concerned here with the problem of the court's duty in instructing the jury upon the law. Slaughter v. Metropolitan Street Ry. Co., 116 Mo. 269, 23 S.W. 760; White v. Reitz, 129 Mo.App. 307, 108 S.W. 601; Cobb v. Griffith &amp Adams Sand, Gravel & Transportation Co., 87 Mo. 90. There is no complaint under this allegation of error as to the manner in which the court instructed the jury as to he law of Illinois is so far as it was applicable to the pleading and the proof. The sole complaint here is of the prejudicial effect of the mere reading of the statutes to the jury. Some of the statutes were not applicable to the case and plaintiff's counsel voluntarily withdrew them and in the absence of demonstration of their prejudicial effect the cause may not be reversed for another trial because of the reading of those statutes. Hollenbeck v. Missouri Pac. Ry. Co., 141 Mo. 97, 38 S.W. 723. The practice of reading statutes to the jury is not to be commended Hollenbeck v. Missouri Pac. Ry. Co., supra; Lewis v. Barnes, supra, nevertheless, in the absence of a plain demonstration of abuse of discretion and prejudicial effect, it has not been held to be reversible error when permitted, and in the circumstances of this case it may not be confidently said that the mere reading of the statutes was so prejudicial as to demand a new trial. Annotation 77 A.L.R. 650, 652; Maryland Casualty Co. v. Cook-O'Brien Const. Co., 8 Cir., 69 F.2d 462; Hollenbeck v. Missouri Pac. Ry. Co., supra; Lewis v. Barnes, supra; Barnett v. Sweringen, supra.

The appellants claim that the court erred in giving plaintiff's instructions 1, 2, 3, 5, 6 and 12 and in refusing certain of the appellants' instructions, including their motion for a directed verdict. In so far as the appellants' brief and argument properly set forth 'The points relied on, which shall specify the allegations of error' Rule 1.08(3); Kleinschmidt v. Globe-Democrat Pub. Co., 350 Mo. 250, 165 S.W.2d 620, and in so far as the specified allegations of error with reference to the giving and refusing of instructions are properly presented, briefed and argued, with citation of authorities, Rule 1.08, and reasons, they will be considered. Those questions not so briefed and argued are deemed abandoned upon this appeal. Crampton v. Osborn, 356 Mo. 125, 201 S.W.2d 336, 339, 172 A.L.R. 344; Nichols v. Bresnahan, 357 Mo. 1126, 212 S.W.2d 570, 573.

The assignment with respect to instruction No. 1 is that it 'submitted the question of speed and was not supported by credible evidence.' The argument it not that the instruction itself is erroneous or that there was no evidence of excessive speed. The contention that the instruction was not supported by credible evidence is based upon the fact that Merrick's deposition had been taken about three months after the accident and in the deposition he had said that he could not say how fast the truck was traveling but understood that its speed was thirty-two miles an hour as Doughterty testified. The deposition was not signed and appellants' counsel did not discover until Merrick's cross-examination that he had changed the deposition, without notice to anyone, two or three days before, the trial and after the court reporter had certified and filed the deposition. In addition, when Merrick testified he said that the truck was traveling at an undiminished speed of fifty to fitfy-five miles an hour. The appellants say that speed was the most important issue in the case and they complain of the conduct of Merrick and his counsel in changing the deposition and assert that without the changed testimony there was only Merrick's guess as to speed. It is in this connection that they invoke the rule set forth in Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, that where a party relies...

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