Miller v. Harpster

• Decision Date: 04 March 1918
• Parties: BESSIE MILLER v. CLARK W. HARPSTER, Appellant
• Court: Missouri Supreme Court

201 S.W. 854

273 Mo. 605

BESSIE MILLER v. CLARK W. HARPSTER, Appellant

Supreme Court of Missouri, First Division

March 4, 1918

Appeal from Buchanan Circuit Court. -- Hon. Charles H. Mayer, Judge.

Affirmed.

A Bowers for appellant.

(1) The court erred in submitting this case to the jury upon the question whether the appellant committed the acts complained of willfully and maliciously. There is no evidence that the appellant willfully ran over the respondent. There is no evidence of malice. This case is bottomed on express malice. And before a recovery can be had there must be some proof of actual malice, or such recklessness or carelessness on the part of the appellant, as is equivalent to an actual intent to injure the respondent. Minter v. Bradstreet, 174 Mo. 444: 18 Am. & Eng. Ency. Law (2 Ed.), p. 1093. (2) The verdict is wholly unsupported by any evidence. There is no evidence of malice. At most there could only be negligence charged against appellant. Malice is distinguished from negligence in that it arises from an evil purpose, while negligence arises from a failure of purpose. People v Camp, 21 N.Y.S. 741. Malice is the disposition to injure another without cause, from a spirit of revenge, merely, or from personal gratification. King v. Root, 4 Wend (N.Y.) 113-155, 21 Am. Dec. 102. Malice in common acceptance means ill will towards some person. In its legal sense it is defined to be a wrongful act done intentionally, without legal justification or excuse. Buckley v. Knapp, 48 Mo. 152. (3) There is no evidence that the appellant willfully and maliciously injured respondent. Juries must base their findings on substantial legal evidence, direct or inferential, and cannot base them on mere conjecture. McCarthy v. Fagin, 42 Mo.App. 606. Presumptions as to facts or events arising from the absence of all evidence cannot be rationally indulged, when the reason on which they are founded has been made to cease by the introduction of evidence throwing light on the occurrences and explanatory of their causes. Sackberger v. Grand Lodge, 73 Mo.App. 38; Lee v. Knapp, 55 Mo.App. 390; Schepers v. Railroad, 126 Mo. 665. (4) In the absence of evidence that appellant willfully and maliciously injured the respondent it cannot be presumed that appellant willfully and maliciously injured respondent. All the presumptions are that appellant did not willfully and maliciously injure the respondent, until the question is put at issue as in this case, when there is no presumption either way. The issue is a question of fact, which is to be determined by the preponderance of evidence. Liese v. Meyer, 143 Mo. 547. (5) The verdict and judgment is excessive.

Mytton & Parkinson for respondent.

This case was by agreement of the parties submitted to the jury upon the theory of wilfulness and maliciousness on the part of the appellant, and there was evidence to support respondent's theory of the case; that is, that the act was done wilfully and maliciously. 40 Cyc. 938; Holwerson v. Railroad, 157 Mo. 232; Railroad v. Wheeler, 115 Ind. 253, 17 N.E. 563; Pa. Co. v. St. Clair, 62 Ind. 301, 30 Am. Rep. 185; Palmer v. Railroad, 112 Ind. 250; State v. Robbins, 66 Me. 324; State v. Wienners, 66 Mo. 18; Trauerman v. Lippincott, 39 Mo.App. 478; Goetz v. Ambs, 27 Mo. 28; Ickenroth v. Transit Co., 102 Mo. 612; McNamara v. Transit Co., 182 Mo. 676; Davis v. Railroad, 192 Mo.App. 492; Sommers v. Keller, 153 Mo.App. 626; In re Freche, 109 F. 620; United States v. Reed, 86 F. 308; In re Munro, 95 F. 17; Tinker v. Caldwell, 193 U.S. 484.

BROWN, C. Railey, C., concurs. Bond, P. J., concurs in the result.

OPINION

BROWN, C.

This is a suit for personal injuries received by respondent from being struck by an automobile on the public highway. The amended petition upon which the cause was tried states the time and circumstances of the occurrence as follows:

"Comes now the plaintiff in the above entitled cause and for her second amended petition and cause of action states that on the evening of August 1, 1914, about eight o'clock p. m., she was walking along what is commonly known as the Rochester Road in Buchanan County, Missouri, said road being then and there a public highway and throughfare in said county and State; that while so walking along said road and while in the exercise of ordinary care on her part, the agents, servants and employees of the defendants in charge of and driving an automobile and motor car owned by the defendants, carelessly, negligently, recklessly and wantonly and without any regard whatever for the safety of the plaintiff or other pedestrians using said thoroughfare at said time, willfully and maliciously drove said automobile on, along and over said Rochester Road heretofore mentioned, and against, upon and over the plaintiff, knocking her down, dragging her along said public road and thoroughfare, and inflicting the injuries hereinafter complained of; that said automobile was equipped with a horn or other safety sounding alarm device, and that said agent, servant and employee of the defendants carelessly, negligently, recklessly and wantonly ran said car as aforesaid along said public road and against and upon the plaintiff without sounding said horn or other alarm, or giving to the plaintiff any notice or warning whatsoever of the approach of said automobile, and at a dangerous and reckless rate of speed, to-wit, at the rate of thirty miles per hour; . . . that defendants carelessly and negligently, recklessly and wantonly, and without any regard to the safety of plaintiff or other pedestrians using said road, failed to stop said automobile when they saw plaintiff's danger, or, in the exercise of reasonable care and caution upon their part, could have seen plaintiff's danger; that defendants carelessly and negligently, recklessly and wantonly failed to give any signal or warning of the approach of said automobile; that all of said injuries above mentioned were willfully and maliciously given by defendants, their agents, servants and employees operating said automobile, to plaintiff at said time."

The petition then set forth, truthfully and in detail, the nature and extent of the injuries inflicted upon the plaintiff, and laid her damages at the sum of twenty thousand dollars, for which she asked judgment.

Another defendant was originally joined with the appellant, as to whom the respondent suffered a nonsuit during the trial. This accounts for the use of the plural number used in referring to "defendants" in the petition.

No objection was made by demurrer or otherwise to the form or substance of the petition before the trial.

The verdict was for $ 14,000, upon which judgment was entered.

The answer, in addition to a general denial, contained a special plea of contributory negligence, to which a reply was filed.

There is no question as to the character or extent of the injury. The bone of respondent's thigh was shattered from a point just above the knee for about six inches, so that there were several pieces, one of which was driven through the flesh and skin above the fracture, and from which it protruded when she was picked up. At the time of the trial, which occurred nearly ten months afterward, she was walking on crutches and the leg was shortened from three to three and a half inches. She received various other bruises more or less severe, particularly in her side and shoulder. While her general health was still affected at the time of the trial, her full recovery in that respect was probable. The deformity of her leg was, of course, permanent.

The accident occurred upon a public highway extending northeasterly from St. Joseph, and at a point about a quarter of a mile outside the city limits, where the road was graded to a width of about thirty-five feet, in the middle of which was a macadamized space of sixteen feet.

At about 5:30 or 6 o'clock a party of five had gathered at a saloon at Sixth and Messanie streets, in St. Joseph, for a fishing expedition. At that place they put two cases of beer in the Ford car in which they were going, and on their way through the city completed their piscatorial outfit with the addition of a quart bottle of whisky. At a point on the Rochester Road about two miles east of where the plaintiff was injured, their car "turned turtle," injuring some of them so that a doctor was called to bandage them, and the appellant was also called to come to the place of the accident and take them to the city in his car. The appellant accompanied by a woman, went out, and taking them all in except one who had accompanied the doctor, started for the city. It was during this homeward trip that the accident occurred. His condition was described by witnesses in different terms, varying from "under the influence of liquor" to "drunk." He did not testify. The respondent, who lived with her parents on the Rochester Road near the place of the accident, had, accompanied by her little brother and Ethel Kelsey, a girl cousin who resided in Oklahoma and was visiting the Miller family, taken the cows to the pasture a short distance away, and was returning when they met George Rowbotham, a boy friend, and stopped to talk with him. They were standing at the north side of the macadam, where it joined the dirt road, engaged in conversation, when appellant's automobile came from the east over a perfectly straight stretch of road from two to three hundred yards in length, and ran upon the respondent. The car is described by some of the witnesses as covering the whole road, that is to say, wabbling from side to side of the road, and running very fast -- from 35 to 40 miles per hour. A witness who met a car about that time at a distance which she described as two blocks east of the place of the accident, related her...