Mitchell v. Buchheit

• Decision Date: 19 December 1977
• Docket Number: No. 59805,59805
• Citation: 559 S.W.2d 528
• Parties: Devoid MITCHELL and Florence Mitchell, Appellants, v. Rudy BUCHHEIT and Kenneth Buchheit, d/b/a Buchheit Trucking Service, Respondents.
• Court: Missouri Supreme Court

Page 528

559 S.W.2d 528

Devoid MITCHELL and Florence Mitchell, Appellants, v. Rudy BUCHHEIT and Kenneth Buchheit, d/b/a Buchheit Trucking Service, Respondents.

No. 59805.

Supreme Court of Missouri, En Banc.

Dec. 19, 1977.

Robert F. Ritter, St. Louis, for appellants.

Robert H. Burns, John H. Marshall, Clayton, for respondents.

MORGAN, Chief Justice.

After filing an opinion written by Stewart, J., the Court of Appeals, St. Louis District, pursuant to Rule 83.02 transferred the case to this court "for the purpose of (our) reexamining the existing law," relative to whether or not the surviving parents of a minor child, in an action for wrongful death, may recover for pecuniary benefits which they reasonably could have expected after majority of the deceased child.

Decedent was 19 years and 10 months of age, unmarried, and living with his parents when killed in an accident involving two motor vehicles. The parents instituted a wrongful death action; and, judgment was entered on a jury verdict in their favor for $12,500. Both plaintiffs and defendants appealed. Plaintiffs complain of the trial court's action in restricting evidence of damages to that period prior to decedent's majority; and, defendants assert error in the trial court's failure to direct a verdict in their favor for the alleged reason decedent was guilty of contributory negligence as a matter of law.

We now resolve the issues as though here on direct appeal. We do acknowledge, however, the opinion written by Judge Stewart from which we have quoted at length without benefit of quotation marks.

Facts

The collision which gave rise to this action occurred at about 4:45 a. m. on February 3, 1971, on Highway 61, a short distance north of its intersection with Highway WW in Pike County. Highway 61 is a two-lane highway. Each lane is about 11 feet wide with shoulders of four feet each. The road, in that vicinity runs north and south. It had been raining, snowing and sleeting through the previous night. It was dark and there was a freezing mist falling at the time of the collision. The roads were iced.

Plaintiffs' decedent, an employee of the State Highway Department, had been called at about 9:00 p. m. on the night before to operate a department truck spreading salt and cinders. Decedent was accompanied by Lloyd Kuntz, who rode along as a helper. The truck was equipped with headlights, taillights, a revolving yellow light on top, and running lights. It also had three sets of directional signals: one set in the front of the truck, one just forward of the front door and one in the bed of the truck at the rear. When the directional signal is operated all three sets of signals will operate. If one signal fails to operate all will fail. When the bed is raised for spreading the taillight cannot be seen.

Decedent had been instructed to spread salt and cinders north beyond Highway WW and then to turn around at the driveway to the home of one Thomas and then move south spreading the southbound lane of the highway. The driveway to the Thomas home is on the west side of the road and is a private drive. During the salting operation decedent drove at a speed of about 25-30 m. p. h.

Defendants' employee, Francis Peer, was operating their tractor with a 40-foot trailer enroute from Perryville, Missouri, to Washington, Iowa, with a load of 735 feeder pigs. He was going north on Highway 61 at a speed of 45-50 m. p. h. He was first aware that there was a truck spreading salt ahead of him by reason of the condition of the road. The highway was melting off.

He first noticed this condition when he was about two miles from the site of the collision. When about half a mile from the point of collision, Peer first saw the highway truck about a quarter of a mile ahead of him.

When the truck driven by decedent was 200 feet from the Thomas driveway, he activated the left turn directional signal. As he approached the drive, he slowed his speed to 5-8 m. p. h.

Mr. Peer was unable to estimate the speed of the highway truck at any time while it was in his sight. When he was about 50 feet behind the truck, he pulled out to pass it. He did not see the left turn signal. He did not sound his horn. He was looking ahead for oncoming traffic. When the highway truck got to the Thomas driveway it made a left turn, and while in the turn the defendants' vehicle struck the left side of the highway truck at the left door. The left wheels of defendants' vehicle were about 4 feet off the highway at the time of impact. The vehicles locked and continued down the highway some 225 feet, primarily in the left lane. Plaintiffs' decedent was thrown from the truck and died as a result of the injuries. He did not make a statement before he died.

The defendants' driver testified on behalf of defendants by way of deposition. He testified that he was 50 feet to the rear of the highway truck when he pulled out to pass, and when he got into the left-hand lane he flashed his all-weather, high intensity lights twice by way of a hand switch on the dash.

Defendants' Appeal

Defendants' sole contention is that plaintiffs' decedent was contributorily negligent, as a matter of law, in failing to see what looking would have revealed and in thereafter turning left when it was not reasonably safe to do so.

The burden of proving contributory negligence was upon defendants unless plaintiffs' evidence established it as a matter of law. The issue of contributory negligence is one of fact for the jury unless reasonable minds could draw only the conclusion that plaintiff was negligent. Thompson v. Byers Transp. Co., 362 Mo. 42, 239 S.W.2d 498, 499-500(1-4) (1951).

Defendants relied heavily on the following portion of § 304.019, RSMo 1969:

No person shall stop or suddenly decrease the speed of or turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided herein.

This portion of the statute was discussed in Reed v. Shelly, 378 S.W.2d 291, 297 (Mo.App.1964), wherein it was said:

Section 304.019 does not, in our view, prohibit a left turn unless the circumstances are absolutely free from danger, nor does it require the maintenance of a continuous observation to the rear prior to or during the making of a left turn.

Because of the death of plaintiffs' son there was no direct evidence that he looked or that he failed to maintain a proper lookout. The fact that the accident occurred does not require a finding that decedent failed to look at any particular time. Ruediger v. American Bus Lines, Inc., 426 S.W.2d 4(10) (Mo. banc 1967). Where there is no direct evidence on the issue, the deceased is clothed with the presumption of due care. Foley v. Hudson, 432 S.W.2d 205, 209(6) (Mo.1968).

Defendants' driver testified that he pulled his rig out to pass when 50 feet from the highway truck. The jury could believe he was then going 50 m. p. h. or 10 times the 5 m. p. h. of the highway truck, and that the truck was then approaching and going into its left turn. The jury could have found that if decedent looked at any time after he activated the left turn signals up to the time he was committed to his turn, about the time defendants' truck started to move to the left to pass, he would have seen a vehicle traveling in its own lane with no indication that it was intending to pass.

The question of contributory negligence was for the jury. Williamson v. Winfrey, 444 S.W.2d 495 (Mo.1969), and Wilkerson v. State Farm Mutual Automobile Ins. Co., 510 S.W.2d 50 (Mo.App.1974).

Defendants cite us to no case in which a left-turning motorist was held to be contributorily negligent as a matter of law. They rely primarily on Huff v. Trowbridge, 439 S.W.2d 493 (Mo.1969), which was carefully analyzed in Williamson v. Winfrey, supra. A further discussion here would serve no useful purpose. The judgment of the trial court is affirmed as to defendants' appeal.

Plaintiffs' Appeal

As heretofore noted, plaintiffs contend that the award of $12,500 was inadequate, and that such an unacceptable result was caused by the trial court erroneously refusing to admit evidence or permit argument that circumstances were such that plaintiffs reasonably could have expected pecuniary benefits from their son after he reached majority. It is also argued that plaintiffs should have been allowed to give MAI 5.03 in a form with respect to damages as to include the bracketed phrase "(and are reasonably certain to sustain in the future.)" ¹

The Court of Appeals agreed with plaintiffs and would have remanded the cause for a new trial as to damages; but, being bound by the latest pronouncements of the substantive law by this court, ordered transfer. We agree that a reassessment of the issue is proper and necessary.

In this state,the Wrongful Death Act was enacted originally in 1855. It has been revised several times since, including 1879, 1905, 1955, 1967 and 1973 Amendments. Throughout, and to this date, the interpretation placed upon the statute by the courts of this state ² was delineated best in Oliver v. Morgan, 73 S.W.2d 993 (Mo.1934), wherein this court stated, l. c. 997, that:

"It is . . . clearly the law that the basis of the recovery (for the death of minor child) is the value of the child's services to the parents during the child's minority, and that from this must be deducted the expenses of the support and maintenance of the child during that period * * * Parsons v. Missouri Pac. R. Co., 94 Mo. 286, 6 S.W. 464 * * * So long as the statute permits a recovery in such a case of only the pecuniary loss to the plaintiffs, the plaintiffs must prove and the jury find an actual pecuniary loss in order to recover."

For the purposes of this discussion, we need not consider those provisions allowing a jury in assessing damages to take into consideration any aggravating circumstances attending the...