Neely v. Freeze

• Decision Date: 25 November 1949
• Docket Number: 6856.
• Citation: 225 S.W.2d 144,240 Mo.App. 1001
• Parties: James W. Neely, Respondent, v. N. T. Freeze, Appellant
• Court: Missouri Court of Appeals

225 S.W.2d 144

240 Mo.App. 1001

James W. Neely, Respondent, v. N. T. Freeze, Appellant

No. 6856

Court of Appeals of Missouri, Springfield District

November 25, 1949

Delivered

Appeal from Circuit Court of Jasper County; Hon. Woodson Oldham Judge.

Reversed and remanded.

Bradshaw & Fields, Arkley W. Frieze and John F. Low for appellant.

The trial court erred in denying appellant's motion for a directed verdict offered at the close of plaintiff's evidence and again at the close of all the evidence.There was no testimony in the record showing that appellant was guilty of negligence in any respect.Carter v. Wells, et al.(Mo. App.)40 S.W. (2) 725, 726;Emrick v. City of Springfield et al.(Mo. App.),110 SW (2) 840, 843;Annin v. Jackson350 Mo. 331, 100 SW (2) 110, 876.There was no testimony in the record showing whether the damage to respondent's car resulted from the first wreck with appellant's car or from the second wreck with Beason's car, and, therefore, no testimony in the record showing what damages, if any, were caused to respondent's car by appellant.Newton Burial Park v. Davis et al (Mo. App.) 78, SW (2) 150, 154;25 Corpus Juris Secundump. 788, N. 76, 79.Inasmuch as the respondent, over appellant's objection, was allowed to use the Circuit Clerk's files as evidence and to read therefrom, the trial court erred in refusing thereafter to allow appellant to read to the jury from the same files certain portions thereof tending to impeach respondent's testimony.Cantrell v. Knight(Mo. App.)72 SW (2) 196, 199;Negbaur v. Fogel Const. Co.(Mo. App.)58 SW (2) 346, 352;Andrus v. Business Men's Acc. Ass'n of America283 Mo. 442, 223 SW 70-75.The trial court erred in giving, over the objections of the appellantrespondent's instruction numbered 1.Respondent's InstructionNo. 1 erroneously directed the jury to award damages to respondent without either submitting the question of appellant's negligence, or requiring the jury to find wherein appellant was negligent as supported by the evidence and as pleaded in the petition.Annin v. Jackson340 Mo. 331, 100 SW (2) 872, 875, 976, 877;Abbott v. The Kansas City, St. Joseph & Council Bluffs Railroad Company83 Mo. 271, 278, 279;Watts v. Moussette et ux.337 Mo. 533, 85 SW (2) 487, 488;Ivey v. Hanson et al.226 Mo.App. 38, 41 SW (2) 840, 841;Zack Burtin v. Quincy, Omaha & Kansas City Railway Co.,111 Mo.App. 617, 618.Respondent's InstructionNo. 1 erroneously directed the jury to award damages to respondent without submitting the question of appellant's negligence being the proximate cause of the accident.Lackey v. United Rys. Co.288 Mo. 120, 231 SW 956, 963;Ducoulombier v. Baldwin et al.(Mo. App.)101 SW (2) 96, 102;Fenton v. Hart(Mo. App.)73 SW (2) 1034, 1038;St. Louis & H. R. Co. v. Walsh Fire Clay Products Co.(Mo. App.)16 SW (2) 616, 618.Respondent's InstructionNo. 1 erroneously directed the jury to award damages to respondent when there was no evidence of the extent and value of the damages caused respondent's car by appellant's car.Rose v. St. Louis Public Service Co.(Mo. Sup.)205 SW (2) 559, 561;Kadderly et al. v. Vossbrink et al.(Mo. Sup.)149 SW (2) 869, 874;Fenton v. Perkins3 Mo. 23.The trial court erred in giving, over the objections of the appellant, respondent's instruction numbered 6.Respondent's InstructionNo. 6 erroneously directed the jury to award damages to respondent for only the damage directly caused by the collision between respondent's and appellant's automobiles when there was no evidence of such damages.Rose v. St. Louis Public Service Co.(Mo. Sup.)205 SW (2) 559, 561;Kadderly et al. v. Vossbrink et al.(Mo. Sup.)149 SW (2) 869, 874.The trial court erred in giving, over the objections of the appellant, respondent's instruction numbered 7.Respondent's InstructionNo. 7 erroneously directed the jury to award damages to respondent for only the damage directly caused by the collision between respondent's and defendant Beason's automobile when there was no evidence of such damages.Rose v. St. Louis Public Service Co.(Mo. Sup.)205 SW (2) 559, 561;Kadderly et al. v. Vossbrink et al. (Mo. Sup.) 149, SW (2) 869, 874.

Dalton Deshazer for respondent.

The trial court did not err in refusing appellant's motion for a directed verdict at the close of respondent's evidence and at the close of all the evidence.In determining whether respondent made a case for the jury all of the evidence must be considered in a light most favorable to respondent's contentions and all inferences unfavorable to respondent must be rejected.There was evidence of negligence on the part of appellant in several respects including the violation of a statutory duty.Revised Statutes of Missouri, 1939, Section 8385;Holmes v. McNeil203 SW (2) 665, 668(S.Ct.);Levine v. Hochman273 SW 204, 217 Mo.App. 76.There was evidence on behalf of respondent to show what damage was caused by the collision with appellant's car and what damage was caused by the collision with defendant Beason's car.Appellant failed to offer an instruction on nominal damages.Objection raised by appellant cannot be reached by a motion for a directed verdict and was waived by appellant by his failure to offer an instruction on nominal damages.Herod v. St. Louis San Francisco Ry. Co.299 SW 74(St. Louis Ct. of App.);Neal v. Kansas City Public Service Co.,184 SW (2) 441, 353 Mo. 789;Levine v. Hochman273 SW 204, 217 Mo.App. 76;Stevens v. Dickey, St. Louis Court of Appeals, June 21, 1949, case No. 27595. 78 A. L. R. 865n.Appellant sought to impeach the driver of respondent's car, Jack Boswell, and respondent, James W. Neely, both witnesses in the case, who had both testified that Jack Boswell was driving respondentJames W. Neely's car, at the time of the accident, by introducing in evidence respondent's amended petition to show that before it was amended it alleged that respondent himself was driving.Inasmuch as all witnesses who testified on both sides on this matter, including appellant, testified that Jack Boswell was in fact the driver of respondent's car as alleged in respondent's amended petition, no error was committed by the Court in refusing to admit the petition or testimony concerning its contents before amendment.Since appellant's witnesses testified that Jim Beason's car was traveling north and appellant at no time contended otherwise it was no error to exclude respondent's amended petition offered by appellant to show that before it was amended it alleged that Jim Beason's car was traveling south.Akins v. Hull30 SW (2) 1101(K. C. Ct. of App.);Gilchrist v. Kansas City Rys. Co.,254 SW 161(S.Ct.);Diehl v. Charles8 SW (2) 1082(Springfield Ct. of App.).The appellant complains that the jury was not required to find that the appellant was guilty of negligence.Of course the rule of law is that if the appellant violated a statutory duty it is not necessary to require the jury to make a finding as to the quality of appellant's act.In other words it is not necessary that the jury make a finding that the appellant was negligent.It is only necessary that the jury find that appellant violated a statute the violation of which is negligence per se and that the act of the defendant in so doing was the cause of the damage to respondent's car.The jury was required by this instruction to find that appellant crossed over to the left side of the street and struck respondent's car in violation of his duty to drive as near as practicable to the right hand side of the highway.Certainly the appellant cannot complain that the instruction did not state that the act proved to have been committed by appellant was a violation of the statute and therefore negligence per se.Such an omission, if it is an omission, would operate in favor of the appellant.Revised Statutes of Missouri, 1939, Section 8385."Constructing and Reviewing Instructions" by Samuel J. Trusty, pp. 25, 29, 30;Perdue v. Montgomery Ward100 SW (2) 341(K. C. Ct. of App.);State ex rel. City of St. Joseph v. Ellison 223 DE 671 (S.Ct.);Borowski v. Loose-Wiles229 SW 424(K. C. Ct. of App.).Respondent's petition alleged a violation of a statutory duty but even if it did not the petition should be taken as amended to conform to the proof.Anderson v. Kraft 129 SW (2)(St. Louis Ct. of App.);Robinsonv. K. C. P. S. Co., 137 SW (2) 548 (S.Ct.)(l. c. 554);Ilgenfritz v. Mo. P. & L. Co.,340 Mo. 648, 101 SW (2) 723(l. c. 726).Appellant complains that the jury is not required to find that appellant's negligence was the proximate cause of the collision.It is not necessary to use the words "proximate cause."Stevens v. Dickey, St. Louis Court of Appeals, June 21, 1949, No. 27595;Cornovski v. St. Louis Transit Co.,207 Mo. 263, 106 SW 51;Smart v. Raymond142 SW (2) 100(K. C. Ct. of App.);Wheeler v. Breeding109 SW (2) 1237(l. c. 1243)(Springfield Ct. of App.).There was evidence of the extent of damage suffered by respondent's car caused by appellant's car.Appellant has waived this point by failing to offer an instruction on nominal damages.See authorities cited.The trial court did not err in giving respondent's instruction No. 6.See authorities cited.The trial court did not err in giving respondent's instruction No. 7.See authorities cited.

McDowell, J. Vandeventer, P. J., and Blair, J., concur in results.

OPINION

McDOWELL

This is an action for damages to plaintiff's automobile.The action was begun in the Circuit Court of Jasper County, Missouri, June 28th, 1948 against N. T. Freeze and Jim Beason.The cause was tried before a jury, January 25th, 1949, and a verdict rendered in favor of plaintiff and against the defendant, N. T. Freeze, in the sum of $ 567.33, and a verdict against defendan...