Olsten v. Susman

• Decision Date: 11 December 1962
• Docket Number: No. 49346,No. 2,49346,2
• Citation: 362 S.W.2d 612
• Parties: Marie E. OLSTEN, Appellant, v. Louis B. SUSMAN, Respondent
• Court: Missouri Supreme Court

Page 612

362 S.W.2d 612

Marie E. OLSTEN, Appellant, v.Louis B. SUSMAN, Respondent.

No. 49346.

Supreme Court of Missouri Division No. 2.

Dec. 11, 1962.

Sherman Landau, St. Louis, for appellant.

Murphy & Kortenhof, Joseph M. Kortenhof, St. Louis, for respondent.

BOHLING, Commissioner.

Mrs. Marie E. Olsten sued Louis B. Susman for personal injuries sustained in an automobile collision, asking $22,500 damages.She has appealed from the judgment entered upon a verdict for the defendant.She complains of one of defendant's instructions, a statement in defendant's argument, and the exclusion of certain evidence.

The collision occurred in the intersection of Madison and Hadley streets in the City of St. Louis, between 1:00 and 1:30 p.m., December 17, 1959.It was raining.There were no stop signs at this intersection.Madison is an east-west street, 36 feet wide, and Hadley is a north-south street, 43 feet wide.A multiple family brick dwelling, situate at the southeast corner of the intersection and extending flush to the sidewalks (14 feet 9 inches wide) on Madison and on Hadley, and an automobile, parked at the east curb of Hadley a short distance south of Madison, obstructed the view to some extent of westbound motorists on Madison and northbound motorists on Hadley.

William C. Olsten, plaintiff's son, was westbound in a Plymouth automobile on Madison, taking plaintiff to Dr. Joseph Kessler's office for treatment.Defendant was northbound in a Chevrolet on Hadley.William testified he approached Hadley in the westbound lane of Madison at about 25 miles per hour.He had his foot on the brake, shifted into second gear, slowed to 20 m. p. h. about 25 feet east of the intersection, sounded his horn twice, looked to his right and left, saw no approaching northbound traffic, and entered the intersection.When the Plymouth was 10 or 12 feet into the intersection, he looked south again, couldn't see more than 50 or 60 feet south, and didn't see defendant's automobile.His attention was directed to the situation by his mother, and he looked south again when the Plymouth, traveling 15 or 20 m. p. h., was approximately at the center line of Hadley, and saw the Chevrolet just entering the intersection, about 15 or 20 feet away, at a high rate of speed.He stated the Chevrolet was swerved to the west, going over the center line of Hadley, and then was swerved back east and 'slammed into the front of my car,' jerking it to the north.

Defendant testified he was traveling about 20 m. p. h., northbound, 3 to 5 feet east of the center of Hadley.He slackened speed and looked east before entering the intersection.When at least one-half of his Chevrolet was in the intersection and traveling about 15 m. p. h., he first saw the Plymouth about one-fourth of a block (70 to 80 feet) to the east.Defendant then looked to his left (west) and again to his right and the Plymouth was upon him.The front end of the Plymouth struck the middle of the right side of the Chevrolet, and caused the Chevrolet to spin around and strike a car parked at the northwest corner of the intersection.The Plymouth stopped with its front end in the southbound lane of Hadley.

Plaintiff first attacks instruction No. 3, by which defendant undertook to converse a factual situation essential to a recovery under plaintiff's submission.This calls for a consideration of plaintiff's verdict-directing instruction, which, so far as material here, required findings 'that the Plymouth automobile in which Mrs. Olsten was a passenger entered said intersection prior to the time defendant's automobile entered said intersection and that the Plymouth automobile was in the intersection when defendant's automobile arrived thereat; and if you further find and believe from the evidence that after the Plymouth was in said intersection, the defendant, in the exercise of the highest degree of care could have yielded the right of way through said intersection that is the right to proceed through said intersection, to the Plymouth automobile'; and, in effect, that the proximate cause of plaintiff's injuries was defendant's negligence in failing to yield the right-of-way to the Plymouth automobile in said intersection.

Plaintiff's submission was under an ordinance providing: 'All drivers shall reduce speed at intersections and yield the right-of-way to any vehicle already within the intersection, and when entering at the same time shall yield to the vehicle on his right.'St. Louis OrdinanceNo. 46,687, Article 2, Sec. 13(7).

Questioned instruction No. 3 read: 'The court instructs the jury that if you find and believe from the evidence that the automobile operated by Louis Susman entered and was in the intersection formed by Hadley and Madison streets before the automobile operated by William C. Olsten, Jr., entered said intersection, then you are instructed that you must return your verdict in this case for defendantLouis Susman and against the plaintiff.'

The situation would accord with Coit v. Bentz, Mo., 348 S.W.2d 941, 945[6, 7], stressed by plaintiff, had defendant undertaken to converse plaintiff's submission of defendant's duty to exercise the highest degree of care to yield the right-of-way to the Plymouth automobile through the intersection (submitted in plaintiff's last-quoted 'if you further find' clause) and, in doing so, omitted therefrom defendant's duty to exercise the highest degree of care in so yielding the right-of-way, as did the instruction in the Coit case.The present defendant's instruction, instead of conversing the negligence feature of plaintiff's instruction, conversed physical acts constituting a vital and necessary hypothesis submitted by plaintiff for a plaintiff's verdict.The propriety of doing so is recognized in the Coit case at l. c. 944 and l. c. 945 at the close of the discussion.

In plaintiff's case of Martin v. Lingle Refrigeration Co., Mo., 260 S.W.2d 562, 565, 566[1, 2], the plaintiff submitted several acts of negligence on the part of defendant in the disjunctive and defendant's verdict-directing instruction conversed some but not all of the negligent acts hypothesized in the plaintiff's instruction.That is not the situation in the case at bar.

In plaintiff's cases of Hartley v. Smith, Mo., 354 S.W.2d 854, 857;Happy v. Blanton, Mo., 303 S.W.2d 633, 637[3-6];Thayer v. Sommer, Mo., 356 S.W.2d 72, 79, andHall v. Rager, Mo., 357 S.W.2d 83, 87[6, 7], the court was considering 'sole cause' instructions, which should submit findings of hypothesized facts, the negligence of plaintiff or some third party, and non-negligence of the defendant.Some distinctions between the two classes of instructions are noted in the Happycase, supra;and seeLiebow v. Jones Store Co., Mo., 303 S.W.2d 660, 662[5, 6].

In the case at bar the testimony on behalf of plaintiff was that the Plymouth in which he was a passenger had entered, was in and proceeding across the intersection before defendant's Chevrolet arrived at the intersection.This was a submitted essential factual situation to a plaintiff's verdict.Under the submission plaintiff had no case against defendant if the Plymouth was not in the intersection when defendant's automobile arrived thereat.Cases are reviewed in the appellate courts only upon the same theory upon which they are tried and submitted in the trial courts.Welch v. McNeely, Mo., 269 S.W.2d 871, 875;Wartenbe v. Car-Anth Mfg. & Sup. Co., Mo.353 S.W.2d 570.The issues involved in plaintiff's cases of Wilson v. Toliver, 365 Mo. 640, 285 S.W.2d 575, 582, andRoss v. Wilson, 236 Mo.App. 1178, 163 S.W.2d 342, 346, were not the issue submitted in plaintiff's verdict-directing instruction.

Plaintiff's verdict-directing instruction was in the conjunctive throughout.Defendant's questioned instruction submitted facts established by evidence that would disprove an essential element of plaintiff's submission.Dell'Aria v. Bonfa, Mo., 307 S.W.2d 479, 480.See, for instance, White v. Pupillo, Mo.App., 263 S.W. 1011, 1012, where the court's modification of a converse instruction was held error; and the instruction approved in McCormick v. Kansas City, Mo., 262 S.W.2d 868, 870, 871.The instruction was proper in view of plaintiff's submission.Casessupra;Oshins v. St. Louis Pub. Serv. Co., Mo., 254 S.W.2d 630, 631;Frechin v. Thornton, Mo., 326 S.W.2d 122, 127;...