Petty v. Kansas City Public Service Co.

• Decision Date: 09 December 1946
• Docket Number: 39834
• Parties: James Roy Petty and Junior Viola Petty v. Kansas City Public Service Company, a Corporation, Appellant
• Court: Missouri Supreme Court

198 S.W.2d 684

355 Mo. 824

James Roy Petty and Junior Viola Petty v. Kansas City Public Service Company, a Corporation, Appellant

No. 39834

Supreme Court of Missouri

December 9, 1946

Rehearing Denied January 13, 1947.

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Affirmed.

Charles L. Carr, John T. Harding, R. Carter Tucker, John Murphy and William H. Wilson for appellant.

(1) The court erred in giving plaintiffs' Instruction One: The instruction erroneously misdirected the jury by submitting the so-called fifteen-mile speed ordinance, Chapter 61 Section 3, Revised Ordinances 1941, which appellant submits was not the law, said section having been incorporated in the revision of the traffic ordinance through error, though same had been repealed. (2) That said fifteen-mile speed ordinance, Chapter 61, Section 3, Ordinances of 1941 (No. 7100), which was erroneously included and had been repealed, was in direct conflict with Sections 11-38.3, 11-4, Subhead H; 11-1, and other subdivisions of said Section 11 of Ordinance 7100, in force and effect in Kansas City, Missouri, on the day of the accident, and authorizing a speed of twenty-five miles per hour upon said Twelfth Street at said time and place, by reason of which the jury was misdirected as to the authorized speed in effect. Fish v. Walsh, 154 N.E. 148, 323 Ill. 359; City of Chicago v. Degitis, 48 N.E.2d 930, 383 Ill. 171; Robertson v. State, 159 S.W. 713; Automobile Gasoline Co. v. St. Louis, 32 S.W.2d 281, 326 Mo. 435. (3) Said instruction was erroneous because it made defendant an insurer. Clardy v. Kansas City Pub. Serv. Co., 42 S.W.2d 370, 227 Mo.App. 749. (4) The court erred in giving plaintiffs' Instruction Two: The instruction was erroneous and misleading and failed to direct the jury that any damages assessed and allowed to plaintiffs for loss of services of their daughter should be limited to the period until she attained her majority; the instruction as given was contrary to law and gave the jury a roving commission to consider loss of services from the daughter beyond her majority. Evans v. Farmers Elevator Co., 147 S.W.2d 593, 347 Mo. 326. (5) The instruction erroneously authorized the jury to assess damages for plaintiffs in such sum as "will be fair and reasonable pecuniary compensation to them for whatever damages resulting in loss of services of their daughter they may have sustained by reason of injury," because the word "may" does not sufficiently carry the idea of reasonable certainty and authorizes and invites the jury to speculate and guess, and gives the jury a roving commission, all to the prejudice of defendant. Evans v. Farmers Elevator Co., 147 S.W.2d 593; Krinard v. Westerman, 216 S.W. 938, 279 Mo. 680. (6) Instruction Two further misdirected the jury in that it improperly and erroneously authorized the jury to allow plaintiffs "the reasonable value of any medical or hospital treatment, if any, of any kind whatsoever which you may find and believe from the evidence will necessarily be incurred by the plaintiffs for treatment of their said daughter until she reaches the age of twenty-one years," because in the entire transcript there is no evidence or proof that any future medical or hospital care, treatment or surgery will be required before the child attains her majority, by reason of which the jury was misdirected, was given a general roving commission and invited to base a verdict on conjecture and speculation, all to the prejudice of this defendant and over its objections and exceptions. Noe v. Thompson, 173 S.W.2d 896; Seago v. New York Central Ry. Co., 155 S.W.2d 126, 348 Mo. 761; Rothe v. Hull, 180 S.W.2d 7, 352 Mo. 926; Budd v. Budd, 97 S.W.2d 149; Bante v. Wells, 34 S.W.2d 980. (7) Instruction Two further misdirected the jury and improperly and erroneously authorized the jury to award plaintiffs "the amount of earnings of daughter which you believe and find from the evidence she will necessarily lose, until she reaches the age of 21 years," etc.; because the daughter's potential loss of earnings is not necessarily the same as the plaintiffs', and because said instruction is broader than the pleadings or the evidence and proof, and gives the jury a roving commission to speculate and guess, all to the prejudice of this defendant. Schmitz v. St. Louis, I.M. & S. Ry. Co., 46 Mo.App. 380. (8) The court erred in refusing to grant defendant a new trial because the verdict was grossly excessive and not supported by the evidence and the judgment after remittitur was still very excessive; that the verdict is so excessive as to show the jury was dominated by sympathy for plaintiffs and returned a verdict based on sympathy for plaintiffs which was highly prejudicial to defendant and to all of which defendant, this appellant, objected and excepted. Bryant v. Kansas City Rys. Co., 217 S.W. 632; Meeker v. Union Electric L. & P. Co., 216 S.W. 933, 279 Mo. 574; Godfrey v. Kansas City P. & L. Co., 247 S.W. 451; Williams v. Fleming, 267 S.W. 6, 218 Mo.App. 563; Clayton v. Hydraulic Press Brick Co., 27 S.W.2d 52; Lange v. Mo. Pacific Railroad, 91 S.W. 989, 115 Mo.App. 582; Samples v. Kansas City Rys. Co., 232 S.W. 1049; Speakman v. Kurn, 115 S.W.2d 185; Ponticello v. Lilliensiek, 83 S.W.2d 150; Kemp v. Doe Run Lead Co., 57 S.W.2d 758; McFetridge v. Kurn, 125 S.W.2d 912; Marx v. Parks, 39 S.W.2d 570. (9) The court erred in refusing to declare a mistrial in this cause when during his opening statement to the jury plaintiffs' counsel went into prejudicial and minute detail of alleged injuries and suffering of the plaintiffs' minor daughter, which were not relevant to the issues in plaintiffs' loss of service case and were not items upon which any recovery could be based, but appealed to the emotions of and inflamed the jury and aroused great sympathy for the child and her parents. Chawkley v. Wabash Ry. Co., 297 S.W. 20, 317 Mo. 782; Walsh v. Terminal Railroad Assn. of St. Louis, 182 S.W.2d 607, 353 Mo. 458; O'Hara v. Lamb Construction Co., 197 S.W. 163; Haake v. Dulle Mill Co., 153 S.W. 74, 168 Mo.App. 177. (10) The court erred in admitting in evidence over defendant's objection Chapter 61, Section 3, Revised Ordinances of Kansas City, Missouri, 1941, also referred to as Chapter 61, Section 3, Ordinance Number 7100, entitled "Speed of Street Cars," and purporting to limit the speed of street cars to fifteen miles per hour, because said Section 61-3 of the ordinance was not the law, having been erroneously included in the general revision of the Traffic Code and Ordinances of 1941. Fish v. Walsh, 154 N.E. 148, 323 Ill. 359; City of Chicago v. Degitis, 48 N.E.2d 930, 383 Ill. 171; Robertson v. State, 159 S.W. 713; Automobile Gasoline Co. v. St. Louis, 32 S.W.2d 281, 326 Mo. 435; State ex rel. Attorney General v. Heidorn, 74 Mo. 410; St. Louis v. Kellman, 139 S.W. 443, 235 Mo. 687. (11) The court erred in excluding from evidence Section 98, Ordinance 6312 of Kansas City, Missouri, which specifically repealed all the ordinances or parts of ordinances in conflict with Ordinance No. 6312, thereby repealing and nullifying Section 638 of Ordinance 56134, known as the Fifteen Mile Ordinance, by reason of which the jury was caused to be misdirected and this appellant was prejudiced. Same authorities as Point (10). (12) The court erred in excluding from evidence Section 11-38.1 of Ordinance 7100, (b) Section 11-38.3 of Ordinance 7100 of Kansas City, Missouri, (c) Section 11-1, "Defining Business Districts," (d) Section 11-4, subhead H, of Ordinance 7100 of Kansas City, Missouri, for the reason that said subsections of Ordinance 7100 of Kansas City, Missouri, were in truth and fact the controlling ordinance governing and regulating the speed and operation of streetcars on Twelfth Street at the time and place in question and authorized a speed of twenty-five miles per hour by streetcars. Same citations as Point (10). (13) The court erred to the prejudice of the defendant in overruling defendant's motion to exclude the plaintiffs' young daughter from the courtroom during the trial as she was not a party to the suit and her continued presence could only serve to arouse sympathy for the plaintiffs. Bryant v. Kansas City Rys., 228 S.W. 472, 282 Mo. 342; Riepe v. Green, 65 S.W.2d 667. (14) The defendant was greatly prejudiced and sympathy was created in favor of the plaintiffs when the young child witness, Deloris Frakes, was placed on the stand as a witness and in the presence of the jury in the course of her testimony cried. Pearson v. Kansas City, 78 S.W.2d 81, 331 Mo. 885. (15) The court erred in denying defendant a new trial in this case because on the record as a whole it would appear that the jury became highly sympathetic with plaintiffs and prejudiced against defendant so that defendant was deprived of a fair and impartial trial; that the verdict of the jury was grossly excessive under the evidence in this case and wholly out of line and excessive when compared with comparable cases and rulings of the courts of this state; the excessive verdict reflects sympathy for the plaintiff.

Gilbert R. Titus, William F. Knowles, Paul C. Sprinkle and Sprinkle & Knowles for respondents.

(1) The court did not err in giving plaintiffs' Instruction 1 because the instruction referred to ordinances which were in full force and effect and because the instruction did not make the defendant an insurer. Clardy v. Kansas City Pub Serv. Co., 42 S.W.2d 370, 227 Mo.App. 749; Petty v. Kansas City Pub. Serv. Co., 191 S.W.2d 653. (2) The court did not err in giving plaintiffs' Instruction 2. Meeker v. Union Electric L. & P. Co., 216 S.W. 933, 279 Mo. 574. Evans v. Farmers Elevator Co., 147 S.W.2d 593, 347 Mo. 326; Grubbs v. Kansas City Pub. Serv. Co., 45 S.W.2d 71, 329 Mo. 390; Kirk v....