Polk v. Krenning

• Decision Date: 07 February 1928
• Docket Number: No. 20112.,20112.
• Citation: 2 S.W.2d 107
• Parties: POLK v. KRENNING et al.
• Court: Missouri Court of Appeals

2 S.W.2d 107

POLK v. KRENNING et al.

No. 20112.

St. Louis Court of Appeals. Missouri.

February 7, 1928.

Rehearing Denied, with Modification February 24, 1928.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by Lillie B. Polk, administratrix of Mary Louise Polk, deceased, against Anna Krenning and another. Judgment for plaintiff, and defendants appeal. Affirmed.

T. M. Pierce and Samuel H. Liberman, both of St. Louis, for appellant Hess.

Fred H. Blades, of St. Louis, for appellant Krenning.

Watts & Gentry, of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for the wrongful death of Mary Louise Polk. The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff, against both defendants, for $5,000. From this judgment the defendants have separately appealed to this court. The appeals have been consolidated here, and will be disposed of accordingly.

The defendants complain here of the refusal of the court to give an instruction in the nature of a demurrer to the evidence, and also an instruction limiting the plaintiff's recovery to nominal damages. This complaint is grounded on the contention that there was no evidence to show any substantial pecuniary loss on the part of the surviving relatives of deceased resulting from her death. Defendants also complain that, though the evidence be regarded as sufficient to show a substantial pecuniary loss, the verdict is nevertheless excessive.

The accident which resulted in the death of the deceased occurred on December 29, 1924, at about 4 o'clock in the afternoon, at the intersection of Newstead avenue and Forest Park boulevard, in the city of St. Louis. Newstead avenue is 36 feet wide. Forest Park boulevard is 110 feet wide. There is a parkway in the center of the boulevard. The parkway is 50 feet wide from curb to curb. The driveway south of the parkway is 30 feet wide from curb to curb. The driveway north of the parkway is 30 feet wide from curb to curb. East-bound traffic uses the south driveway, and west-bound traffic uses the north driveway. There are no street car tracks on either of these streets. The streets were covered with ice, and were very slick, at the time of the accident, and had been in that condition for a week or ten days. This condition existed generally throughout the city. At the time of the accident defendant Hess was driving a light Ford truck, which he owned, and James Holster, in the employ of defendant Krenning as her chauffeur, was driving a Dorris limousine, which she owned. Hess drove south on the west side of Newstead avenue at a speed of about 25 miles per hour. Holster drove east on the south side of Forest Park boulevard at about the same speed. Both vehicles ran into the intersection without any slackening of speed, and collided with each other, with a loud crash, at a point in the intersection about 18 feet from the southeast corner thereof. At that time the deceased was walking east on the sidewalk just east of said southeast corner. When the collision occurred the Ford was spun around and thrown across the sidewalk where the deceased was walking. When the Ford stopped the front end was toward the north and the rear end was on the terrace south of the sidewalk. When the limousine stopped, it was standing in the south driveway of the boulevard just east of the intersection, and was headed toward the west. After the collision the deceased was found lying on the terrace under the rear end of the Ford in an unconscious condition, and died the same evening without regaining consciousness.

Hess testified that as he approached the intersection he saw the limousine about 500 feet west of the intersection, and that he did not see it again until after the collision occurred. Holster, the chauffeur of the limousine, testified that he did not see the truck until after he had crossed the west curb line of Newstead avenue and the truck had arrived at a point in the intersection about on the center line of Forest Park boulevard, too late to avoid the collision. There was nothing at or near the intersection to obstruct the view from the one vehicle to the other as they approached the intersection. Both Hess and Holster were familiar with the icy and slick condition of the streets, which had existed for a week or ten days prior to the accident. Holster testified that there were no skid chains on the limousine he was driving. Hess testified that he did not know whether there were skid chains on his truck or not.

The deceased resided at St. Joseph, Mo., and was visiting her brother in St. Louis at the time she met her death. She and her sisters, Lillie B. Polk and Sarah Polk, owned a residence at 1804 Spring avenue, St. Joseph, and the three sisters lived together in this residence. The residence contained 12 rooms and three halls. The three sisters named occupied 6 of the rooms, and the other rooms were rented out. Another sister, who, it seems, was a widow, lived with them a part of the time. Sarah and Mary Louise had a small stamping and embroidering business. Lillie was a teacher in the public schools of St. Joseph. Her duties as teacher required her to be absent from the home during the greater part of the day. Mary Louise was 55 years old at the time of her death. Lillie was 53, and Sarah was 65. Mary Louise was regarded as the mother in the household. She was business manager. She attended to the cooking and the cleaning of the house, and was general manager of everything about the home. She had exclusive charge of the shopping and such things for the household, and waited on the customers in the stamping and embroidering business. She attended to the renting of the rooms and to the care of the rooms for the roomers. She was in good health at the time she met her death. Sarah was very deaf, and was incapacitated to transact any business on that account. The amount of income that was taken in as a result of the renting of the rooms and the stamping and embroidering work averaged about $150 per month, which was used as a fund to keep up the household, on which the three sisters lived. This arrangement between these sisters had existed for about five years. Formerly another sister lived with them. Mary Louise had been the manager of the household for 20 years.

The cause of action allowed by the Wrongful Death Statute is not the commonlaw cause of action, which would have accrued to the deceased if death had not ensued, transmitted to the surviving parties, as was formerly held, but is a new cause of action created by the statute and unknown to the common law. State ex rel. Thomas v. Daues, 314 Mo. 13, 283 S. W. 51, 45 A. L. R. 1466. So that in the creation of this new cause of action a measure of recovery was prescribed by the statute suited to the new cause of action thus created. In cases arising under section 4217, R. S. 1919, the recovery prescribed is a penalty, the amount of which, within designated limitations, is left to the discretion of the jury; and it is held that in the exercise of this discretion the jury may take into consideration the acts or omissions constituting negligence, or evidencing criminal intent, with their attendant circumstances, including the pecuniary injury inflicted upon the surviving parties, if any. Pedigo v. St. Louis-San Francisco Ry. Co. (Mo. App.) 299 S. W. 110, loc. cit. 113.

Sections 4218 and 4219, under which the present case arises, prescribe that in every action for the death of a person caused by the wrongful act,...