Prichard v. Dubinsky

• Citation: 89 S.W.2d 530,338 Mo. 360
• Decision Date: 11 January 1936
• Docket Number: 33320
• Parties: Maude Lorraine Prichard v. Edward Dubinsky, Appellant
• Court: United States State Supreme Court of Missouri

89 S.W.2d 530

338 Mo. 360

Maude Lorraine Prichard v. Edward Dubinsky, Appellant

No. 33320

Supreme Court of Missouri

January 11, 1936

Rehearing Overruled January 11, 1936.

Appeal from Jackson Circuit Court; Hon. A. Stanford Lyon Judge.

Affirmed (upon condition).

I J. Ringolsky, Wm. G. Boatright, Harry L. Jacobs and Ringolsky, Boatright & Jacobs for appellant.

(1) Said instruction authorizes a verdict for the plaintiff, simply upon nine or more jurors' concurrence, without requiring their finding the existence of any of the specific facts necessary for recovery, and without requiring the jury to find any of the elements essential to plaintiff's recovery. Bailey v. Ormsby, 3 Mo. 580; Cleaveland to the Use of Case and Marks v. Davis, 3 Mo. 331; State ex rel. Security Ins. Co. v. Trimble, 318 Mo. 173, 300 S.W. 814; Allen v. St. Louis Transit Co., 183 Mo. 411, 81 S.W. 1142; Hoffman v. Parry, 23 Mo.App. 30; Hurley v. Mo. Pac. Trans. Co., 56 S.W.2d 623; State ex rel. Hurley v. Becker, 66 S.W.2d 526; Taylor v. Mo. Natl. Gas Co., 67 S.W.2d 109; Williams v. Harrison, 3 Mo. 411; Fugate & Young v. Carter, 6 Mo. 273; Bank v. Murdock & Armstrong, 62 Mo. 73; Crews v. Lackland, 67 Mo. 620; Raysdon v. Trumbo, 52 Mo. 38; Birtwhistle v. Woodward, 95 Mo. 118; Greer v. Parker, 85 Mo. 111; Phelan v. Paving Co., 227 Mo. 713, 127 S.W. 318; Stuart v. Dickinson, 290 Mo. 519, 235 S.W. 446; Butcher v. Death & Teasdale, 15 Mo. 274; Highfill v. Independence, 189 S.W. 802; Keppler v. Wells, 238 S.W. 429; Lafayette Bank v. Metcalf, 29 Mo.App. 395; Lesser v. Ry. Co., 85 Mo.App. 326; Fleischmann v. Miller, 38 Mo.App. 181; Sec. 8768, R. S. 1929. (a) Said instruction is not plain, clear or explicit, but is confusing, ambiguous and indefinite. Bailey v. Ormsby, 3 Mo. 580; Cleaveland to the Use of Case and Marks v. Davis, 3 Mo. 331. (b) Said instruction virtually authorized a verdict on any theory the jury could construct or evolve out of their own minds. Allen v. St. Louis Transit Co., 183 Mo. 411, 81 S.W. 1142; Hurley v. Mo. Pac. Trans. Co., 56 S.W.2d 620; State ex rel. Hurley v. Becker, 66 S.W.2d 526. (2) The court erred in permitting plaintiff to amend her petition over defendant's exceptions after all the evidence was in, increasing the amount of damages prayed for from $ 10,000 to $ 20,000. This point was preserved in paragraph 3 of defendant's motion for new trial. (a) The permission to amend was arbitrary, an abuse of the court's discretion, and not in furtherance of justice. Joyce v. Growney, 154 Mo. 253, 55 S.W. 466. (b) No reason was presented or appears in the record for said amendment and no excuse was offered for the delay in requesting same. Joyce v. Growney, supra; Kenney v. South Shore Natl. Gas & Fuel Co., 110 N.Y.S. 503; 49 C. J. 528, sec. 699. (c) The court by its action in reducing the verdict from $ 15,000 to $ 12,000 judicially ruled in this very case that the maximum damages allowable were $ 12,000, hence it was erroneous to allow an amendment in the prayer submitting damages up to $ 20,000.

James R. Sullivan and Arthur R. Wolfe for respondent.

(1) Defendant was negligent as a matter of law in failing to keep a reasonable lookout while turning his automobile, since he judicially admitted such negligence in his answer and also in his oral testimony. In view of defendant's binding admissions of liability, the plaintiff was entitled to a directed verdict except on the issue of contributory negligence and the measure of damages. Being negligent as a matter of law, he could be prejudiced by no error in the trial bearing on the issue of liability. State ex rel. Boatmen's Natl. Bank v. Webster Groves Sewer Dist., 327 Mo. 594, 37 S.W.2d 908; Allen v. Purvis, 30 S.W.2d 200; Stein v. Rainey, 286 S.W. 57; Hornbuckle v. McCarty, 243 S.W. 329; Hook v. Ry. Co., 162 Mo. 581, 63 S.W. 360; Hayden v. Ry. Co., 124 Mo. 573; Kingsbury v. Joseph, 68 S.W. 95; Thompson v. Smith, 253 S.W. 1028; Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 23; Cornoyer v. Oppermann Drug Co., 56 S.W.2d 614; Secs. 821, 1062, R. S. 1929; Dorman v. Ry. Co., 75 S.W.2d 854; Lister v. Tyler, 69 S.W.2d 633; Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543. (2) There was no error in overruling defendant's demurrer to the evidence. (a) Defendant's demurrer to the evidence was properly overruled because, as shown by the record herein, there was substantial evidence tending to prove that no signal was given by defendant of his intention to make a left-hand turn. Grubbs v. K. C. Pub. Serv. Co., 329 Mo. 390, 45 S.W.2d 74; Young v. Wheelock, 64 S.W.2d 954; Biondi v. Central Coal & Coke Co., 9 S.W.2d 597; Independence Elec. Co. v. Farley Bros., 192 S.W. 129; Van Hafften v. Clayton, 259 S.W. 533; Storey v. Peoples Motor Bus Co., 327 Mo. 719, 37 S.W.2d 898; O'Bauer v. Katz Drug Co., 49 S.W.2d 1073. (b) Defendant's demurrer to the evidence was properly overruled because plaintiff concededly made a submissible case on at least four of her charges of negligence. Young v. Wheelock, 64 S.W.2d 953; Moyer v. Ry. Co., 198 S.W. 842; Plummer v. Ford, 208 S.W. 491; Gannon v. Laclede Gaslight Co., 145 Mo. 512, 46 S.W. 968, 47 S.W. 907; Schroeder v. Wells, 310 Mo. 642, 276 S.W. 63; Byrd v. Railroad Co., 46 S.W.2d 222; Irvin v. Kelting, 46 S.W.2d 925; Klaber v. Royal Exchange Assur., 48 S.W.2d 68. (c) At no stage of the trial below did the defendant direct the trial court's attention specifically to the contention made here that plaintiff did not make a submissible case on the charge of negligence that defendant did not give a signal for a left-hand turn. Nor did the defendant save his exception below to any adverse ruling of the court on this issue. The general demurrer to the evidence did not call this point directly to the attention of the trial court, nor was the overruling of the demurrer a specific ruling on such point which would preserve it for review. Chinn v. Naylor, 182 Mo. 583, 81 S.W. 1109; Pulsiper v. Albany, 47 S.W.2d 236; Peterson v. Railroad Co., 265 Mo. 480; Powell v. Railroad Co., 164 S.W. 628, 255 Mo. 454; Young v. Wheelock, 64 S.W.2d 956; Dorman v. Ry. Co., 75 S.W.2d 854; State ex rel. v. Trimble, 39 S.W.2d 375; R. S. 1929, sec. 1061; Williams v. Williams, 259 Mo. 242, 168 S.W. 618; Heinbach v. Heinbach, 274 Mo. 301, 202 S.W. 1127; Springfield v. Smith, 19 S.W.2d 9; Polsky v. St. Louis, 264 Mo. 458, 175 S.W. 197; Greer v. Carpenter, 19 S.W.2d 1046; Britt v. Crebo, 199 S.W. 154; Rookenstein v. Rogers, 326 Mo. 468, 31 S.W.2d 801; Torrence v. Pryor, 210 S.W. 430; Schroeder v. Wells, 310 Mo. 642, 276 S.W. 63; Kinlen v. Met. St. Ry. Co., 216 Mo. 145, 115 S.W. 533; Rothschild v. Barck, 324 Mo. 1121, 26 S.W.2d 760; Kansas City & G. Ry. Co. v. Haake, 331 Mo. 429, 54 S.W.2d 894; Young v. Wheelock, 64 S.W.2d 956. (3) There was no error in Instruction 2 given of the court's own motion, stating the number of jurors necessary to return a verdict and the manner or form of returning the same. Sec. 28, Art. 2, Const. of Mo.; Sharp v. Biscuit Co., 179 Mo. 553, 78 S.W. 787; Kelley-Goodfellow Shoe Co. v. Sally, 114 Mo.App. 227, 89 S.W. 889; Ritschy v. Garrels, 195 Mo.App. 676, 187 S.W. 1120; Sec. 8768, R. S. 1926; Smith v. So. Ill. & Mo. Bridge Co., 30 S.W.2d 1077, 326 Mo. 109; Cape Girardeau v. Hunze, 284 S.W. 471, 314 Mo. 438; Randol v. Kline's Inc., 49 S.W.2d 116; Neal v. Caldwell, 34 S.W.2d 104; Shinn v. Railroad Co., 648 Mo. 182, 154 S.W. 103; Luikart v. Miller, 48 S.W.2d 870; Rose v. Mo. Dist. Tel. Co., 43 S.W.2d 570.

OPINION

Gantt, P. J.

Action for personal injuries. The collision occurred at the intersection of Main and Pershing streets in Kansas City, Missouri. The automobile in which plaintiff was riding moved north on Main Street, and defendant's automobile moved south on said street. At the intersection the defendant made a left turn and collided with the northbound car. The five assignments of negligence submitted included an assignment that defendant negligently failed to give warning of a left turn. Judgment for $ 12,000.

I. Defendant contends that there was no evidence to support said assignment. On the question he testified that the window of the left door of his car was open and that he extended his arm through the window and pointed downward as indicating an intention to make a left turn. On the contrary, there was evidence tending to show that immediately after the collision the window of the left door of defendant's car was closed. The question was for the jury. Furthermore, the question was not mentioned in the motion for a new trial.

II. Defendant also contends that part of a hypothetical question invaded the province of the jury. At the trial he objected to the question as a whole. He should have directed the court's attention to the part challenged as invading the province of the jury. Furthermore, this question also was not mentioned in the motion for a new trial.

III. Defendant also contends that the court should not have permitted plaintiff to amend the petition at the close of the evidence by increasing the $ 10,000 prayed for as damages to $ 20,000. The amendment was not made in the presence of the jury.

The record presents no reason for the amendment. The petition specified many severe injuries sustained by plaintiff. There was evidence tending to sustain only a few of the specifications of injury. On the record we do not think the amendment should have been permitted. The amendment of pleadings at the close of the evidence, without explanation or reason, should not be encouraged. However, the prejudice, if any, may be remedied on consideration of the verdict.

IV. Defendant also contends that the instruction directing the jury that nine or more jurors could return a verdict was erroneous and prejudicial.

In this connection he directs attention to the submission...