Reed v. Coleman

• Decision Date: 14 December 1942
• Docket Number: No. 20229.,20229.
• Citation: 167 S.W.2d 125
• Parties: REED v. COLEMAN et al.
• Court: Missouri Court of Appeals

167 S.W.2d 125

REED v. COLEMAN et al.

No. 20229.

Kansas City Court of Appeals. Missouri.

December 14, 1942.

Appeal from Thirty-fourth Circuit Court, Callaway County; W. M. Dinwiddie, Judge.

"Not to be published in State Reports."

Action by Anna Reed against Alvin Coleman and others for injuries received when automobile in which plaintiff was a guest was struck by automobile driven by named defendant's employee. From a judgment for plaintiff, defendants appeal.

Affirmed.

Irwin, Bushman & Buchanan, of Jefferson City, and T. A. Faucett, of Fulton, for appellants.

Howard F. Major and Ralph L. Alexander, both of Columbia, and Baker & Baker, of Fulton, for respondent.

BOYER, Commissioner.

This action arose out of an automobile collision between a Pontiac car in which plaintiff was riding as a passenger with her husband, and a Plymouth car driven by one John Tibbs who was at the time in the employ of defendant Coleman, a taxicab operator, and within the scope of his employment. The collision occurred at the intersection of Fourth Avenue and Grand Avenue in the City of Columbia. The negligence on the part of defendants was alleged to be a high, dangerous and excessive rate of speed of the Plymouth automobile under the circumstances; the violation of a city ordinance limiting speed at street intersections to 15 miles per hour; a failure to slacken speed or divert the course of the Plymouth car when there was danger of collision; a failure to keep a lookout for other vehicles and persons on and along said street; and negligence under the humanitarian rule.

The answer admits that Grand Avenue and Fourth Avenue are intersecting public streets and thoroughfares in the City of Columbia; that at the time of the alleged injury plaintiff was riding as a passenger in a Pontiac automobile being driven in a westerly direction over and along Fourth Avenue by her husband; that defendant John Tibbs was in the employ of the defendant Alvin Coleman, and was then and there acting in the performance of his duties and within the scope of his employment in operating the Plymouth automobile; that the two cars mentioned came into contact within said intersection; and admits "that plaintiff was shaken up in said collision," but denies that she received the injuries or any part thereof as set out in her petition; that the same or any part thereof are permanent, and alleges that the pain from which plaintiff is now suffering is due to causes other than the collision; denies that any act or omission on the part of defendants was the proximate cause of the collision or any injury or damage to plaintiff; and denies generally and specially all acts of negligence charged. The answer further alleges that if plaintiff was injured in the collision the same was the proximate result of her own contributory negligence and that she was negligent in failing to exercise ordinary care to keep a proper lookout to see the approach of the Plymouth and to warn the driver of the Pontiac at a time when plaintiff saw or by the exercise of ordinary care could have seen same and have warned the driver of the Pontiac of its approach so as to enable him to avoid the collision by stopping the Pontiac, increasing the speed or diverting the course of same from the path of the Plymouth; in failing to warn the driver of the Pontiac to yield the right of way in said intersection to the Plymouth approaching said intersection on the right and at approximately the same time; in failing to warn the driver of the Pontiac to stop at the stop sign facing plaintiff on Fourth Avenue; in failing to warn the driver of the Pontiac to bring the automobile to a full and complete stop at the stop sign near the east line of said intersection, which the driver failed to do contrary to ordinance provisions. The answer further alleges that the Pontiac was suddenly and without warning driven into the path of the Plymouth, and that defendant Tibbs was suddenly confronted by imminent peril, and without time to think or act otherwise he attempted to stop and to avoid injury to himself and others and in his excitement and confusion collided with the Pontiac "without any fault or negligence on his part."

The reply denies all allegations of the answer except admissions of allegations in plaintiff's petition.

Upon submission to the jury there was a unanimous verdict for plaintiff in the sum of $1,500. Judgment was entered accordingly and the defendant duly appealed. Points for consideration include the alleged error of the court in overruling defendants' objections to the manner in which additional jurors were summoned to complete the panel for the trial of the case; the rulings of the court upon defendants' demurrer; the giving and refusal of instructions; the admission of evidence; and the final complaint that the verdict is excessive. The evidence will be stated in connection with the review of the questions raised.

The first alleged error has reference to the manner in which extra jurors were called in to fill vacancies on the jury panel. When the case was called for trial only sixteen members of the regular panel of jurors were present. The court ordered the sheriff to summon extra jurors. Five extra jurors were summoned from the township in which the trial was being held and two of such extra jurors were placed on the panel to make the required number of eighteen. After the challenges to the jury were made one of such extra jurors remained on the panel of twelve to try the case. After the vacancies on the panel had been filled and before the jury was sworn, defendants' counsel objected to going to trial because of the absence of certain jurors whose names were on the regularly drawn panel and because no lawful reason appeared for their absence, and counsel claimed that defendants were entitled to have an effort made to obtain the presence of the absent jurors or, in the event of their excusable absence, that the vacancies must be filled by summoning the alternates from the townships where the vacancies occurred, as provided in § 707 R.S.1939, Mo.R.S.A. § 707. This section of the statute provides a method for filling vacancies on the regular panel for a term or part of term of court by selecting an alternate or alternates from the township or townships in which an absent juror or jurors reside, or for the selection of alternate petit jurors in the order in which their names were drawn by the county court, but the concluding part of this section reads:

"Provided, that if it shall be necessary to fill vacancies in the jury panel for the trial of any one case the court may in its discretion order the sheriff to summon from the bystanders a sufficient number of qualified persons to fill such vacancies in such case."

It has been expressly ruled in many cases that vacancies in the jury panel may be filled under the above provision by summoning bystanders for a particular case to be tried, and that it is unnecessary that said vacancies be filled by alternate petit jurors who may have been designated as such for a regular panel, and that there would be no error in such proceeding unless prejudice to the complaining party is shown to have occurred. State v. Wheeler, 318 Mo. 1173, 2 S.W.2d 777; State v. Boone, Mo.Sup., 289 S.W. 575; State v. Hancock, 320 Mo. 254, 7 S.W.2d 275; State v. Hamilton, 340 Mo. 768, 102 S.W.2d 642. The last case cited upholds the authority of the trial court to order the sheriff to select extra jurors for any particular case whenever deemed necessary under the provisions of § 8760, R.S.1929, which is the same as § 711, R.S.1939, Mo.R.S.A. § 711. The concluding part of this section reads:

"Whenever a greater number of petit jurors are required than the regular panel, or in case any juror shall fail to attend at the term required, the court may order the sheriff or other proper officer to summon a sufficient number of jurors as the occasion may require."

It appears from the brief and argument of appellants' counsel that they have failed to discriminate between the selection of extra jurors for use on a standing panel and the selection of such jurors for use only in the trial of a particular case. They cite State v. Rouner, 333 Mo. 1236, 64 S.W. 2d 916, 92 A.L.R. 1099, and Berry v. Trunk, 185 Mo.App. 495, 172 S.W. 729, as their Missouri authorities in support of the contention made. Both of these cases presented a situation where the challenge was to the array and questioned the legality of the method in which the regular panel of jurors was chosen. They are not in point. There is no showing that the defendants were prejudiced in any respect by the manner in which vacancies on the jury were filled in this case, and there was no error in the manner in which the trial judge ordered and obtained extra jurors.

At the close of plaintiff's case, defendants' demurrer was overruled. Defendants did not stand upon the demurrer thus offered but proceeded with the case and offered evidence. At the close of all the evidence defendants again offered an instruction in the nature of a demurrer to the evidence which was refused. The ruling in both instances is assigned as error. The first demurrer was waived, and the question of the propriety of the ruling on the last demurrer calls for a search of all the evidence and permissible inferences favorable to plaintiff that would support a submissible case. Smith v. Kansas City Public Service Co., 328 Mo. 979, loc. cit. 990, 43 S.W.2d 548.

The evidence of record shows that Grand Avenue extending north and south, and Fourth Avenue extending east and west are intersecting public streets in the City of Columbia; that both of said streets are of a total width of 40 feet, and that both, in the traveled portion thereof, were at the time in question covered by hard-surfaced pavement, commonly called black top, for a width of 17 feet. There was no curbing or guttering on either street. Plaintiff and her husband seated in the front seat...