Reiling v. Russell

• Decision Date: 13 December 1939
• Docket Number: 35798
• Citation: 134 S.W.2d 33,345 Mo. 517
• Parties: A. L. Reiling, Jr., Appellant, v. Marian L. Russell and Barney M. Russell
• Court: Missouri Supreme Court

134 S.W.2d 33

345 Mo. 517

A. L. Reiling, Jr., Appellant, v. Marian L. Russell and Barney M. Russell

No. 35798

Supreme Court of Missouri

December 13, 1939

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Reversed and remanded.

Homer A. Cope, Cope & Hadsell and Walter A Raymond for appellant.

(1) The court erred in admitting evidence as to the receipt by appellant of payments under the Missouri Workmen's Compensation Law by appellant's employer when such evidence had no bearing on any issue in the case and was violently prejudicial to appellant. Harms v. Mutual Life Ins. Co., 127 S.W.2d 60; General Box Co. v. Mo Utilities Co., 331 Mo. 845, 55 S.W.2d 447; Scott v. Mo. Pac. Ry. Co., 333 Mo. 674, 62 S.W.2d 836; Lengle v. North Lebanon Tp., 274 Pa. 51, 117 A. 404; Coleman v. Hamilton Storage Co., 235 Ala. 553, 180 So. 557; Becker v. Eastern Mass. St. Ry. Co., 279 Mass. 435, 181 N.E. 760; Book v. Henderson, 176 Ky. 785, 197 S.W. 451; Hardy v. Muensch, 195 Ky. 398, 242 S.W. 586; Janis v. Jenkins, 58 S.W.2d 301; State v. Beatty, 94 S.W.2d 908; Goldsberry v. Farmers Mut. Fire & Lightning Ins. Co., 86 S.W.2d 583; Bellovich v. Griese, 100 S.W.2d 263; Wimp v. Early, 104 Mo.App. 85, 78 S.W. 345; Daniels v. Langensand, 231 Mo.App. 777, 96 S.W.2d 919; Bright v. Thatcher, 202 Mo.App. 301, 215 S.W. 791; Pogue v. Rosengrant, 98 S.W.2d 532; Grimm v. Globe Ptg. Co., 232 S.W. 679; Dillon v. Hunt, 105 Mo. 163, 16 S.W. 516; Matthews v. Mo. Pac. Ry. Co., 142 Mo. 645, 44 S.W. 805. (2) The court committed prejudicial and reversible error in giving Instruction D. (a) The facts appearing in this record do not afford a sufficient basis for a "sole cause" submission. Coleman v. Leahy, 125 S.W. 883; Hough v. C., R. I. & P. Ry. Co., 339 Mo. 1169, 100 S.W.2d 507; Thomas v. Scott, 114 S.W.2d 144. (b) Instruction D is erroneous as a "sole cause" instruction, in that it does not embody the "not due to the negligence of the defendant" provision, which is a necessary element of a proper "sole cause" instruction. McGrath v. Meyers, 341 Mo. 412, 107 S.W.2d 794. (c) Instruction D erroneously limited the driver's duty to act to the time she actually saw plaintiff, and erroneously eliminated from the consideration of the jury the duty of said driver to keep a lookout for the plaintiff. Miller v. Williams, 76 S.W.2d 356; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 378; Womack v. Mo. Pac. Ry. Co., 337 Mo. 1160, 88 S.W.2d 370; Blunk v. Snider, 342 Mo. 26, 111 S.W.2d 164; Mayfield v. Kansas City So. Ry. Co., 337 Mo. 79, 85 S.W.2d 123; Jones v. C., R. I. & P. Ry. Co., 341 Mo. 640, 108 S.W.2d 98. (d) Instruction D is prejudicially erroneous in that it narrows the danger zone to the part of defendant's automobile. Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S.W.2d 812; Martin v. Fehse, 331 Mo. 861, 55 S.W.2d 441; Hawken v. Schwartz, 72 S.W.2d 879; Collins v. Beckmann, 79 S.W.2d 1056.

Wm. F. Knowles, Paul C. Sprinkle and Sprinkle & Knowles for respondents.

(1) The court did not err in admitting evidence with respect to the time appellant received compensation and the time he returned to the payroll because that evidence was competent as affecting appellant's claim for damages. Rice v. Transit Co., 186 S.W. 568; Kamoss v. Ry. Co., 202 S.W. 434; Freeman v. Kansas City Pub. Serv. Co., 30 S.W.2d 176; Span v. Mining Co., 16 S.W.2d 201; Brookfield v. Drury College, 123 S.W. 95; Lareau v. lareau, 208 S.W. 244; Grodsky v. Consolidated Bag Co., 26 S.W.2d 620; Harms v. Ins. Co., 127 S.W.2d 57; General Box Co. v. Utilities Co., 55 S.W.2d 442; Scott v. Railroad Co., 62 S.W.2d 834; Janis v. Jenkins, 58 S.W.2d 298; State v. Beatty, 94 S.W.2d 907; Goldsberry v. Ins. Co., 86 S.W.2d 578; Bellovitch v. Griese, 100 S.W.2d 261; Wimp v. Early, 78 S.W. 343; Daniels v. Langensand, 96 S.W.2d 911. (2) The court did not commit error by giving Instruction D. Borgstede v. Waldbauer, 88 S.W.2d 378; Shaw v. Fulkerson, 96 S.W.2d 495; Hough v. Railroad Co., 100 S.W.2d 499; Collins v. Leahy, 125 S.W.2d 875; Thomas v. Stott, 114 S.W.2d 142; Smithers v. Barker, 111 S.W.2d 47; Buehler v. Festus Mercantile Co., 119 S.W.2d 970.

OPINION

Hays, P. J.

Appellant, who was plaintiff in the court below, seeks to recover damages for personal injuries received in an automobile accident which occurred in September, 1936, in Kansas City. Plaintiff, a pedestrian, was crossing McGee Street trafficway a short distance south of its intersection with Twentieth Street when he was struck and knocked down by an automobile driven by the defendant Marian L. Russell. The car belonged to Mrs. Russell's husband and co-defendant, Dr. Barney M. Russell, and at the time he was riding with her. It seems conceded that Mrs. Russell was driving the car as her husband's agent and was acting within the scope of her authority as such.

The evidence bearing upon the facts of the accident may be summarized as follows: McGee Street runs north and south and is crossed by Twentieth Street which runs east and west. The southwest corner of this intersection is occupied by a Conoco Filling Station. West of the Filling Station on Twentieth Street and extending to Grand Avenue is a retail establishment of the Firestone Service Stores in which plaintiff was employed in September, 1936. The drive into the Conoco Station enters from McGee Street and the north line of the south part of this drive is fifty feet south of the intersection of McGee and Twentieth Streets. Beyond this drive is a restaurant. Across McGee Street from the Filling Station there is located a "Shanty" used by the Kansas City Terminal Railway.

On September 12, 1936, plaintiff was instructed by one Quinn, his immediate superior, to go to the railroad shanty and take a bill of lading for the purpose of having an empty tank car released. He left the back door of the Firestone Building, passed through the Conoco property, and emerged into McGee Street some distance south of the intersection. Plaintiff says he entered the street from the Conoco Drive above mentioned, but defendants' evidence tends to show that he came out directly in front of the restaurant. Defendants state that plaintiff jumped out suddenly from between certain cars which were parked on McGee Street in front of the restaurant; that he started to run or trot across the street and upon getting directly in front of defendants' car he stopped momentarily. Plaintiff says that he was walking at his usual gait; that he looked both ways before entering the street, and then started to walk directly across it, when he was struck by the defendants. Be that as it may, defendants' automobile, approaching from the north, stopped for a moment at Twentieth Street and then came on south and struck the plaintiff. Defendants' automobile was following another car which preceded it at a distance of about twenty feet. Plaintiff says that the point of impact was the approximate center of McGee Street, but defendants place the collision some five to eight feet west of the center line. It is defendants' contention that as soon as Mrs. Russell saw the plaintiff she applied her brakes and came to a stop as soon as possible. The car actually stopped a few feet south of the point at which it hit plaintiff. Plaintiff was struck by the left portion of defendants' automobile and, had the car been swerved to the right some eighteen inches or two feet, the collision would not have occurred. The evidence is conflicting as to whether this deflection in course could have been accomplished by Mrs. Russell after she saw the plaintiff or, by the exercise of proper care, could have seen him. The speed of defendants' car is estimated by plaintiff's witnesses at thirty miles an hour and by those of the defendants at fifteen.

The petition alleges that plaintiff received numerous injuries to his back, head, extremities and internal organs; that on account of such injuries he suffered great pain and had been disabled, "and will so suffer and be disabled in the future;" that his injuries were "severe, permanent and progressive;" that he had suffered a loss of earnings.

After the accident plaintiff received emergency treatment in the General Hospital in Kansas City, Missouri, and was removed from said hospital in a short time to the Providence Hospital in Kansas City, Kansas, where he stayed for eight days. After this he was taken to the home of his mother-in-law and was there confined to bed for four weeks. He did not return to work until December 15th, after which he attempted to do some light work but was not put back on the payroll until the first of January, 1937. He continued rather unsuccessfully to try to work during January, but had to quit toward the end of the month because of the pain from his injuries. The case was tried during the latter part of February.

Although the petition contained several assignments of primary negligence, in addition to an assignment of negligence under the humanitarian doctrine, plaintiff went to the jury upon the latter assignment only. There was a verdict and judgment for both defendants and plaintiff appealed therefrom. In this status of the case, the petition having sought judgment for $ 25,000 and the defendants having prevailed below, the amount in dispute is that sum, and fixes the appellate jurisdiction in this court.

Appellant makes two assignments of error: (1) The reception by the trial court of evidence elicited by the defendants that plaintiff had received payments from his employer under the Workmen's Compensation Act growing out of the accident here in suit; (2) The giving of Instruction "D" requested by the defendants.

I. When the case was called for trial, and before the impaneling of the jury, plaintiff's counsel stated to the court that plaintiff had drawn compensation...