Renner v. Wolverton

• Citation: 273 S.W.2d 325
• Decision Date: 08 November 1954
• Docket Number: No. 43613,No. 1,43613,1
• Parties: Agnes Margaret RENNER, as Executrix of the Estate of William Renner, Deceased, Plaintiff-Respondent, v. Mary WOLVERTON, Defendant-Appellant
• Court: United States State Supreme Court of Missouri

Page 325

273 S.W.2d 325

Agnes Margaret RENNER, as Executrix of the Estate of William

Renner, Deceased, Plaintiff-Respondent, v. Mary WOLVERTON, Defendant-Appellant.

No. 43613.

Supreme Court of Missouri, Division No. 1.

Nov. 8, 1954.

Rehearing Denied and Opinion Modified on Court's Own Motion

Dec. 13, 1954.

Spurgeon L. Smithson, Kansas City, for appellant.

Clay C. Rogers, Lyman Field, Jack B. Robertson, Rogers, Field & Gentry, Kansas City, Cyril G. Baucke, Kansas City, for respondent.

LOZIER, Commissioner.

William Renner (hereinafter sometimes called plaintiff) had a verdict and judgment for $30,000 against Mrs. Mary Wolverton (herein called defendant) in his suit for damages for personal injuries sustained in a collision between his truck driven by him and an automobile driven by her. Renner died and his widow and executrix, Mrs. Agnes Margaret Renner, was substituted as the party plaintiff.

Defendant contends that the trial court erred in failing to sustain its motions for a directed verdict, in giving and refusing instructions, in admitting and excluding evidence, and in permitting improper and prejudicial conduct by plaintiff's counsel. Defendant also contends that the verdict is excessive.

The time was shortly after 12 noon, Saturday, May 13, 1950, a bright clear day. The site was the intersection of Armour Road and Ozark Street in North Kansas City. Armour runs east-west. Ozark intersects Armour from the north but does not run south of Armour. Both streets are straight and level. The Ozark pavement extended south to the Armour pavement and 'flared outward' between the north Armour right-of-way line and the Armour pavement. On the east and west sides of that approximate triangle were combination gutters and curbs. On the north side of Armour was a 20 foot pavement for two 10 foot westbound travel lanes. South of those lanes (except in the intersection itself) was a 30 foot dirt strip separating the westbound and eastbound lanes. North of the two westbound lanes was an earth shoulder and a small U-shaped highway ditch. East of Ozark on the Armour shoulder, about 10.5 feet from the north edge of the Armour pavement, was a 'bus stop' sign. West of Ozark on the Armour shoulder was a tree, 24 inches in diameter, 2-3 feet from the north edge of the Armour pavement and 2-3 feet from the west edge of the Ozark pavement. Some 5-6 feet northeast of the tree, almost at the edge of the Ozark pavement, was a street light pole, with a guy wire, the lower part of which was several feet west of the pole and, apparently, due north of the tree.

Both Renner and defendant were driving west. There were no other cars on the highway in the vicinity. The collision occurred in the Armour north westbound lane at about the center of Ozark. The car was stopped within a few feet. The truck turned over three times and stopped, on its side, in the medial dirt strip west of the intersection.

Plaintiff's evidence was, and he submitted his case upon the theory that, as he was driving in the north westbound lane, defendant drove up beside him in the south westbound lane, dropped back a little, turned to her right and struck his truck 'at or near the left rear thereof' (Instruction 1). Defendant's evidence was that she had previously passed the truck and had returned to the north westbound lane; that, as she neared the intersection and after she had slowed down and signaled a right-hand turn, Renner, driving on the shoulder, attempted to pass her on the right. Her photographic evidence and the testimony of some of her witnesses, was that the collision was between the right wing of her front bumper and her right front fender and the truck's left rear fender. And the jury could have inferred that the right wing of her fender struck the hub of the truck's left rear wheel.

Renner and Mrs. Renner testified that, as the truck approached Ozark, defendant drove up 'alongside of, just about even with' the truck. He was in the north westbound lane and defendant was in the south. They were going about the same speed, about 25 m. p. h. Defendant did not pass the truck nor 'cut in front of the truck.' About 30 feet east of Ozark, defendant turned her car toward the truck. Renner 'made a short cut to the right to avoid her hitting me. * * * And my front wheel got into the intersection good, and something hit me I didn't see.' The impact came 'from behind me some place or other.' Renner had no recollection of events thereafter. The front end of the car was never up to the front end of the truck. 'She slackened speed and made a turn like she was going to cut into the side of me, and then she dropped back, there was an impact on the rear end some place or other. All I know is that I heard it and felt it. * * * I didn't know nothing afterwards. * * * She looked as though she was going to turn into the side of me right at the cab where I was sitting.' Renner did not know how far 'she cut over' and did not think that he 'ever got off the pavement at all.'

According to Mrs. Renner, Renner swerved to his right about 20-25 feet from the intersection. The impact came just as the truck was entering the intersection. She did not know if the car was 'alongside' at the time. 'The first thing I knew something hit us from the rear.' It was a strong impact; she did not see it but she felt it. She thought perhaps that at that time the truck's rear wheels may have been off the pavement.

Police Officer Koonce testified that, from the debris, the collision occurred in the north lane on Armour about the middle of Ozark. He observed no tracks on the shoulder, which was dry. He tested defendant's car's brakes and 'the pedal went almost to the floor. * * * I had to pump them to obtain a braking effect.'

Defendant's own evidence favorable to plaintiff was: The force of the impact killed the motor in her car which 'just seemed to stop where it was. * * * It didn't move very far.' While her brakes worked all right that day and afterwards, shd did not know if her husband had had the brakes repaired after the collision; nor did she know if the impact was strong enough to have damaged the brakes. She did not know whether the point of the impact on the truck was on its side or its back end.

Richard A. Wolverton, 21, defendant's son (who was seated in the front seat with his mother), said that the point of impact on the truck 'must have been somewhere on the rear of his truck , probably the rear fender.' His mother 'barely grazed him, so she wasn't going much faster than he was.' In the police court proceeding hereinafter referred to and in the trial of Mrs. Renner's case against defendant, Richard testified that the examined the highway and thought that there was enough room in the north lane for another vehicle to pass his mother on the right. Richard testified at the instant trial that there was room on the shoulder to pass and not strike the bus stop sign.

Marilyn Wolverton, 16, defendant's daughter, was in her mother's car. At the trial of Mrs. Renner's case, Marilyn testified that the right front part of the car hit the truck 'at its left rear.'

Thomas Stuart witnessed the collision. He was standing 120-125 feet away. At the trial of Mrs. Renner's case, Stuart testified that he 'believed' that 'the right wheels of the truck were off the pavement and the left wheels were on. I noticed the passenger car turn to the right, and its right fender came in contact with the (truck's) left rear on the wheel.' At the instant trial, Stuart said: 'The car's right front fender struck approximately in the vicinity of the left rear wheel of the truck; * * * at the time Mrs. Wolverton made her turn to the right, Mr. Renner's car was mostly in front of it, of her car. * * * And so in making that turn she would make a turn towards his side or rear. * * * And at the time she turned to make the turn * * * her turn would be more towards the rear rather than the front' of the truck; that at the time he 'saw her turn or cut to the left, the Renner truck, at least the front of it, was ahead of her.'

Other evidence will be stated in the course of the opinion.

Defendant contends that her motions for a directed verdict should have been sustained because 'plaintiff's evidence and trial theory was that plaintiff's truck was hit from the rear,' and that 'from the rear' can only be construed as meaning that defendant's car struck the back end of the truck; and that that, under plaintiff's evidence, was an impossibility. However, the record clearly shows that such was not plaintiff's theory, and that plaintiff's evidence was not necessarily that the car struck the back end of the truck. It is true that Mrs. Renner, who felt but did not see the impact, said that the truck was 'hit from the rear'; and that Renner said he was 'hit from the rear,' 'struck from behind' or 'there was an impact on the rear end * * * someplace or other.' But, viewed in the light of the other evidence heretofore set out, a jury reasonably could find that the Renners' testimony meant that the rear part of the truck was struck, including the truck's left rear side. We so rule.

Such ruling disposes, adversely to defendant, of these contentions (based upon the fallacious assumption that plaintiff's theory, evidence and submission was that defendant's car collided with the back end of the Renner truck): That plaintiff was not entitled to the benefit of defendant's evidence (that her car collided with the left rear side and wheel of the truck), and that the trial court erred in permitting plaintiff's counsel to ask a plaintiff's medical witness two questions (containing the hypothesis that the truck 'was run into from behind') and in giving plaintiff-requested Instruction 1 (hypothesizing that the car struck the truck 'at or near the left rear thereof').

Defendant next says that 'a severe side blow to the truck' was 'physically impossible.' Defendant argues that the impact damage to both vehicles was relatively ...