Richeson v. Hunziker

• Decision Date: 11 September 1961
• Docket Number: No. 2,No. 47418,47418,2
• Parties: W. H. RICHESON, Administrator of The Estate of Howard Lee Richeson, Deceased, Respondent, v. Donald Earl HUNZIKER, Appellant. . Division
• Court: Missouri Supreme Court

Page 50

349 S.W.2d 50

W. H. RICHESON, Administrator of The Estate of Howard Lee Richeson, Deceased, Respondent, v. Donald Earl HUNZIKER, Appellant.

No. 47418.

Supreme Court of Missouri. Division No. 2.

Sept. 11, 1961.

Errol Joyce, Robert Devoy, Brookfield, Harry P. Thomson, Jr., Kansas City, for appellant.

James J. Wheeler, Keytesville, Edwards, Hess & Collins, Macon, for respondent.

LEEDY, Presiding Judge.

Action to recover damages for the allegedly wrongful death of Howard Lee Richeson. Upon a trial in the Chariton Circuit Court his administrator, as plaintiff, was awarded judgment for $17,000 from which defendant prosecutes this appeal.

Preparation of a transcript on appeal was greatly impeded and made difficult by reason of the death of the court reporter, her death having occurred about nine months subsequent to the trial, but before she had prepared a full transcript of the shorthand notes taken at the trial, as requested by defendant. It should be stated that defendant's motion to reverse the judgment and remand the cause for new trial because of the supposed impasse created by this circumstance was overruled 'without prejudice,' this on the theory that alternative methods should first be attempted in settling and certifying a transcript to this court. It is unnecessary to refer to the considerable number of steps taken in the latter connection, it being sufficient to say that because of the exigencies of the situation, this court granted leave to defendant to file 'a narrative statement in lieu of transcript.' Compiled by his counsel, and consisting of about 20 pages, it purports to contain a resume of the trial in its relevant incidents, including the proofs pro and con--all as recalled from memory 'with strong help from rather copious notes taken * * * during the trial.' Three other separately bound volumes supplemental to, and accompanying the 'narrative statement' were filed, viz.: (1) Photostatic copies 'of the files, court orders and docket entries' of the trial court; (2) a copy of the depositions of the following witnesses, each taken on behalf of defendant: W. H. Richeson, Cecil Irene Richeson, and Sharon Ann Richeson (being, respectively, the father, mother and sister of decedent) and marked 'exhibit A,' and (3) a transcript of the testimony of the plaintiff, W. H. Richeson, given upon the trial (as furnished by the subsequently deceased official reporter for use on the hearing of the motion for new trial) and marked 'Exhibit B.' Plaintiff moved to dismiss defendant's appeal because of the inadequacies of the narrative statement, averring that the same 'completely ignores the rules of this court, available sources of information * * * consists almost entirely of argumentative statements and shows on its face it is not an attempt in good faith to present the testimony given in this case.' Notwithstanding these strictures, the motion concludes with this request: 'In the event the court feels this motion to dismiss should be overruled, plaintiff respectfully requests that the court approve the narrative statement filed herein as the transcript on appeal and that this cause be docketed for determination on its merits.' The motion to dismiss was overruled, and it was ordered that, in accordance with plaintiff's request, such narrative statement, together with the above described exhibits and certified copies [of court files, etc.] be 'taken as the transcript of the record on appeal.' Such is the record before us and upon which we are asked to decide the questions presented. Even so, there are conflicts between some of the facts the narrative statement purports to detail and the same subject matter as portrayed by unchallenged photographs, plats., etc., in evidence, examples of which will be referred to in connection with the point or points to which they relate, and upon which they have some bearing. At this juncture we may add that such discrepancies have not simplified the court's task now at hand.

Decedent, Howard Lee Richeson, was the unmarried adult son of plaintiff, W. H. Richeson, and the latter's wife, Cecil Irene Richeson. He was born June 15, 1934, and died August 17, 1957 (after being removed to a hospital), as the result of injuries suffered earlier that day in the automobile accident out of which this action arises. He was riding as a guest-passenger of his 21-year-old friend and companion, the defendant, Donald Earl Hunziker, who was driving a 1950 or 1951 green Ford automobile owned by his father. No other persons were in the car. With defendant at the wheel, the car was proceeding southwardly on State Highway No. 11 enroute from Brookfield to Sedalia where the occupants expected to attend the State Fair. The casualty occurred about one-half mile south and east of a bridge or viaduct which carries the highway over and across the tracks of the Santa Fe Railroad. The facts immediately surrounding the casualty, and such others as may be pertinent, will be stated in connection with the point or points to which they relate.

Plaintiff submitted his case upon the hypothesis of defendant's negligence in driving at a high and excessive rate of speed under the circumstances shown in evidence, and, dependent on finding the issues for the plaintiff, the jury was also permitted to take into account aggravating circumstances, if any, attendant upon the fatality. The jury returned a verdict in favor of plaintiff in the sum of $17,000, and judgment was entered thereon.

Sec. 537.090 reads as follows: 'In every action brought under section 537.080, the jury may give to the surviving party or parties who may be entitled to sue, such damages, not exceeding twenty-five thousand dollars, as the jury may deem fair and just for the death and loss thus occasioned, with reference to the necessary injury resulting from such death, and having regard for the mitigating or aggravating circumstances attending the wrongful act, neglect or default resulting in such death.' (RSMo 1959 and V.A.M.S.)

Concededly, aside from regard to aggravating and mitigating circumstances, the recovery of damages under the foregoing section in this action must be limited to the pecuniary loss to the beneficiaries. Patison v. Campbell, Mo., 337 S.W.2d 72, 75; McCrary v. Ogden, Mo., 267 S.W.2d 670, 676; Hertz v. McDowell, 358 Mo. 383, 214 S.W.2d 546, 550. The point of difference between the parties in applying this principle to the facts of this case if best illustrated by the first of the reasons stated in support of the point assigning error in the overruling of defendant's motion for a new trial, the substance of which, as developed in the argument portion of the brief, is that there was no evidence 'establishing that the deceased was performing services of a pecuniary nature to the plaintiff at the time of his death.' (Italics ours.)

The first of the points relied on by defendant appears in his brief in this language: 'The Court erred in overruling the motion of defendant for a new trial for the reason there was no evidence to show the plaintiff suffered any pecuniary loss and the verdict of the jury was a result of the prejudice, passion, bias and sympathy and was so excessive as to require a new trial or at least a remittitur.' The reasons thus assigned as to why such ruling constituted error appear to be contradictory or inconsistent; that is, it is incongruous to say that plaintiff had no right of action (because the evidence failed to show he suffered any pecuniary loss) and in the same breath to assign excessiveness of the verdict so gross as to require a new trial or remittitur. We say this because the latter contention is, in effect, a concession that the evidence warranted a plaintiff's verdict, but in a lesser or reduced sum. To avoid foreclosing consideration of one or the other of such questions, we shall treat the reasons enumerated as constituting alternative assignments, and being contingent upon the disposition made of the preceding one.

We proceed to a consideration of the first aspect of the foregoing assignment under which the cases relied on by defendant are Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947, 145 A.L.R. 1176; McCullough v. W. H. Powell Lumber Co., 205 Mo.App. 15, 216 S.W. 803, and Lynch v. St. Louis Public Service Co., Mo.App., 261 S.W.2d 521.

At the time of his death decedent was engaged in the antenna business in Brookfield. He had previously been employed there (perhaps since 1954), but he continued to reside at home with his parents until in the winter of 1955 or 1956 when he commenced maintaining a room in Brookfield. Being unmarried, he thereafter divided his time between Brookfield and the home place near Rothville, his father having testified that the son spent a third of the time at the latter place--evenings, nights, Sundays and holidays. The parents farmed extensively, operating 160 acres of their own land and 350 acres or more of rented land. Their tractors were equipped with lights. The father testified that his son would help do the spring plowing, spending several hours ('three to four, mayby five') per evening when he worked. He did so in 1956 from February through April, and after doing that he disked approximately 150 acres of the bean land, and cultivated alone 100 acres of beans. He helped with the harvest that fall which extended over a period of about twenty days, devoting to that work from one to two hours two or three evenings a week.

In the spring of 1957 he plowed as he did in 1956, except he did it five or six evenings a week for approximately four weeks. He also disked preparatory to...