Roberts v. Atlas Life Ins. Co.

• Decision Date: 25 May 1942
• Citation: 163 S.W.2d 369,236 Mo.App. 1162
• Parties: G. R. ROBERTS AND BERTIE O. ROBERTS, RESPONDENTS, v. ATLAS LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT
• Court: Kansas Court of Appeals

163 S.W.2d 369

236 Mo.App. 1162

G. R. ROBERTS AND BERTIE O. ROBERTS, RESPONDENTS, v. ATLAS LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Kansas City

May 25, 1942

Appeal from the Circuit Court of Jackson County.--Hon. John F. Cook Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Warrick Koontz & Hazard for appellant.

(1) Reversible error was committed in giving Instruction No. 1 at plaintiff's request. (a) Instruction No. 1 was not supported by the evidence. Nowlin v. Kansas City Pub Serv. Co. (Mo. App.), 58 S.W.2d 324; Shaughnessy v. Morrison (Conn.), 165 A. 553; 22 R. C. L. 124; Hogan v. Kansas City Public Service Co. (En Banc 1929), 19 S.W.2d 707; Cole v. Uhlmann Grain Co., 100 S.W.2d 311; Lehmerts v. Otis Elevator Co. (Mo.), 256 S.W. 819; Whitehead v. Fogelman (Mo. App.), 44 S.W.2d 261; Alexander v. Hoenshell (Mo. App.), 66 S.W.2d 164; Martin v. Springfield Water Co. (Mo. App.), 128 S.W.2d 674; Monsour v. Excelsior Tob. Co. (Mo. App.), 115 S.W.2d 219; Alexander v. Hoenshell, 66 S.W.2d 164. (b) Instruction No. 1 gave the jury a roving commission to find negligence from several combinations of facts. State ex rel. Long v. Ellison (Mo.), 199 S.W. 984, 988; Nowlin v. Kansas City Pub. Serv. Co. (Mo. App.), 58 S.W.2d 324, 330. (2) The judgment should be reversed because of improper and prejudicial matter injected into the trial, and because the court erred in refusing to set aside the verdict and grant a new trial. Ryan v. Sheffield Car & Equipment Co., 24 S.W.2d 166; Hancock v. K. C. Terminal Ry. Co., 100 S.W.2d 570; Morris v. E. I. Du Pont De Nemours & Co., 139 S.W.2d 984; Daniels v. Lagensand (Mo. App.), 96 S.W.2d 911; Allen v. Wilkerson, 87 S.W.2d 1056; Whitman v. Carver, 88 S.W.2d 885; Olian v. Olian (Mo.), 59 S.W.2d 673; Hannah v. Butts (Mo.), 51 S.W.2d 4; 56 A. L. R. 1403; Lewellen v. Haynie (Mo.), 287 S.W. 634. (3) The verdict is excessive, as a matter of law. Steger v. Meehan (Mo.), 63 S.W.2d 115. (a) The jury disregarded the court's instruction that the amount received from another tort-feasor should be deducted from the amount found by them to have been the pecuniary loss sustained by the plaintiffs. Steger v. Meehan (Mo.), 63 S.W.2d 115; Myers v. Kennedy (En Banc 1924), 267 S.W. 810; Lumber Co. v. Dallas, 165 Mo.App. 49; Judd v. Walker, 158 Mo.App. 156. (b) In measuring plaintiffs' pecuniary loss, the jury made an allowance out of all proportion to the loss sustained by the plaintiffs. Oliver et ux v. Morgan, 73 S.W.2d 993; Steger v. Meehan, 63 S.W.2d 109; Marlow v. Nafziger Banking Co., 63 S.W.2d 115; McFetridge v. Kurn, 125 S.W.2d 912; Dugdale v. Power Co., 189 S.W. 836; Clark v. Atchison & Eastern Bridge Co., 62 S.W.2d 1079; Ice Company v. Tamm, 90 Mo.App. 189; Smoot v. Kansas City, 194 Mo. 513. (c) Plaintiffs limited their claim for all damages suffered by setting the amount at $ 3000 in the ad damnum clause of their petition and by failing to set up in their reply to the defendant's answer that the receipt of $ 2000 theretofore paid by another party was in addition to the said damages of $ 3000. Berry v. Kansas City Public Serv. Co., 121 S.W.2d 825; Myers v. Kennedy, 267 S.W. 810; Lumber Co. v. Dallas, 165 Mo.App. 49; Judd v. Walker, 158 Mo.App. 156; Staehlin v. Hochdoerfer, 235 S.W. 1060; Berry v. Kansas City Pub. Serv. Co., 121 S.W.2d 825. (4) The holding that a submissible case was made by plaintiffs. La Pierre v. Kinney, 225 Mo.App. 199, 19 S.W.2d 306.

Mitchel J. Henderson, Thos. E. Deacy, J. Carrol Combs, Herbert Jacob, and Henderson, Deacy, Henderson & Swofford for respondents.

(1) Instruction Number I was supported by the evidence. La Pierre v. Kinney, 225 Mo.App. 199, 19 S.W.2d 306. (2) Instruction Number I did not give the jury a roving commission. Riner v. Riek, 57 S.W.2d 724; Barnes v. Elliott, 251 S.W. 488; Klohr v. Edwards, 94 S.W.2d 99; Weisbrod v. Mueller, 285 S.W. 542; King v. Friederich, 43 S.W.2d 843; Woods v. Moore, 48 S.W.2d 202; Smart v. Raymond, 142 S.W.2d 100; Jamison v. Kansas City, 223 Mo.App. 684, 17 S.W.2d 621; Reed v. Cullor, 32 S.W.2d 296; Sutter v. Met. Street Ry. Co., 208 S.W. 851. (3) The evidence in regard to the haste with which defendant's agent, Joe Karr, left the scene of the accident, was material and competent and no prejudicial error was committed by the trial court in permitting these facts to be presented to the jury. City of St. Louis v. Worthington, 331 Mo. 182, 52 S.W.2d 1003; Courter v. Geo. W. Chase & Son Mercantile Co., 229 S.W. 622; Sotebier v. St. Louis Transit Co., 203 Mo. 702, 102 S.W. 651; Steinman v. Brownfield, 18 S.W.2d 528; Jones v. Mo. Freight Transit Corp., 225 Mo.App. 1076, 40 S.W.2d 465; Pogue v. Rosengrant, 98 S.W.2d 528; Jones v. Mo. Freight Transit Corp., 225 Mo.App. 1076, 40 S.W.2d 465. (4) The verdict of the jury was fair and equitable and not excessive. Smyth et al. v. Driv-Ur-Self Stations, 93 S.W.2d 61; McFetridge v. Kurn, 125 S.W.2d 912; Degan v. Jewell, 293 Mo. 80, 239 S.W. 66; Cunningham v. Doe Run Lead Co., 220 Mo.App. 38, 285 S.W. 757; Miller v. Hotel Savoy Co., 228 Mo.App. 463, 68 S.W.2d 929; Klusman v. Harper, 221 Mo.App. 1110, 298 S.W. 121; Pulsifer v. City of Albany, 226 Mo.App. 529, 47 S.W.2d 233; Steger v. Meehan, 63 S.W.2d 109; Roberts v. Kansas City Rys. Co., 204 Mo.App. 586, 228 S.W. 902; Manley v. Wells, 292 S.W. 67.

OPINION

SHAIN, P. J.

In this action the parents of a minor daughter seek damages for death of said daughter, alleging as their cause of action the negligence of defendant's agent and employee as the cause of a collision between an automobile in which their said daughter was riding and an automobile being driven by defendant's agent.

It appears that at the time of aforesaid collision said daughter was a passenger in an automobile owned and driven by one L. L. Pahlow. As to L. L. Pahlow, no mention is made other than that "Daisy May Roberts was riding as a passenger in an automobile being driven by one L. L. Pahlow, . . ."

In other words, no allegation in plaintiffs' petition alleges or indicates that Pahlow was a joint tort-feasor . Only negligence on part of defendant's agent is alleged and the injury causing death is alleged as the direct result of said agent's negligence. Negligence alleged is "high, careless, unlawful and negligent rate of speed, failure to keep lookout and keep car in control, failure to keep as near as possible to right side of highway and negligently driving defendant's car into and against the automobile in which plaintiffs' minor daughter was a passenger.

The last three paragraphs of plaintiffs' petition are as follows:

"Plaintiffs further state that as a direct result of all the above and foregoing careless and negligent acts on the part of the defendants herein, their agents, servants and employees, defendants' said automobile was caused to run into, against and collide with the automobile in which plaintiffs' said daughter, Daisy Roberts, was riding, and that as a direct result thereof, the said Daisy Roberts was so seriously and mortally injured that she immediately thereafter died.

"Plaintiffs further state that as a direct result of the death of their said daughter they have been deprived of her services and have suffered a pecuniary loss and damages in the sum of Three Thousand ($ 3000), together with the costs of this action.

"Wherefore, plaintiffs pray judgment against the defendants herein for the sum of Three Thousand ($ 3000) Dollars, together with the costs of this action."

Defendant joined issue by general denial and "for further answer, said defendant states that the plaintiffs have heretofore received settlement and satisfaction for the pecuniary loss sustained by them on account of the matters alleged in plaintiffs' petition, having heretofore received from L. L. Pahlow, or his representatives, the sum of two thousand ($ 2000) for that purpose.

"Wherefore, having fully answered, said defendant prays to be discharged with its cost."

The cause was tried on the theory of reply by general denial of allegations of answers. Under such theory, the plaintiffs stand as denying receipt of $ 2000 by reason of satisfaction or otherwise. However, in the trial it was admitted that plaintiffs, by way of settlement with Pahlow, had received $ 2000 and signed a release, reserving however right to sue defendant herein. Aforesaid settlement was prior to bringing this action.

Trial was to jury; jury verdict was for plaintiffs in full sum prayed for; judgment was in accordance; and from said judgment defendant has appealed.

We will continue to designate parties as plaintiffs and defendant.

This cause was argued and submitted in March Term, 1941, and an opinion filed; thereafter motion for rehearing was granted and upon resubmission, supplemental briefs were filed.

The appealing defendant presents five points upon which it claims error as follows:

"I.

"Plaintiffs limited their claim for all damages suffered by setting the amount at $ 3000 in the ad damnum clause of their petition and by failing to set up in their reply to the defendant's answer that the receipt of $ 2000 theretofore paid by another party was in addition to the said damages of $ 3000.

"II.

"The payment to the plaintiffs of $ 2000 prior to the trial before the lower court was made by a joint or concurrent tort-feasor.

"III.

"Reversible error was committed in giving instruction No. 1 on the ground that it is not supported by the evidence and was not the proximate cause of the collision.

"IV.

"Instruction No. 1 gave the jury a roving commission in that it permitted recovery on account of negligence at widely divergent points referred to in the evidence.

"V.

"The holding that a submissible case was made by plaintiffs on...